PLJ 2023 Cr.C. (Note) 76
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 / 324 / 337-F(ii) / 337-L(ii) / 148/149--Qatl-i-Amd--Night time occurrence--Source of light was available at spot--No such bulb was taken--Motive not proved--Postmortem examination was conducted about twenty two days after occurrence--No PFSA report of weapon were matched--Police declared some accused innocent in investigation--Co-accused persons acquitted on same set of evidence--Acquittal of--Occurrence in this case took place at 3:00 A.M. (mid night), when a large number of assailants launched attack--Witnesses also gave details about nature, dimension, locale as well seat of injuries caused to deceased as well as injured persons by individual accused persons, but in facts and circumstances of case, such minute explanation could only be expected from tutored witnesses--Prosecution took care and showed source of light i.e. bulb at place of occurrence, but during investigation no such bulb was taken into possession by investigating officer during spot inspection to prove that any source of light was available at spot--During statement under section 342 Cr.P.C accused admitted inimical terms towards complainant due to abduction of his sister--Prosecution has not been able to satisfactorily establish motive part of occurrence--Postmortem examination of one deceased was conducted about twenty two days after occurrence, but Court have not found anything from record that till period deceased remained alive--Postmortem examination of second deceased was conducted ten hours after occurrence--Medical examination of one injured was conducted; same is time of medical examination of lady injured, second lady injured and one deceased/then injured--Though all these injured were medically examined by one and same doctor--Medical evidence also goes on to cast serious doubts in prosecution case--Kalashnikov recovered from accused/appellant was not sent to PFSA alongwith empties recovered from spot and though pistol recovered from second appellant was sent to PFSA but same could not be matched with empties collected from spot--Whereas, Rifle 7-mm which has been labeled with third accused/appellant could not be used against him for reason that it was not recovered on his lead--Eight other accused were nominated in FIR with specific attributions, but all of them including one accused/appellant were found innocent during investigation--Opinion of police may not be binding on court, but considering facts and circumstances of case, such observation if otherwise, is finding support from material on record--Three human lives have been slain with no apparent cause so far, yet indicators cannot fix liability until evidence confirming standard required in law of evidence--They are acquitted of charges against them. [Para 8, 9, 10, 11, 12, 13 & 14] A, B, C, D, E,
F, G, H, I, J, K, L
PLD 2009 SC 436; 2017 SCMR 564; PLD 2021 SC 600; 2017 SCMR 2026; 2015 SCMR 840; 2017 SCMR 622; 2015 SCMR 137 ref.
M/s. James Joseph, Rana Muhammad Nadeem Khan Kanju and Malik Muhammad Yasin Thaheem, Advocates for Appellants with Mazhar (accused/appellant) on bail.
Mr. Adnan Latif Sheikh, Deputy Prosecutor General for State.
Kh. Qaisar Butt and Malik Muhammad Majid Shahbaz Khokhar Advocates for Complainant.
Date of hearing: 22.11.2022.
PLJ 2023 Cr.C. (Note) 76
[Lahore High Court, Multan Bench]
Present: Shakil Ahmed and Muhammad Amjad Rafiq JJ.
RAB NAWAZ and others--Appellants
versus
STATE--Respondent
Crl. A. No. 559, 640, PSLA No. 69 & 78, Crl. Rev. No. 342/2018,
heard on 22.11.2022.
Judgment
Muhammad Amjad Rafiq, J.--Considering somewhat chequered background of the case, before proceeding ahead to discuss its merits/demerits, for ready reference, it will be better to place the facts of the case in seriatim as simple as possible.
2. A private complaint titled “Muhammad Nawaz son of Talib Hussain versus Rabnanwaz. etc” under Sections 302/324/337-F (ii)/337-L(ii)/148/149, PPC police station Hawaili Koranga Kabirwala, District Khanewal, (arising Out of an FIR No. 140 dated 28.07.2007 under Sections 302, 324, 337-A(i), 337-F(i), 148/149, PPC police station Nawan Shehr, Tehsil Kabirwala, District Khanewal), came under trial before learned Additional Sessions Judge, Kabirwala and after trial vide judgment dated 26.10.2011, the accused namely Zafar son of Muhammad Bukhsh, Nazar Hussain son of Kabir, Shabbir son of Walidad, Muhammad Aslam son of Bahadar, Nazar son of Bahadar, Mazhar son of Ghulam Muhammad, Ijaz son of Amir were acquitted of the charges, whereas, accused Rabnawaz. Zafar and Mazhar (sons of Fazil) in addition to the other sentences, were also sentenced to death. Umar Hayat and Muhammad Akram (accused) were sentenced to imprisonment for life, however, they both escaped at the time of pronouncement of the judgment by the learned trial Court. The said matter came up for consideration before this Court in Murder Reference No. 159 of 2011 and Criminal Appeal No. 862/2012 and vide judgment dated 01.06.2016 the convictions/sentences were set-aside and the case was remanded for rewriting of the judgment. In post remand proceedings, the learned trial Court proceeded to even summon the accused, who though had been acquitted in the earlier trial, which summoning order, however, was set-aside by this Court by allowing Criminal Revision No. 687/2016 and the trial Court was directed to confine itself to the purpose i.e. rewriting of judgment.
3. In compliance with the judgment dated 01.06.2016 the learned trial Court/Additional Sessions Judge, Kabirwala seized of the matter conducted post remand proceedings in the said private complaint and (sic) the judgment dated 30.05.2018, whereby, Umar Hayat son of Bahab was acquitted, however, following convictions and sentences were recorded against Rabnawaz Mazhar and Zafar accused/appellant:-
Rabnawaz son of Sher Muhammad
Convicted under Section 148, PPC and sentenced to rigorous imprisonment for three years;
Convicted under Section 460/149, PPC and sentenced to rigorous imprisonment for ten years with fine of Rs. 50,000/-, in default to further undergo SI for six months;
Convicted under Section 302(b), PPC and sentenced to death for qatle-amd of Muhammad Ramzan (deceased), with a compensation under Section 544-A (I), PPC to the tune of
Rs. 300,000/-, in case of default to further undergo SI for six months;
Convicted under Section 302(b)/149, PPC and sentenced to imprisonment for life for causing murder of Muhammad Afzal (deceased);
Convicted under Section 302(b)/l49, PPC and sentenced to imprisonment for life for causing murder of Mst. Sughran Bibi (deceased);
Convicted under Section 302(b)/149, PPC and sentenced to imprisonment for life for causing murder of Sultan (deceased);
Convicted under Section 324 read with Section 149, PPC for launching murderous assault on Mst. Abida Bibi and sentenced to rigorous imprisoment for ten years with fine of Rs. 20,000/- in default to further undergo six months simple imprisonment; also to pay daman of Rs. 25,000/-, to injured Mst. Abida Bibi under Section 337-F (ii), PPC.
Zafar son of Fazil.
Convicted under Section 148, PPC and sentenced to rigorous imprisonment for three years;
Convicted under Section 460/149, PPC and sentenced to rigorous imprisonment for ten years with fine of Rs. 50,000/-, in default to further undergo SI for six months;
Convicted under Section 302(b), PPC and sentenced to death for qatle-amd of Muhammad Ramzan (deceased), with a compensation under Section 544-A (I), PPC to the tune of
Rs. 300,000/-, in case of default to further undergo SI for six months;
Convicted under Section 302(b)/149, PPC and sentenced to imprisonment for life for causing murder of Muhammad Afzal (deceased);
Convicted under Section 302(b) 149, PPC and sentenced to imprisonment for life for causing murder of Mst. Sughran Bibi (deceased);
Convicted under Section 302(b)/149, PPC and sentenced to imprisonment for life for causing murder of Sultan (deceased):
Convicted under Section 324 read with Section 149, PPC for launching murderous assault on Mst. Abida Bibi and sentenced to rigorous imprisonment for ten years with fine of Rs. 20,000/-in default to further undergo six months simple imprisonment; also to pay daman of Rs. 100,000/-, to injured Mst. Abida Bibi under Section 337-L (ii), PPC.
Mazhar son of Sher Muhammad.
Convicted under Section 148, PPC and sentenced to rigorous imprisonment for three years;
Convicted under Section 460/149, PPC and sentenced to rigorous imprisonment for ten years with fine, of Rs. 50,000/-, in default to further undergo SI for six months;
Convicted under Section 302(b), PPC/149, PPC and sentenced to imprisonment for life for qatle-amd of Muhammad Afzal (deceased);
Convicted under Section 302(b)/149, PPC and sentenced to imprisonment for life for causing murder of Muhammad Ramzan (deceased);
Convicted under Section 302(b)/149, PPC and sentenced to imprisonment for life for causing murder of Mst. Sughran Bibi (deceased);
Convicted under Section 302(b)/149, PPC and sentenced to imprisonment for life for causing murder of Sultan (deceased);
Convicted under Section 324 read with Section 149, PPC for launching murderous assault on Mst. Abida Bibi and sentenced to rigorous imprisonment for ten years with fine of Rs. 20,000/-in default to further undergo six months simple imprisonment; also to pay daman of Rs. 100,000/-, to injured Mst. Abida Bibi under Section 337-L(ii), PPC.
Benefit of Section 382-B Cr.P.C. was extended to all the three convicts and all the sentences were ordered to run concurrently. Murder Reference No. 80 of 2018 has been sent by the learned trial Court under Section 374 Cr.P.C, Criminal Appeal No. 559 of 2018 has been filed by Rabnawaz (convict), Criminal Appeal No. 640 of 2018 has been preferred by Mazhar and Zafar (convicts) challenging their above convictions/ sentences; PSLA No. 69 of 2018 and PSLA No. 78 of 2018 have been instituted by the complainant against the acquittal of Umar Hayat, Zafar son of Muhammad Bakhsh, Nazar Hussain son of Kabir Shabbir son of Walidad, Muhammad Aslam son of Bahadar, Nazar son-of Bahadar, Mazhar son of Ghulam and Ijaz son of Amir, whereas, through Criminal Revision No. 342 of 2018 Muhammad Riaz has sought enhancement in quantum of sentence of Mazhar son of Fazil. All these matters are being decided by means of this single judgment.
4. The case of the prosecution as unfolded through, complaint (Ex.PA) on the intervening night of 27/28.07.2007, Muhammad Nawaz (complainant) along with family members was sleeping in his house, woke up at about 3.00 a.m. on barking of the dog, and saw that accused Rabnawaz son of Sher Muhammad armed with Kalashnikov, Muhammad Aslam son of Bahadar armed with rifle 44 bore. Zafar son of Muhammad Bakhsh armed with rifle 222 bore, Zafar son of Fazil armed with rifle 7 mm, Muhammad Akram son of Bahadar armed with pistol 30-bore, Mazhar son of Fazil armed with pistol 30-bore, .Shabir son of Walidad carrying rifle 7 mm. Mazhar son of Ghulam Muhammad carrying 30-bore pistol, along with ijaz son of Amir, Umar Hayat son of Bahab (identified later) and some unknown accused armed with lethal weapons trespassed into his house. According to the complainant, Rabnawaz (convict) raised lalkakra to teach a lesson for the abduction of his sister Mst. Malka Bibi. Muhammad Afzal son of Ramzan told Rabnawaz that they had not abducted his sister and begged for pardon, however, Rabnawaz asked his companions to finish them. Rabnawaz fired from his Kalashnikov which hit front of chest of Muhammad Afzal, second fire by Rabnnwaz landed under right axilla of Muhammad Afzal; Muhammad Aslam accused made fire with rifle 44 bore which landed on left shoulder of Muhammad Afzal (deceased) and second, fire by Aslam hit him under the right axilla.Muhammad Ramzan stepped forward to rescue Muhammad Afzal, whereupon, rifle 222 bore fire shot by Zafar son of Muhammad Bakhsh hit front side of his chest and second fire by same Zafar injured his right cheek. Thereafter, Muhammad Zafar son of Fazil made fire with his rifle hitting right shoulder and second fire landed on the head of Muhammad Ramazan (deceased). Nazar son of Kabir fired with his pistol which hit left axilla and right thigh of Mst. Saghran (deceased) and she fell down. Thereafter, Nazar Muhammad son of Bahadar made rifle fire shot injuring Sultan Mehmood; Muhammad Akram son of Bahadar made pistol fire shot which landed on various parts of body of Mst. Aqsa. Accused Mazhar son of Fazil made fire which landed on Mst. Abida Bibi on various parts of her body. Rifle fire shot by Shabbir accused hit Mst Kousar Bibi. Accused Mazhar son of Ghulam Muhammad made pistol fire shot injuring Dur Muhammad. It was further averred in the complaint that one of the accused Ijaza son of Amir was identified later, who was armed with lethal weapon. According to the complainant he along with Haji Noor Muhammad subsequently also identified Umar Hayat as one of the accused. Upon hue and cry and noise of firing Haji Noor Muhammad, Muhammad Nawaz and other people of the vicinity reached at the spot and witnessed the occurrence and the accused left the scene of occurrence while making firing and they also took rifle 7 mm owned by Sultan (deceased). The other unnamed accused also resorted to firing with their respective weapons, as a result of which Muhammad Nawaz and Mst. Anwar Mai also sustained injuries. The complainant and witnesses took care of injured Muhammad Afzal, Mst. Sughran Bibi. Muhammad Ramzan but they all succumbed to the injuries there at the spot, whereas, injured namely Sultan died in the Nishter Hospital, Multan.
Motive was said to be that 14/15 months prior to the occurrence, Rabnawaz son of Sultan had abducted sister of accused Rabnawaz who had been forcing for the return of his sister and due to said grudge the occurrence took place, wherein, four persons namely Muhammad Afzal, Mst. Sughran, Muhammad Ramzan and Sultan lost their lives, whereas, Dur Muhammad, Mst. Kousar Bibi, Mst. Abida Bibi, Mst. Aqsa Bibi, Muhammad.Nawaz and Mst. Anwar Mai sustained injuries.
5. Since the complainant was dissatisfied with the conduct of investigation of the crime, therefore, he opted to file the above private complaint, wherein, the accused were summoned to face trial, they were charge sheeted, to which they claimed innocence, whereupon, twenty one witnesses were examined as PWs and nine were examined as CWs. The prosecution brought on record certain material in documentary evidence and on close of prosecution case when examined under Section 342 Cr.P.C. Rabnawaz accused/appellant in response to. question “Why the PWs deposed against them” he came up with the following reply:
“It was a blind murder. Case is false and I have been involved due to ulterior motive and malafide of the complainant due to suspicion as I was on inimical terms with the complainant due to abduction of my sister Mst. Malka Bibi.”
The co-accused also denied their involvement in the case in any manner. However, none of the accused opted to appear in the witness box as provided under Section 340(2) Cr.P.C. however, .produced different documents in their defence and ultimately the trial ended in the terms explained in above paragraphs.
6. Heard. Record perused.
7. Though the record is voluminous but after going through the same, the pith and substance of the entire prosecution case can be summarized in the manner that even according to prosecution’s perspective the unfortunate occurrence took place at 3.00 a.m. on the night between 27/28.07.2007 and the FIR was finally chalked out on 28.07.2007 at 5.15 a.m. i.e. almost within two hours of the occurrence. In the FIR, out of eleven nominated accused, ten were assigned specific roles, according to which:
Rabnawaz (accused/appellant) raised lalkakra and made fires shots with Kalashnikov hitting chest and right axilla of Muhammad Afzal (deceased);
Muhammad Aslam (since acquitted) made firing with 44 bore rifle hitting on the left shoulder and right axilla of said Muhammad Afzat;
Zafar son of Muhammad Bakhsh (since acquitted) made firing with 222 rifle hitting the front of chest and right cheek of Muhammad Ramzan (deceased);
Muhammad Zafar son of Fazil (accused/appellant) made firing with 7mm rifle which hit right shoulder and head of Muhammad Ramzan (deceased);
Nazar son of Kabir (since acquitted) inflicted 30 bore pistol on left axilla and right thigh of Mst. Sughran (deceased); ‘
Nazar son of Bahadar caused 7 mm rifle injury to Sultan (deceased);
Muhammad Akram son of Bahadar (since acquitted) injured Mst. Aqsa by fire-arm;
Mazhar son of Fazil (accused/appellant) made firing with 30 bore pistol hitting various parts of body of Mst. Abida;
Shabir (since acquitted) made 7 mm rifle fire which hit diiferent parts of body of Mst. Kousar;
Mazhar son of Ghulam (since acquitted) made 30-bore pistol fire shot which hit Dur Muhammad on various parts of his body.
The other unnamed accused also resorted to firing with their respective weapons, as a result of which Muhammad Nawaz and Mst. Anwar Mai also sustained injuries. After fingering out each accused with specific role, we are mindful of the fact that out of ten accused, seven of such nominated accused who had been assigned specific attributions, including fire-arm injuries to deceased as well as other injured persons, have already been acquitted by the learned trial Court, on the same set of evidence. Though their acquittal has been challenged through PSLAs, but having gone through the entire prosecution evidence and the conclusions drawn by the learned trial Court qua such acquittal, we have noticed that findings of the learned trial Court reflect a genuine (sic) rationale point of view which spurs out from the prosecution evidence itself and there is no cavil to the proposition that if from the evidence a view which is favourable to the accused can possibility be inferred, its benefit must be extended to the accused and such findings cannot be upset unless the same are found to be perverse, arbitrary or fanciful. We are therefore, convinced that extra care and caution would be required to sustain the conviction of the accused/appellants while believing the same set of evidence, which has been discarded qua co-accused.
8. Keeping in mind the above factual and legal aspects, we having noticed that the occurrence in this case took place at 3.00 a.m. (mid night), when a large number of assailants launched attack. The complainant and the witnesses, who according to the prosecution case woke up on barking of the dog came up with such minute details of the occurrence, which humanly don’t appear to be plausible enough to be accepted and believed. In a situation as portrayed by the prosecution not less than eleven accused, according to the prosecution, by joining hands with each other, all carrying lethal fire-arm weapons, launched murderous assault and in such a melee, as a normal human conduct, irrespective of close relationship of the complainant or the witnesses with the deceased or the injured persons, primarily each one must have been running to save himself from the brutality of the accused persons. In such momentary glance, it is more than impossible that the complainant or the other witnesses would have seen, observed, noticed, remembered and then reiterated the role of each accused with such a precision that none omitted to describe the name of each accused, the kind of weapon they were carrying, even the sequence with which they caused injuries to four deceased persons and six injured persons. Adding to it, the witnesses also gave details about the nature, dimension, locale as well seat of injuries caused to the deceased as-well as injured persons, by individual accused persons, but in the facts and circumstances of the case, such minute explanation could only be expected from tutored witnesses otherwise, as discussed above, such photogenic details can be expected from robotic display but not from a common human being. This situation when gauged along with the site-plan (Ex.PKK), it spurs out that though the prosecution took care and showed the source of light i.e. bulb at the place of occurrence, but during investigation no such bulb was taken into possession by the Investigating Officer during spot inspection to prove that any source of light was available at the spot with the help of which the above said witnesses could- have identified the assailants from the distance where they were standing at the relevant time, therefore, an adverse inference can be drawn that darkness had prevailed at the time of occurrence and if for the time being it is presumed that somebody had witnessed the tragedy, even then it was naturally impossible for him to identify the actual culprits Reliance is placed upon Muhammad Afzal alias Abdullah and others v. The State and another (PLD 2009 SC 436) and Arshad Khan v. The State (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:
“….... The occurrence in this case has taken place before Fajar prayers at about 05:00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such bulb had been secured by the investigation officer ....
9. So for as the motive part is concerned, as shall be seen from the above narration of facts, according to the prosecution it was the abduction of Mst. Malka Bibi (sister of Rabnawaz accused/appellant) by Rabnawaz son of Sultan, which ignited the unfortunate occurrence, at the same time it is worth noticing that the said incident of abduction had taken place 15/16 months prior to the present occurrence and the prosecution witnesses stuck of their such stance, but the prosecution did not attempt to produce said girl Mst. Malka in the witness box to establish such element, nor any other incident of hostility or exchange of hot words were disclosed by the prosecution, prior to the present occurrence. Even otherwise, if the accused party was carrying grudge for the last 15/16 months, instead of waylaying such large number of persons from the complainant side, the foremost target of the accused would have been Rabnawaz son of Sultan, who could be said to be mastermind of incident of abduction of Mst. Malka, but said Rabnawaz (sic) unhurt. Though, during his statement under Section 342 Cr.P.C. accused Rabnawaz admitted inimical terms towards the complainant due to abduction of his sister, but we are convinced that the prosecution has not been able to satisfactorily establish the motive part of the occurrence.
10. So for as medical evidence is concerned, as shall be seen from the above narration of facts the occurrence took place at about 3.00 a.m. on the intervening night of 27/28.07.2007 Dr. Noor Muhammad Saghu (PW-6) conducted the post-mortem examination of Sultan Mehmood (deceased) at 1.30 a.m. on 19.08.2007 i.e. about twenty two days after the occurrence, but we have not found anything from the record that till the period Sultan Mehmood remained alive any attempt was made by any of the Investigating Officer to know about his physical condition so as to make a statement, otherwise, his no such statement has been found on the record. Apart from the above, post-mortem examination of Muhammad Ramzan (deceased) was conducted on 28.07.2007 at 1.00 p.m. i.e. ten hours after the occurrence; post-mortem of Muhammad Afzal (deceased) was conducted on the same day at 12.30 p.m. i.e. more than nine and a half hours after the occurrence, post-mortem examination of Mst. Sughran (deceased) was conducted by Dr. Azhar Saeed (PW-16) on 28.07.2007 but surprisingly neither the time of arrival of dead body in the hospital has been mentioned nor even the time of post-mortem has been given in her post-mortem report. Further medical examination of Dur Muhammad injured was conducted on 28.07.2007 at 2.00 p.m.; same is the time of medical examination of Abida Bibi injured, Mst. Aqsa Bibi injured and Sultan (when he was in injured condition), though all these injured were medically examined by one and the same doctor. Such delay in conduct of post-mortem and also the medical examination of the injured persons does not reflect good on the prosecution case. Had the witnesses been present at the place of occurrence and had also seen the incident then such inordinate delay in post-mortem examination and medical examination of the injured would not have occurred, as otherwise, no explanation whatsoever has come on the record to cover up such delay. We are therefore, convinced that apart from above discussed other factors, the medical evidence also goes on to cast serious doubts in the prosecution case. Reliance in this respect may be made to the cases “Usman alias Kaloo vs. The State’ (2017 SCMR 622), “Irfan Ali vs. The State” (2015 SCMR 840) and “Muhammad Ali vs. The State” (2015 SCMR 137).
11. As regards recoveries, we have noticed that although Kalashnikov was shown to have been recovered on the lead of Rabnawaz accused/appellant, which purportedly was used by him in causing injuries to Muhammad Afzal (deceased), and similarly a pistol was shown recovered from accused/appellant Mazhar, but it is matter of record that Kalashnikov recovered from Rabnawaz (accused/ appellant) was not sent to PFSA along with the empties recovered from the spot and though the pistol recovered from Mazhar was sent to PFSA but the same could not be matched with the empties collected from the spot. Whereas, Rifie 7-mm which has been labelled with Zafar (accused/appellant) could not be used against him for the reason that it was not recovered on his lead, rather it was produced before the police by his son Khadim Hussain. In this view of the matter, the recoveries remain inconsequential.
12. Adding to the above, as discussed in the preceding paragraphs, in addition to the present accused/appellants, eight other accused were nominated in the FIR with specific attributions, but all of them including Zafar (accused/appellant) were found. innocent during investigation and this was the reason that complainant had to file the private complaint. We are concisions the opinion of the police may not be binding on the Court, but considering the facts and circumstances of the case, such observation if otherwise, is finding support from the material on record, it can be given some weightage in overall broader perspective of the case.
13. We are mindful of the fact that in this case three human lives have been slain, with no apparent cause so far, yet indicators cannot fix the liability until the evidence conforming the standard required in law of evidence. Qamm-e-Shahadat Order, 1984 is an exhaustive statute; no hypothesis, how strong it may be, can be given space while deflecting the provisions of said law. The fact that the offence is heinous, therefore, standard of evidence should have been relaxed, is in no case warranted by law. Honourable Supreme Court in the case “Navid Asghar and 2 others versus The State” (PLD 2021 Supreme Court 600) held as under:
“No matter haw heinous the crime, the constitutional guarantee of fair trial under Article 10A cannot be taken away from the accused. It is, therefore duty of the Court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of the allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must he scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow.”
Keeping the above aspect in view, in the same judgment the Hon’ble Supreme Court has settled the requirements for relying upon the circumstantial evidence, the relevant extract is reproduced here under:
“The process of inference and deduction involved in such cases 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, an 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 he facts and circumstances from which the inference of the guilt. of the accused person is to be drawn.”
In the case “Fayyaz Ahmad versus The State” (2017 SCMR 2026), almost similar principles were counted with reference to circumstantial evidence.
14. For what has been discussed while allowing Criminal Appeal Nos.559 and 640 of 2018, the conviction and sentence recorded against the accused/appellants are set-aside and they are acquitted of the charges against them. Rab Nawaz accused/appellant shall be released forthwith if not required in any case, whereas, Mazhar accused/appellant is on bail, therefore, his bail bonds are cancelled and surety stand discharged from his liability.
15. For the same reasons, we see no merits in PSLA Nos.69 and 78 of 2018 as well as in Criminal Revision No. 342 of 2018 and the same are dismissed.
16. The case property, if any, be disposed of in accordance with law and the record of the learned trial Court be sent back immediately.
MURDER REFERENCE IS ANSWERED IN THE NEGATIVE
Sentence of death is not confirmed.
(A.A.K.) Appeal allowed
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