PLJ 2022 Cr.C. 1
Last seen evidence--
----Last seen--It is settled law that evidence of last seen should be reported to police immediately to rule out possibility of concoction.
[P. 8] D
2017 SCMR 2026.
Last seen evidence--
----This fact has made whole story of last seen an afterthought of prosecution to craft evidence against appellant in a case of no evidence--Last seen evidence is a very weak type of evidence and great care is required while appreciating such evidence. [P. 9] E
PLD 2018 SC 813.
Confession--
----It is settled by now that such confession is always made for a purpose and due to some motivating factors. [P. 10] G
2006 SCMR 231.
Extra-Judicial Confession--
----Evidence--It is settled law that evidence of extra-judicial confession is to be taken and assessed with high degree of case as such evidence is often received through enraged victims or their legal heirs and overenthusiastic officers of law. [P. 12] I
Law of Evidence by Chief Justice M. Monir Vol. I, 78th Edn.
At p. 429 ref.
Evidence--
----It is common practice in our society that such type of evidence is concocted, usually when no direct incriminating material is available to connect a suspected person with commission of crime.
[P. 12] J
PLD 2019 SC 64.
Extra-Judicial Confession--
----Appreciation of evidence--It is trite principle of appreciation of evidence that extra-judicial confession can be taken as corroborative piece of evidence, if it finds support from other of unimpeachable character but in present case, when evidence of last seen, as discussed above, is not up to mark to be believed, extra-judicial confession cannot be relied upon to convict appellant.
[P. 13] L
2016 SCMR 1144.
Circumstantial evidence--
----In cases where prosecution wholly relies upon circumstantial evidence, it is bounden duty of prosecution to provide all links of chain of circumstantial evidence, so that one edge of chain should touch dead body, while other to neck of accused to rule out all hypothesis of innocence of accused--Catena of judgments of august Supreme Court of Pakistan has settled legal principle that, in cases of circumstantial evidence, even if there is slightest doubt, it is more desirable to discard such type of evidence than to rely upon it to convict an accused for an offence of capital punishment.
[P. 13] M
2017 SCMR 2026.
“Admission”--
----Rule of “admission” of a fact, if not cross-examined by opposite party, is applicable in civil cases only and this concept is alien to criminal law. [P. 14] N
2018 SCMR 149.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 364-A & 376--Conviction and sentence--Challenge to--Qatl-i-amd--Benefit of doubt--Evidence of last seen--Extra judicial confession--This is a case of circumstantial evidence--In such like cases, usually prosecution tries to concoct evidence, in order to prove its case against person, to whom prosecution considers its real culprit and against whom no direct evidence is available--Witnesses of last seen saw deceased, while she was taken away towards Crop of Jowar, a deserted area, by appellant and they did not inquire or stop appellant, being close relatives of deceased--It further does not appeal to common sense that witnesses of last seen who were close relatives of complainant and deceased were not aware of occurrence for good three days--An unfortunate and brutal occurrence like one in question did not come to knowledge of witnesses of last seen, who were admittedly not only close relatives of complainant--It is plea of appellant that on day of occurrence, PW.7 and his brother were not in village rather they were in Lahore at their work place and same plea had been supported by prosecution’s own witness PW.10 who denied presence of witnesses of last seen in village on fateful days--Next piece of evidence relied upon by prosecution is alleged extra-judicial confession of appellant--There was no reason, whatsoever, for appellant to admit his guilt before prosecution witnesses and prosecution case becomes further cloudier in a situation, when accused did not choose to surrender himself before those witnesses and allegedly ran away after admitting his guilt--It does not attract to a prudent mind that if he was not going to surrender and place himself at mercy of these witnesses, what induced him to make such alleged extra-judicial confession to inculpate himself and then run away--Held: When all aforementioned facts are viewed collectively, same give rise to strong presumption that story of extra-judicial confession has been concocted just to strengthen another tainted piece of evidence i.e. evidence of last seen--Further held: It is settled law that mere heinous or gruesome nature of crime shall not detract Court of law in any manner from due course to judge and make appraisal of evidence in a laid down manner and to extend benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused--Appeal was allowed.
[Pp. 6, 7, 10, 11, 13, 14 & 15] A, B, C, F, H, K & O
2019 SCMR 1994, 2011 SCMR 1233 and 2021 YLR Note 71.
Mr. Nadeem Ahmad Tarar for Appellant.
Mr. Ansar Yasin, Deputy Prosecutor General for State.
Miss Musarrat Parveen Jabeen, Advocate (for Petitioner in Crl. Revision No. 160/2016).
Date of hearing: 24.9.2021.
PLJ 2022 Cr.C. 1
[Lahore High Court, Multan Bench]
Present: Ali Zia Bajwa, J.
MUHAMMAD ZEESHAN etc.--Appellants
versus
STATE--Respondent
Crl. A. No. 93-J & Crl. Rev. No. 160 of 2016, heard on 24.9.2021.
Judgment
Through this single judgment, I intend to decide above titled Criminal Appeal No. 93-J of 2016 filed by Muhammad Zeeshan (hereinafter ‘appellant’) against his conviction and sentence and Criminal Revision No. 160 of 2016 filed by Muhammad Tufail, complainant for enhancement of sentence awarded to the appellant.
2. Through Criminal Appeal No. 93-J of 2016, Muhammad Zeeshan appellant has challenged the conviction and sentence awarded to him by the learned Additional Sessions Judge, Chichawatni (Sahiwal) vide judgment dated 25.02.2016, in case FIR No. 273/2012 dated 22.07.2012 for offences under Sections 302 and 376, PPC, registered with police station Kassowal, Chichawatni, District Sahiwal, in the following terms:-
Ø Under Section 302(b) PPC to undergo rigorous imprisonment for life, as Ta’zir. He is also directed to pay an amount of Rs. 1,00,000/- (Rupees One Lac) to the legal heirs of deceased as compensation under section 544-A, Cr.P.C. In case of default, he will have to undergo further Six months S.I. The amount of compensation, should be recovered as arrears of land revenue.
Ø Under Section 364-A, PPC to undergo rigorous imprisonment for life.
Ø Under Section 376, PPC to undergo 25 years rigorous imprisonment with fine of Rs.50,000/-
Ø All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. also extended to the appellant.
3. According to the prosecution version as furnished in the crime report, on 19.07.2012, Rao Saleem (PW.10) informed the local police through his statement Ex.PE that, his niece namely Laiba, daughter of Muhammad Tufail aged about 5 yesars went outside for playing and last time she was seen on a water-course in the fields near her house but thereafter, she did not return to her house. That, upon search by her father i.e. complainant of the case along with the witnesses Rao Shakeel and Rao Abdul Qadeer, her dead body was recovered from sorghum crop (Jowar). That, at that time, there were marks on the neck of the deceased, her lips were bluish and froth was coming out of her nose. Thereafter, on 22.07.2012, Muhammad Tufail complainant (PW5) filed written application (Exh.PC), on the basis whereof formal FIR (Ex.PB) was jotted down. Appellant was nominated by the complainant through his supplementary statement on 23.07.2012.
4. Investigation of the case was conducted by Muhammad Nawaz S.I. (PW.12) and after its completion, report under Section 173, Cr.P.C. was prepared and submitted before the learned trial Court. Trial was commenced by framing the charge against the appellant, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellant, produced as many as fifteen witnesses, before the learned trial Court.
5. Muhammad Tufail (PW.5) is complainant of the case, Muhammad Shakil (PW.6) is witness of extra-judicial confession and Muhammad Kaleem (PW.7) is witness of last seen and extra-judicial confession of appellant. Dr. Sadaf Khalid SWMO (PW.11) conducted autopsy on the dead body of Laiba Bibi. Muhammad Nawaz S.I. (PW.12) is investigating officer of the case. The remaining prosecution witnesses, more or less, are formal in nature.
6. After completion of the prosecution evidence, statement of the appellant as envisaged under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed innocence and pleaded his false implication in the case. He did not opt to get his statement recorded under Section 340(2) Cr.P.C. however, in his defense, he produced Ghulam Muhammad as DW. 1 and Riaz as DW.2. He also produced documentary evidence Ex.DA to Ex.DF and Mark A to Mark C to prove the absence of witnesses of last seen evidence. Upon completion of the trial, learned trial Court found the case against Muhammad Zeeshan appellant to have been proved beyond reasonable doubt and, thus, convicted and sentenced him as mentioned and detailed above, hence, this appeal and revision before this Court.
7. Arguments heard, record perused.
8. Perusal of record transpires that no direct evidence of this unfortunate occurrence is available. Apart from medical evidence, case of prosecution against the appellant, mainly hinges upon:
(i) Evidence of last seen; and
(ii) Extra judicial confession
9. I would like to take up the evidence of last seen first to determine its sanctity and probative value. Evidence of last seen has been provided by PW.7, Muhammad Kaleem. Allegedly, he along with his brother, Muhammad Waseem saw the appellant while taking the deceased with him towards sorghum crop (Jowar). Occurrence in this case took place on 19.07.2012 and crime was reported to police on 22.07.2012 with an extraordinary delay of three days. It is astonishing that neither the fact of deceased being last seen in the company of appellant was narrated in the crime report nor the names of witnesses of last seen were mentioned therein. In complaint Exh.PC it was only mentioned that two unknown persons took away the ill-fated deceased girl and murdered her after rape. It is assertion of PW.7 that on 19.07.2012, when he along with his brother Muhammad Waseem (since give-up) was going towards Bus stand to go to their work- at Lahore, they saw the appellant taking the deceased Laiba towards sorghum crop (Jowar). It is also his version that they could not inform the .complainant about the fact timely after the occurrence as they were in Lahore and they came to know about the occurrence on 22.07.2012, when they contacted their mother on phone. Thereafter they came to the village and told the complainant about the deceased Laiba Bibi last seen in the company of the appellant, who was taking her towards sorghum crop (Jowar).
“I did not tell my mother that I had seen Laiba Bibi with Zeeshan on 19-07-2012 in the Jawar crop of Mubarak AH. I had not told the above said fact to the complainant or any my relative through telephone from Lahore. My mother told me that an unknown person had committed murder of Mst. Laiba Bibi. I did not tell about Zesshan accused.”
It is further important to mention the statement of witnesses regarding their arrival and informing the complainant about the occurrence, are at variance. As per the statement of Muhammad Kaleem P.W.7, they reached in the village on 23.07.2012 at about 02/03 a.m. and told the above stated fact to complainant in the morning of 23.07.2012 at about 08:00 a.m, whereas, according to complainant, these witnesses reached in the village at night of 22.07.2012 and told him qua the last seen fact. Both PW.7 and complainant stated that they informed the local police about the last seen details in the morning of 23.07.2012 but Muhammad Shakeel P.W.6 stated that Munammad Kaleem PW.7 and Muhammad Waseem came to the village on 23.07.2012 at 05:00 p.m. and thereafter, they informed the complainant about the fact of deceased last seen in company of appellant. So, it emerges from the record that there are three versions of prosecution witnesses about the arrival of witnesses of last seen and informing this fact to the complainant and then police. It is admitted by all the witnesses that on 23.07.2012, police came to the village only once. As per the version of complainant and PW.7, police came to the village early in the morning and they informed the police about the factum of last seen, whereas according to the version of PW.6, police came at about 3:00/4:00 p.m. and remained there for about one and half hour.
“On 19-07-2012, on the day of occurrence, both Waseem and Kaleem were working in the above said factory. It is correct that on 19.07.2012 Waseem and Kaleem were not present in the Chak as they were present in Lahore”
It was incumbent upon the prosecution to prove the presence of witnesses of last seen in village at the relevant time and thereafter their departure for Lahore to their work place on 19.07.2012. Nothing plausible was brought on the record to prove beyond reasonable doubt that deceased was last seen in the company of deceased by the prosecution witnesses and thereafter they left for their job in Lahore. Another dent to prosecution story is the delay in reporting the matter to the police. It is settled law that evidence of last seen should be reported to the police immediately to rule out the possibility of concoction. In this regard I am fortified from the view of august Supreme Court of Pakistan in Fayyaz Ahmad’s Case,[1] where august Court had enlisted the points to be considered while relying upon the evidence of last seen. Relevant paragraph is reproduced here:
(i) There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the Prosecution.
(ii) The proximity of the crime seen plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit.
(iii) The timing of that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him.
(iv) There must be some reasons and objects on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark.
(v) Additionally there must be some motive on the part of the accused to kill the deceased otherwise the Prosecution has to furnish evidence that it was during the transit that something happened abnormal or unpleasant which motivated the accused in killing the deceased.
(vi) The quick reporting of the matter without any undue delay is essential, otherwise the prosecution story would become doubtful for the reason that the story of last seen was tailored or designed falsely, involving accused person. (emphasis supplied)
Beside the above, circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak type of evidence in cases involving capital punishment.
(vii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts, which may arise if it is not done in a proper and fair manner.
(viii) The Court has also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the trouble, if it was not a pre-planned and calculated murder.”
“5. ...The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.”
13. All these facts, when taken together and analyzed as per the principles evolved by the Constitutional Courts for appraisal of such evidence, lead to the inference that prosecution story regarding last seen evidence is not free from doubts and same is not worth reliance.
“Extra-Judicial confessions are those which are made by the party elsewhere than before a magistrate or Court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes a Magistrate who is not especially empowered to record confessions under section 164 of the Code of Criminal Procedure or a Magistrate so empowered but receiving the confession at a stage when section 164, Cr.P.C. does not apply.”
“19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off, (ii) to ventilate the suffocating consciende and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witnesses before whom extra-judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought firstly, when a person is sufficiently trapped and secondly, from one who is authoritative, socially or officially... “
“Evidence of extrajudicial confession, universally regarded as inherently weak, does not present a brighter picture either; why the appellant would make his breast clean to embrace formidable consequences by abandoning his safe anonymity, in the absence of any incriminatory evidence thenceforth, is really mind boggling.”
Same view was taken by august Court in Hamid Nadeem’s case[6] by holding that:
“The available record contains no reason why the appellant (and his co-accused) opted, on the third day of occurrence, to make extra judicial confession about such heinous offences when they were neither nominated in the F.I.R. nor even suspected.”
“Evidence of oral confessions of guilt ought to be received with great caution. Not only does considerable danger of mistakes arise from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own meaning and infirmity of memory, but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence to magnify slight grounds of suspicion into sufficient proof-together with the character of the witnesses, who are sometimes necessarily called in cases of secret and atrocious crime-all tend to impair the value of this kind of evidence, and sometimes lead to its rejection, where in civil actions, it would have been received.”
that:
“42. ...this Court has repeatedly held that evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession. It is always looked at with doubt and suspicion due to the ease with which it may be concocted. The legal worth of the extra judicial confession is almost equal to naught, keeping in view the natural course of events, human behaviour, conduct and probabilities, in ordinary course. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration.”
“11. ...Evidence of this type because of its being concocted easily is always looked at with doubt and suspicion. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration...”
“5. ... To carry conviction on a capital charge it is essential that Courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. “Reasonable Doubt” does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows, To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without any missing link, otherwise at random reliance on such evidence would result in failure of justice.”
“4. ... a fact would be deem to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases ...”
19. Keeping in view the above stated facts and circumstances, criminal appeal, No. 93-J of 2016, filed by the appellant against his conviction and sentence, is allowed and he is acquitted of the charges leveled against him. Resultantly, Criminal Revision No. 160 of 2016 filed by the complainant for enhancement of sentence of appellant is dismissed being devoid of any force. Appellant shall be set at liberty forthwith, if not required in any other case.
(A.A.K.) Appeal allowed
[1]. Fayyaz Ahmad v.The State, (2017 SCMR 2026).
[2]. Muhammad Abid v. The State and another, (PLD 2018 SC 813).
[3]. Law of Evidence by Chief Justice M. Monir, Volume 1, 78th edition, published by Universal Law Publishing Co. at page 429.
[4]. Sajid Mumtaz and others v. Basharat and others, (2006 SCMR 231).
[5]. Wajeeh-ul-Hassan v. The State, (2019 SCMR 1994).
[6]. Hamid Nadeem v. The State, (2011 SCMR 1233).
[7]. Law of Evidence by M. Monir, Volume I, 78th edition, published by Universal Law Publishing Co. at page 491.
[8]. Mst. Asia Bibi v. The State and others, (PLD 2019 SC 64).
[9]. Nasir Javaid and another v. The State, (2016 SCMR 1144).
[10]. Fayyaz Ahmad v. The State, (2017 SCMR 2026).
[11]. Nadeem Ramzan v. The State, (2018 SCMR 149).
[12]. Muhammad Imran v. The State and another, (2021 YLR Note 71).
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