--Admissibility of circumstantial evidence as Res gestae, a form of an exception to hearsay; Res gestae means 'part of matter' and has evolved as an umbrella term referring, in general terms, to statements which are so bound up with a particular transaction as to form an important part of that transaction-

 PLJ 2022 Cr.C. 995 (DB)
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Muhammad Amjad Rafiq, JJ.
RIZWAN AKHTAR alias RAZI BAWA and another--Appellants
versus
STATE --Respondent
Crl. A. No. 1112-J & M.R. No. 290 of 2015, decided on 18.5.2021.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 367-A, 377, 302(b) & 34--Conviction and sentence--Challenge to--Witnesses of last seen, PW-11 and PW-12 are real brothers inter se and are khalazad of complainant--Witnesses told this fact after two days to complainant--Conduct of these two witnesses is highly improbable who did not inform complainant in time--Last seen evidence is a weak type of evidence--Witness does not claim himself to be eye-witness of occurrence rather his evidence is maximum of "Wajtakkar" which is a week type of evidence and is not believable in absence of independent corroborative piece of evidence which is conspicuously missing in present case--Illustration (a) to Article 119 of Qanun-e-Shahadat Order, 1984 put burden on prosecution to prove extra judicial confession made by accused to a third party and such burden requires higher degree of probability particularly when case is of circumstantial evidence--Medical evidence though may confirm ocular evidence with regard to seat of injury, nature of injury, kind of weapon used in occurrence but it would not connect accused with commission of crime--Admissibility of circumstantial evidence as Res gestae, a form of an exception to hearsay; Res gestae means 'part of matter' and has evolved as an umbrella term referring, in general terms, to statements which are so bound up with a particular transaction as to form an important part of that transaction--Circumstantial evidence in this case lacks above qualification; therefore, cannot be believed in any circumstances--One tainted piece of evidence could not corroborate another piece of tainted evidence--Appeal allowed.

                                [Pp. 997, 998, 999 & 1000] A, B, C, D, E, F, G & H

Mr. Muhammad Ahsan Bhoon Advocate assisted by Mr. Irfan Gondal Advocates for Appellant (Rizwan Akhtar).

Mr. Tazheer Shahzad Tarrar Advocate for Appellant (Habib Khan).

Mr. Muhammad Nawaz Shahid, Deputy Prosecutor General for State.

Ch. Lehrasib Khan Gondal Advocate for Complainant.

Date of hearing: 18.5.2021.

Judgment

Muhammad Amjad Rafiq, J.--Appellants Rizwan Akhtar alias Razi Bawa and Habib Khan alias Tapori, through the afore-mentioned appeal have assailed the Judgment dated 31.07.2015 passed by learned trial Court in case FIR No. 79 dated 11.03.2013 under Sections 367-A/ 377/ 302, P.P.C. Police Station Saddar, District Mandi Bahauddin; Murder Reference was also sent by the learned trial Court for confirmation of the death sentence of the appellants or otherwise. Appellants were convicted and sentenced through impugned judgment as under:--

(i)       Convicted under Section 367-A, P.P.C. read with Section 34, P.P.C. and sentenced to rigorous imprisonment for 25 years each with fine of Rs. 1,00,000/-each and in default thereof to undergo simple imprisonment for a further period of six months each.

(ii)      Convicted under Section 377, P.P.C. read with Section 34, P.P.C. each and sentenced to rigorous imprisonment for 10 years with fine of Rs. 1,00,000/-each and in default thereof to undergo simple imprisonment for a further period of six months each.

(iii)     Convicted under Section 302(b), P.P.C. read with Section 34, P.P.C. each and sentenced to death as Ta'zir with payment of compensation of Rs. 200,000/-to the legal heirs of Mohammad Nadeem deceased under Section 544-A, Cr.P.C. each and in default thereof to undergo simple imprisonment for a further period of six months each.

2. Briefly, the prosecution case is that on the evening of 10.03.2013, Muhammad Nadeem son of Muhammad Saleh complainant, aged about 12 years went out of his house to a nearby playground but did not return; on search by complainant and witnesses they found dead body of Muhammad Nadeem lying in a deserted residential quarter of Rural Health Center (RHC), Dhok Kasib; upon which crime was reported against unknown accused on 11.03.2013 at 12.30 am. Complainant later nominated the present accused persons through supplementary statement on 12.03.2013 on the basis of information supplied by witnesses of last seen and Wajtakar.

3. Heard. Record perused.

4. There was no direct evidence against the appellants; Prosecution case hinges upon the evidence of (1) Last seen (2) Wajtakar (3) Extra judicial Confession, (4) Medical Evidence and (5) recovery.

i.      LAST SEEN EVIDENCE

5. Witnesses of last seen, Muhammad Anar PW-11 and Muhammad Khan PW-12 are real brothers inter se and are khalazad of the complainant, who stated in their statements before the learned trial Court that on 10.03.2013 at degar wela (evening), they saw Muhammad Nadeem deceased sitting in between Rizwan Akhtar alias Razi Bawa and Habib Khan alias Tapori appellants while riding on a motor cycle who were proceeding toward Rural Health Center, Dhok Kasib. The witnesses told this fact after two days to the complainant on 12.03.2013 when their statements were recorded by the police; complainant, however, admitted in cross-examination that both these witnesses were present in the Namaz-e-Janaza of deceased on 11.03.2013. Conduct of these two witnesses is highly improbable who did not inform the complainant in time. Even otherwise last seen evidence is a weak type of evidence which is procured at any time during the investigation when direct evidence is not available to the prosecution. Reliance in this regard is placed on the case reported as "Altaf Hussain v. Fakhar Hussain and another" (PLJ 2008 SC 687).

ii.     EVIDENCE OF WAJTAKKAR

6. Witness of Wajtakkar Mazhar Iqbal PW-15 stated in his statement before the learned trial Court that on 10.03.2013 between Asar and Maghrib time, he was going to his house, when he reached near RHC Dhok Kasib, he saw a motor cycle parked near the wall; in the meantime, both the appellants alighted from the wall, sat on the motorcycle and went towards Veterinary Hospital. On 12.03.2013 he narrated the above said fact to the complainant as well as the police. In his cross-examination, he has admitted that he is step-brother of Saleh (complainant). The question arises that how he being step paternal uncle of the deceased remained unaware of murder of Nadeem and about his funeral. He has also not mentioned the registration number of the motorcycle of the appellants. This witness does not claim himself to be the eye-witness of the occurrence rather his evidence is maximum of "Wajtakkar" which is a week type of evidence and is not believable in absence of independent corroborative piece of evidence which is conspicuously missing in the present case. Reliance is placed on the case titled "Muhammad Mansha Kausar v. Muhammad Asghar and others" (2003 SCMR 477).

iii.    EXTRA JUDICIAL CONFESSION

7. Other type of evidence in this case is of informal admission which in our system is known as extra judicial confession, which means an out of Court statement which is adverse to the case of the person making it. The reason that admissions are admissible by way of exception to the hearsay rule is that it is thought that people rarely say things adverse to themselves unless those things are true. Illustration (a) to Article 119 of Qanun-e-Shahadat Order, 1984 put burden on the prosecution to prove the extra judicial confession made by the accused to a third party and such burden requires higher degree of probability particularly when case is of circumstantial evidence.

8. Witness of Extra Judicial Confession, Ghulam Rasool PW-16 being close relative of the complainant stated that on 24.03.2013, he was present along with Anser (given up PW) on Railway Station Chailianwala to go Dheerkay Kalan when at about 10/10:15 a.m. both the appellants confessed their guilt individually before them; he is interested witness and cannot be relied upon; As far as implication of the appellants through the statement of this PW is concerned, we are of the view that alleged extra judicial confession made by the appellants before this witness is of no avail to the prosecution as the evidence of extra judicial confession is a weak type of evidence. Reliance is on Tahir Javed v. The State (2009 SCMR 166).

iv.    MEDICAL EVIDENCE

9. Medical evidence though may confirm the ocular evidence with regard to the seat of the injury, nature of injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. Reliance is placed in the case of Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103). The DNA test was not applied on the appellants in this case. Therefore, prosecution lacks corroboration through this piece of evidence.

v.     RECOVERY

10. Recovery of blood-stained piece of concrete P-6 from appellant Habib Khan alias Tapori and recovery of blood stained Qameez P-3 of appellant Rizwan Akhtar alias Razi Bawa on his lead is inconsequential particularly when Qameez P-3 and concrete P-6 were not sent for chemical analysis; even recovery of motorcycle is of no use for the prosecution when witness did not depose about its registration number.

11. Though Article 19 of Qanun-e-Shahadat Order, 1984 supports the admissibility of circumstantial evidence as Res gestae, a form of an exception to hearsay; Res gestae means 'part of the matter' and has evolved as an umbrella term referring, in general terms, to statements which are so bound up with a particular transaction as to form an important part of that transaction. In other words, the evidence must have such obvious relevance in relation to other evidence that it needs to be admitted in order to 'complete the picture'. This vague concept or type of inadmissible evidence has found its place in the law of evidence in the form of admissible evidence only if it qualifies the following characteristics;

1.       Spontaneous exclamation, which means, person involved, whether a victim or a witness, says something instinctively which is seen as intrinsic to the event in question. The requirements here are contemporaneity with the event and absence of concoction. If the person has had time to think about what he has seen or about what has happened, there is a risk that the statement has lost its spontaneity, it is no longer unpremeditated.

2.       Contemporaneous physical condition; which means person victim of assault or in a condition has personally present and informed the witness about tragedy or misdeeds committed by the alleged accused.

3.       Present intention; if the victim before the occurrence has posted the intention of accused to the witness about the conduct of the alleged accused.

4.       Statement accompanying an act; a statement is also admissible as part of the res gestae if it contemporaneously accompanies and explains the act of person making it . The act and statement must be inextricably linked.

12. Honourable Supreme Court in Judgment reported as Shabbir Hussain alias Sukku v. The State (PLD 2003 SC 368), has explained almost similar principles. We have noted that circumstantial evidence in this case lacks above qualification; therefore, cannot be believed in any circumstances.

13. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one conclusion, and, in order to find the guilt of a person accused of criminal charge, the facts proved must be incompatible with his innocence and incapable of any explanation upon any other reasonable

hypotheses than that of any of his guilt; reliance is on Lal Shah v.The State (1970 SCMR 743).

14. It is settled by now that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated. Reliance is placed on case titled "Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410).

15. On the touchstone of the golden principle referred above, not a single piece of prosecution evidence inspires confidence and even the accumulative effect of whole prosecution case does not advance the case of prosecution for the reasons discussed above. Therefore, we are of the considered view that prosecution has failed miserably to bring home the guilt of the appellants, who are entitled for the benefit of doubt not as a matter of grace but as a matter of right as held by the Apex Court in the case of Muhammad Akram v. The State (2009 SCMR 230).

16. Resultantly, the appeal is allowed, the convictions and sentences recorded by the learned trial Court against the appellants through the impugned judgment dated 31.07.2015 are set aside and they are acquitted of the charges. The appellants are in jail, they shall be released forthwith if not required in any other case.

17. Murder Reference is answered in the Negative and death sentences of appellants (Rizwan Akhtar alias Razi Bawa and Habib Khan alias Tapori) are not confirmed.

(A.A.K.)          Appeal allowed