PLJ 2024 Cr.C. (Note) 197
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Muhammad Waheed Khan, JJ.
ADNAN MASIH--Appellant
versus
STATE and another--Respondents
Crl. A. No. 62579-J & M.R No. 139 of 2020, heard on 5.6.2024.
Circumstantial Evidence--
----It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches dead-body and other neck of accused--But if chain link is missing then its benefit must go to accused. [Para 4] A
1992 SCMR 1047, 1996 SCMR 188 & PLJ 1999 SC 1018.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 364--Qatl-e-amd--Conviction and sentence--Challenge to--Circumstantial evidence--No direct evidence--Both above said PWs did not both inform complainant qua seeing deceased lastly in company of appellant soon after his missing--They were neighbourers of complainant and it is hard to believe that they had not heard news of missing as well as murder of Subhan (deceased) soon after incident--Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case--DNA and Finger Print, Expert reports cannot be considered as conclusive proof and same require corroboration/support from other pieces of evidence which is missing in case in hand--So far as certain recoveries at instance of appellant are concerned, suffice it to observe that recovery is merely a corroborative piece of evidence and relevant only if primary evidence inspires confidence which is not situation in this case--The medical evidence produced by prosecution was not of much avail to prosecution because murder in issue had remained unwitnessed and, thus, medical evidence could not point an accusing finger towards appellant implicated in this case--Evidence furnished by prosecution is shaky in nature and cannot be relied upon for maintaining convictions/sentences of appellant--All pros and cons of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution--Which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant.
[Para 4 & 6] B, C, D & E
PLJ 2008 SC 687, PLD 2018 SC 813 & 2016 SCMR 1605.
Benefit of Doubt--
----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [Para 6] F
2009 SCMR 230.
Ch. Najamul Hassan, Advocate/Defense counsel appointed at State expense for Appellant.
Mr. Hamayun Aslam, Deputy Prosecutor General for State.
Rana Adnan Ahmad, Advocate for Complainant.
Date of hearing: 5.6.2024.
Judgment
Shehram Sarwar Ch. J.--Adnan Masih, appellant was tried by the learned Addl. Sessions Judge-1/Judge MCTC, Daska in case FIR No. 424 dated 14.10.2019, offence under Sections 302, 364, 377 and 201, PPC, registered at Police Station Sadar Daska District Sialkot for the murder of Subhan son of complainant. Vide judgment dated 14.11.2020 passed by the learned trial Court, Adnan Masih, appellant was convicted under Sections 302 (b), PPC and sentenced to death with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. He was also convicted under Section 364, PPC and sentenced to imprisonment for life along with fine of
Rs. 50,000/- and in default whereof to further undergo three months simple imprisonment. He was further convicted under Section 377, PPC and sentenced to imprisonment for life along with fine of
Rs. 50,000/- and in default whereof to further undergo three months simple imprisonment. All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended to the appellant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 139 of 2020 for confirmation or otherwise the sentence of death of appellant as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA) registered on the written application (Ex.PB) of Qamar Sajjad (PW.2) is that on 13.10.2019 he had gone to Bhopalwala in connection with some urgent piece of work. At about 08:30 p.m. his wife informed him that his son Subhan (deceased) was missing since evening and did not return to home upon which he reached home immediately and started searching for his son with the help of his brother Javed Nawaz and maternal uncle of his son namely Majid Ali. While searching him when they reached at a distance of about one acre from his house they found the dead body of his son Subhan in the maize crop at about 11:30 p.m. whose hands were tied behind. There was a cloth loop around his neck and cloth thrust in his mouth as well. The appellant was implicated in this case through supplementary statement (Exh.PC) of the complainant recorded on 14.10.2019 on the information allegedly imparted to him by Zahid Iqbal (PW.3) and Iftikhar Ali (PW.20) who allegedly saw Subhan (deceased) lastly in the company of appellant as well as Nadeem Tahir (PW.4) and Abdul Ghafoor (PW.21) who saw the appellant after the occurrence in a perplexed condition.
3. We have heard arguments of learned counsel for the parties as well as learned Law Officer for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.
4. The prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other neck of the accused. But if chain link is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as “Ch. Barkat Ali vs. Major Karam Elahi Zia and another” (1992 SCMR 1047), “Sarfraz Khan vs. The State” (1996 SCMR 188) and “Asadullah and another vs. State” (PLJ 1999 SC 1018). Admittedly, there was no direct evidence against the appellant. No one had seen the appellant while killing Subhan (deceased) after committing sodomy with him. Furthermore, the role played by the appellant in the incident in issue had not been brought on record through any cogent and convincing evidence. Moreover, the dead-body of Subhan (deceased) was not recovered at the instance of appellant. The evidence of last seen was furnished by Zahid Iqbal (PW.3) and Iftikhar Ali (PW.20). It was their claim that on 13.10.2019 at 6:00 p.m. they were standing near the Haveli of Dr. Mehmood Ahmad and were talking with each other. Meanwhile, Adnan Masih (appellant) while holding finger of Subhan (deceased) passed nearby them and went towards graveyard and at that time Subhan had a cloth around his neck. On 14.10.2019 at about 9:00 am. They heard announcements regarding murder of Subhan, they met the complainant and told him the above said fact. The stance of above said PWs qua seeing the deceased in the company of appellant at 6:00 p.m. has been negated by Aneela Bibi (PW.12) by stating in her examination-in-chief that her son Subhan left the house on 13.10.2019 at 6:15 p.m. It is not understandable as to how both the above said PWs saw the deceased in the company of appellant at 6:00 p.m. when at that time he was present in his house. Moreover, the conduct of both these PWs was unnatural who did not ask the appellant as to why he was taking Subhan (deceased) towards the graveyard in darkness. Moreover, both the above said PWs did not both inform the complainant qua seeing the deceased lastly in the company of the appellant soon after his missing. They were the neighbourers of the complainant and it is hard to believe that they had not heard the news of missing as well as murder of Subhan (deceased) soon after the incident. Even otherwise last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. Reliance is placed on case law titled as “Altaf Hussain vs Fakhar Hussain and another” (PLJ 2008 SC 687). Moreover, the Hon’ble Supreme Court of Pakistan in its judgment titled as “Muhammad Abid vs. The State and another” (PLD 2018 Supreme Court 813) has given an exhaustive view about the theory of last seen which is reproduced as under:
“5. .. The theory of last seen together is one where two persons are ‘seen together’ alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other’s death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. 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.
6. The foundation of the “last seen together” theory is based on principles of probability and cause and connection and requires 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. Proximity of the crime scene. 3. Small time gap between the sighting and crime 4. No possibility of third person interference 5. Motive. 6. Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectively between the accused and the crime.”
The evidence of watakkar was furnished by Nadeem Tahir (PW4) and Abdul Ghafoor (PW.21). It was their claim that on 13.10.2019 at about 8:00 pm. they were standing at Chowk Nathey Wala near Hamam of Rafique, Adnan Masih (appellant) passed in front of them and went towards his house swiftly; at that time he was wearing blue coloured clothes; his shoes and clothes were stained with mud and he was drenched in sweat. Both these PWs have not given any plausible reason for their presence at Chowk Nathey Wala on the night of occurrence. Moreover, they remained silent for the whole night and did not disclose this fact to the complainant. Both these PWs also did not bother to ask the appellant as to from where he was coming in a perplexed condition. Furthermore, the names of said PWs are not mentioned in the FIR. They were introduced by the complainant in this case through his supplementary statement. Even otherwise, evidence of wajtakkar being a weak type of evidence was not believable in absence of independent corroborative piece of evidence which was conspicuously missing in this case. So far as scientific evidence in the form of Forensic DNA and Serology analysis report available on the record is concerned, the same is of no avail to the prosecution because it is mentioned in the said report that the PFSA Crime Scene Investigation Team visited crime scene thrice on 14.10.2019 at 1:10 a.m. 8:20 a.m. and 7:18 p.m. as well as on 16.10.2019 at 8:07 p.m. It is not understandable as to how the Investigating Officer as well as PFSA Crime Scene Investigation team did not collect all the samples in their first visit and inspected the spot on four occasions in order to collect the samples and particularly the fourth visit was made after joining the appellant into investigation by the police. Undisputedly, the Investigating Officer did not follow the procedure mentioned in Rule. 25.33 of Police Rules, 1934 while making the spot inspection. Though under Rule 25.14 of Police Rules, 1934 the Investigating Officer can seek technical assistance from the experts during spot inspection for the purpose of preservation, collection, sampling and packaging of articles, biological stains and securing the finger prints followed by handing over the parcels to the police for its dispatch to PFSA analysis. Investigator is required to stamp such parcels with seal of police station by mentioning the particulars of case as required by Rule 25.33 cited above, its entry into Register No. 19 of police station and then after obtaining docket/permission from the senior police officer of the district ensure safe dispatch and deposit of parcels to PFSA. In no case, an expert can take the samples direct to PFSA for analysis because it is the investigator to decide what sort of analysis he is seeking in that particular case. We have further noted that the DNA and Finger Print, Expert reports cannot be considered as conclusive proof and the same require corroboration/support from other pieces of evidence which is missing in the case in hand. So far as certain recoveries at the instance of appellant are the concerned, suffice it to observe that recovery is merely a corroborative piece of evidence and relevant only if the primary evidence inspires confidence which is not the situation in this case. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605). Therefore, we hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining the convictions/sentences of the appellant.
5. So far as version of the appellant taken by him in his statement recorded under Section 342, Code of Criminal Procedure, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence version which is exculpatory in nature.
6. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution. Which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is placed on case law titled as “Muhammad Akram versus The State” (2009 SCMR 230).
7. For the foregoing reasons, the appeal in hand filed by Adnan Masih, appellant is allowed, convictions and sentences awarded to him vide judgment dated 14.11.2020 passed by the learned trial Court are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Adnan Masih (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case.
8. Murder Reference No. 139 of 2020 is answered in the NEGATIVE and the sentence of death awarded to Adnan Masih (convict) is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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