PLJ 2025 Cr.C. 807
[Lahore High Court Lahore]
Present: Abher Gul Khan, J.
NASIR ZAKIR--Appellant
versus
STATE and another--Respondents
Crl. A. No. 67752 of 2022, decided on 15.9.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
سزا اور جرم ثابت ہونا--اغوا یا رہائی-- یہ بات طے شدہ ہے کہ کسی غیر عدالتی اعتراف پر سزا کی بنیاد رکھنے کے لیے استغاثہ کو نہ صرف یہ ثابت کرنا ہوگا کہ ایسا اعتراف درحقیقت کیا گیا تھا، بلکہ یہ بھی کہ یہ رضاکارانہ تھا اور اس میں سچائی کا عنصر موجود ہے۔
----S. 364-A--Conviction and sentence--Kidnapping or abduction-- It is well-settled that in order to build a conviction upon extrajudicial confession, prosecution must establish not only that such a confession was actually made, but also that it was voluntary and carries ring of truth. [P. 810] A
2004 SCJ 33.
Pakistan Penal Code, 1860 (XLV of 1860)--
اغوا اور جبری گمشدگی--سزا اور فیصلہ--اقرارِ جرم جو عدالت سے باہر کیا گیا ہو-- یہ قانون کا ایک طے شدہ اصول ہے کہ غیر عدالتی اعتراف بذات خود ایک کمزور شہادت ہے، اور خاص طور پر ایسے معاملات میں جن میں سزائے موت شامل ہو، یہ اکیلے کسی سزا کی بنیاد بنانے کے لیے ناکافی ہے۔
----S. 364-A--Abduction and kidnapping--Conviction and sentence--Extra-judicial confession-- It is a settled principle of law that extrajudicial confession is inherently weak evidence and, especially in cases involving a capital sentence, it is insufficient on its own to form basis of a conviction. [P. 812] B
2015 SCMR 155; PLJ 2010 SC 513; 2009 SD 40; NLR 1996 Criminal 14 & 2015 SCMR 1555.
Pakistan Penal Code, 1860 (XLV of 1860)--
اغوا اور جبری گمشدگی--شناخت--ثبوتی اہمیت--یہ طے شدہ اصول ہے کہ شناختی میمو کی کوئی ثبوتی اہمیت نہیں ہے، کیونکہ یہ قانونِ شہادت آرڈر، 1984 کے آرٹیکل 39 اور 40 کی دفعات سے متصادم ہے۔
----S. 364-A--Qanun-e-Shahadat Order, 1984 (10 of 1984), Arts. 39 & 40--Kidnapping and abduction--Identification--Evidentiary value--It is well-settled that evidence of a memo. of identification holds no evidentiary value, as it is inconsistent with provisions of Articles 39 and 40 of Qanun-e-Shahadat Order, 1984. [P. 812] C
PLJ 2018 Cr.C. (Lahore) 231.
Pakistan Penal Code, 1860 (XLV of 1860)--
اغوا اور رہائی--سزا اور جرم ثابت ہونا--شک کا فائدہ--یہ فوجداری قانون کا ایک مسلمہ اصول ہے کہ ایک ملزم پیش کی گئی شہادت سے پیدا ہونے والے ہر مناسب شک کا فائدہ اٹھانے کا حقدار ہے--اپیل کنندہ کو دی جانے والی سزا اور جرم ثابت ہونا بلا جواز ہے--نتیجتاً، عدالت فوری فوجداری اپیل کو قبول کرتی ہے۔
----S. 364-A--Kidnapping and abduction--Conviction and sentence--Benefit of doubt--It is a well-established principle of criminal jurisprudence that an accused is entitled to benefit of every reasonable doubt arising from evidence presented--Conviction and sentence awarded to appellant are unjustified--Consequently, Court accept instant criminal appeal. [P. 813] D
Mr. Abdul Karim Sheikh, Advocate for Appellant.
Ms Asiya Yasin, Deputy Prosecutor General for State.
Hafiz Hamad, Advocate for Complainant.
Date of hearing: 15.9.2025.
Judgment
This appeal, filed under Section 410, Cr.P.C., challenges the legality of the judgment dated 30.09.2022, whereby the learned Additional Sessions Judge, Sheikhupura, upon conclusion of the trial in case FIR No. 417/2020 dated 08.06.2020, registered under Sections 302 & 363, PPC, at Police Station City A-Division, Sheikhupura convicted and sentenced the appellant, Nasir Zakir, as follows:
Under Section 364-A, PPC to suffer imprisonment for life. He was also directed to pay compensation of Rs. 5,00,000/-in terms of Section 544-A, Cr.P.C. to the legal heirs of the deceased, Muhammad Hussain which was ordered to be recovered as arrears of land revenue and in default whereof to further undergo simple imprisonment for 06-months. Benefit of Section 382-B, Cr.P.C., however, was extended to the appellant.
2. Initially, on the basis of a written application (Exh.PG) submitted by the complainant, Yasir Hussain (PW.6), a criminal case was registered as FIR No. 417/2020 (Exh.PF) under Section 363, PPC at Police Station City A-Division, Sheikhupura on 08.06.2020. As per the contents of the FIR (Exh.PF), the complainant stated that on 07.06.2020 at around 3:00 p.m., his six-year-old son, Muhammad Hussain, went to a nearby shop to purchase some edibles but did not return home. Subsequent to the registration of the FIR, the investigation was initially assigned to Irshad Ahmad ASI (PW.8), who on 09.06.2020 viewed CCTV footage from cameras installed outside Safa Marwar Travel Agency. The footage revealed that on 07.06.2020 at about 5:15 p.m., the appellant, Nasir Zakir, was seen riding a motorcycle with his nephew, Muhammad Hussain, heading towards the bypass, and was later seen returning alone at about 6:15 p.m. The footage was copied in a USB device (P.4) and taken into custody vide memo. Exh.PK. On the same day, the complainant Yasir Hussain (PW.6) got recorded a supplementary statement, nominating the appellant as the accused. Subsequently, Irshad Ahmad ASI (PW.8) arrested the appellant on 09.06.2020. During interrogation, the appellant confessed that a dispute had arisen between him and his brother, Yasir Hussain, regarding their shares in some shops, and out of that grudge, he took his minor nephew, Muhammad Hussain, to the Bhikhi Canal, murdered him, and threw his body into the canal. Based on the said confession, the offence under Section 302, PPC was added to the FIR. Later, the investigation was handed over to Ahmed Anees SI (PW.10), who, upon receiving information about the recovery of a boy’s dead body, proceeded to Police Station Sarai Alamgir, where he found the body of Muhammad Hussain (deceased). He recorded the statement of Ijaz Farhan SI, Incharge Homicide, Sarai Alamgir, who had recovered the body from the riverbank. Both officers then visited the site of recovery and prepared a rough site plan (Exh.PL). During physical remand on 11.06.2020, the appellant Nasir Zakir reiterated his confession, stating that due to a property dispute with his brother, he took the child to the Q.B. Link Canal and murdered him by throwing him into the water. On the appellant’s pointation, a memo. (Exh.PP) was prepared. On 14.06.2020, the appellant also disclosed the location of the motorcycle used in the commission of the offence, which was recovered and taken into possession through memo. Exh.PR. After recording the statements of the relevant witnesses and completing all legal formalities, the Investigating Officer submitted report under Section 173, Cr.P.C. through the concerned SHO. During the trial, the prosecution produced a total of eleven witnesses to prove its case against the appellant. Once the prosecution concluded its evidence, the appellant Nasir Zakir was examined under Section 342, Cr.P.C., during which he denied the allegations, pleaded innocence, and claimed false implication. He neither opted to record a statement under Section 340(2), Cr.P.C. nor produced any evidence in his defence. Upon conclusion of the trial, the learned trial Court convicted and sentenced the appellant as mentioned earlier, hence this criminal appeal.
3. Arguments heard. Record perused.
4. A perusal of the record reveals that the prosecution’s entire case hinges primarily on the CCTV footage (P.4), which was secured on a USB device (Exh.PK). As per the prosecution’s version, the said footage allegedly shows the appellant, Nasir Zakir, on 07.06.2020 at about 5:15 p.m., while riding a motorcycle with the minor child, Muhammad Hussain, heading towards the bypass, and later returning alone. However, it is noteworthy that although the Investigating Officers, namely, Irshad Ahmad ASI (PW.8) and Ahmed Anees SI (PW.10) claimed during their testimonies before the trial Court that the appellant was clearly seen in the CCTV footage along with the minor child, the footage was never sent to any forensic science agency to verify its authenticity or to rule out the possibility of tampering. Additionally, the footage was never played or exhibited during the trial proceedings. In such circumstances, it would be unsafe to place reliance solely on the CCTV evidence to uphold the appellant’s conviction, particularly in a case involving a capital charge. Furthermore, the complainant Yasir Hussain (PW.6), who is also the real brother of the appellant, stated during his examination-in-chief that after the disappearance of his son Muhammad Hussain, he submitted a written complaint (Exh.PG) against unknown persons, upon which the police initiated a search for his child. He further stated that he was never interrogated by the police thereafter. At this point, the learned ADPP declared Yasir Hussain (PW.6) as hostile and cross-examined him, during which he completely deviated from his earlier stance and exonerated the appellant altogether. Furthermore, during cross-examination by the defence, the witness reiterated that the police had arrested the appellant on their own accord and that he had informed the investigating authorities during the investigation that the appellant was innocent. Given the significance of this portion of cross-examination of Yasir Hussain (PW.6) for the fair adjudication of the matter, the relevant excerpt is reproduced below for ease of reference:
“It is correct that police at their own on the basis of suspicion arrested my brother and involved him in this case. It is correct that police during the physical remand of my brother in this case physically tortured him and in result of which his leg was broken. It is correct that I stated before the police that my brother Nasir Zakir was innocent. It is correct that police only to save their skin from the illegal act of breaking leg of my brother had deliberately and wrongly involved my brother Nasir Zakir as accused in this case. It is correct that I am satisfied about innocence of my brother in this case therefore I have no objection if this Court acquits him from the charges.”
5. Another aspect of the prosecution’s case against the appellant is the alleged extrajudicial confession made by him during interrogation before the Investigating Officers, namely Irshad Ahmad ASI (PW.8) and Ahmed Anees SI (PW.10), wherein he purportedly admitted to taking his nephew, Muhammad Hussain, to the canal, murdering him, and disposing of the body by throwing it into the water. In this regard, although both prosecution witnesses appeared before the trial Court to support this claim, it is noteworthy that neither of them specified the mode or manner in which the appellant allegedly committed the murder. It is well-settled that in order to build a conviction upon extrajudicial confession, the prosecution must establish not only that such a confession was actually made, but also that it was voluntary and carries the ring of truth. While holding so, I am enlightened from the observation of the Supreme Court of Pakistan expressed in case reported as Sh. Muhammad Amjad v. The State (2004 SCJ 33) which for reference sake is as under:
“Articles 37,38 and 39 of Qanun-e-Shahadat Order, 1984 corresponding to Sections 24,25 and 26 of the Evidence Act are relevant to determine the criteria as to which statement could be treated confession. In criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking within the scope of either term “Voluntary” and “True”. If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of them has its own significance. A confession, which is voluntary, is admissible in evidence even though it may be incorrect in its contents. As against above, a confession, which is not voluntary, is not admissible though it may be true, whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case.”
With regard to the voluntary nature of the extrajudicial confession allegedly made by the appellant, I find no compelling reason to elaborate further, as it primarily concerns the appellant’s mental state. However, the veracity of such a confession is a crucial factor that must be corroborated by surrounding circumstances. According to the details of the extrajudicial confession as narrated by Irshad Ahmad ASI (PW.8) and Ahmed Anees SI (PW.10), the appellant confessed to murdering the child and disposing of his body in the canal. This confession was purportedly made before the police officers in the presence of Asim Hussain (PW.7) and Qasim Butt (given up PW). A careful examination of the statement of Asim Hussain (PW.7) reveals that, during his examination-in-chief, he stated that while the police officials interrogated the accused, he and Qasim Butt did not hear the conversation. Moreover, neither Asim Hussain nor Qasim Butt could identify the dead body by facial features due to its putrefied state and they only recognized the deceased as the son of the complainant by his clothing. Subsequently, Asim Hussain (PW.7) was declared hostile by the learned ADPP and was cross-examined, during which he deposed entirely against the prosecution’s case. According to the prosecution’s own version, the victim, Muhammad Hussain, went missing on 07.06.2020 at about 3:00 p.m. and was allegedly seen in the company of the appellant, Nasir Zakir, on the same day at about 5:15 p.m., riding a motorcycle towards the bypass and later returning alone at around 6:15 p.m. From the facts as narrated, it appears that the child was murdered between 5:15 p.m. and 6:15 p.m. However, as noted, the autopsy was performed approximately 45 hours after the child’s disappearance, on 09.06.2020 at about 1:00 p.m. Thus, the time suggested by the medical officer between injury and death about 24 to 48 hours does not align with the prosecution’s version of events. Furthermore, the stomach contents of the deceased child were sent to the PFSA, which submitted its report (Exh.PS). The analysis revealed the presence of substances including morphine, codeine, papaverine, diazepam, nordiazepam, pheniramine, and laudanosine. This report, too, does not substantiate the prosecution’s case. In light of these discrepancies and contradictions, the evidence of the extrajudicial confession loses its probative value and cannot be relied upon. It is a settled principle of law that extrajudicial confession is inherently weak evidence and, especially in cases involving a capital sentence, it is insufficient on its own to form the basis of a conviction. If any reference in this regard is needed, the same can be made to the cases reported as Imran alias Dully and another v. The State and others (2015 SCMR 155), Muhammad Aslam v. Sabir Hussain and others (PLJ 2010 SC 513), Muhammad Shafique alias Chuma v. The State (2009 SD 40), Sarfraz Khan v. The State, etc. (NLR 1996 Criminal 114) and Imran alias Dully and another v. The State and others (2015 SCMR 155).
6. It has also been observed that during interrogation, the appellant led Ahmed Anees SI (PW.10) to the place of the incident on 11.06.2020, for which a memo. of identification/Nishandahi (Exh.PP) was prepared. However, it is well-settled that the evidence of a memo. of identification holds no evidentiary value, as it is inconsistent with the provisions of Articles 39 and 40 of the Qanun-e-Shahadat Order, 1984. In this context reference can be made to the case reported as Rani Bibi v. State, etc. [PLJ 2018 Cr.C. (Lahore) 231), the relevant portion of which is reproduced hereunder:
“A wade through the above provisions reveals the intent of the legislatures, which can be gathered to the effect that a statement of an accused made in the custody of the police, is inadmissible under Article 39. It further evinces that Article 40 is an exception to what is contemplated in the earlier Article. According to Article 40, a statement of an accused made in the police custody, can be brought on record only if it leads to the discovery of a fact, perceivable through senses. In order to attract the provision of Article 40, the prosecution is obliged to prove that the information given by the accused led to the recovery of a fact, which was not previously known to anybody. A simple statement of an accused regarding the facts which are already in the knowledge of police or any person, does not fall within the purview of Article 40 and instead will fall within the ambit of Article 39 of the Qanun-e-Shahadat Order, 1984.
From above, it can safely be gathered that the alleged statement and disclosure of Rani Bibi (appellant) was an inadmissible piece of evidence and should not have been brought on record by the learned trial Court.”
7. The circumstances discussed above clearly demonstrate that the prosecution’s circumstantial evidence has miserably failed to establish a connection between the appellant and the commission of the offence. A straightforward review of the prosecution’s evidence, in light of the highlighted shortcomings and discrepancies, gives rise to significant doubts regarding the appellant’s guilt. It is a well-established principle of criminal jurisprudence that an accused is entitled to the benefit of every reasonable doubt arising from the evidence presented. In view of the foregoing, I am of the considered view that the conviction and sentence awarded to the appellant are unjustified. Consequently, I hereby accept the instant criminal appeal filed by Nasir Zakir (appellant), set aside his conviction and sentence, and acquit him of the charges. The appellant shall be released forthwith, unless he is required to be detained in connection with any other criminal matter.
(A.A.K.) Appeal accepted
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