PLJ 2026 Cr.C. (Note) 30
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., and Sardar Akbar Ali, JJ.
versus
STATE--Respondent
Crl. A. No. 66008-J & M.R. No. 255 of 2022, decided on 26.11.2025.
Criminal Procedure Code, 1898 (V of 1898)--
ایس ایس ۔ 374 اور 544-اے-پاکستان پینل کوڈ ، 1860 (1860 کا ایکس ایل وی) ایس ایس ۔ 302 اور 34-قتل-سزا اور سزا-اپیل - - قتل کا حوالہ-- غیر مرئی واقعہ - - گردشی ثبوت - - آخری بار دیکھا گیا ثبوت ایک کمزور قسم کا ثبوت ہے - - ثبوت وجتاکر-بلا شبہ ، یہ ایک غیر مرئی واقعہ تھا اور اپیل کنندہ کے خلاف کوئی براہ راست ثبوت نہیں تھا - - کسی نے اپیل کنندہ کو نہیں دیکھا تھا - - معاملے میں واقعے میں اپیل کنندہ کی طرف سے ادا کردہ کردار کا ایف آئی آر میں کبھی ذکر نہیں کیا گیا تھا یا کسی ٹھوس یا قابل اعتماد ثبوت کے ذریعے اسکالرڈ ٹرائل کورٹ کے سامنے انکشاف نہیں کیا گیا تھا - - کسی غیر مرئی واقعہ میں گردشی ثبوت ایک اچھی طرح سے بنی ہوئی زنجیر کی طرح ہونا چاہیے اور ایک مکمل زنجیر بنانے کے لیے ہر صورت حال کو ایک دوسرے سے جوڑا جانا چاہیے اور اگر زنجیر کا ایک لنک بھی غائب ہو جائے تو یہ ملزم کو شک کا فائدہ دے کر بری کرنے کا حق دے گا ۔ آخری بار دیکھا گیا ثبوت ایک کمزور قسم کا ثبوت ہے جب تک کہ اس کی تصدیق کسی اور ثبوت کے ساتھ نہ کی جائے جو اس معاملے میں نمایاں طور پر غائب ہے ۔ - مذکورہ پی ڈبلیو کی طرف سے پیش کردہ وجتاکر کا ثبوت بعد میں پیش کیا گیا لگتا ہے کیونکہ ایف آئی آر میں دونوں پی ڈبلیو کے ناموں کا ذکر نہیں کیا گیا تھا-اس لیے ، ہم سمجھتے ہیں کہ استغاثہ کی طرف سے بنائی گئی وجتاکر کی کہانی اپیل کنندہ کی سزا کو برقرار رکھنے کے لیے استغاثہ کے لیے زیادہ مددگار نہیں تھی ۔ - اب تک یہ قانون کی اچھی طرح سے قائم شدہ تجویز ہے کہ اگر ملزم کی گرفتاری کے بعد یا جرائم کے ہتھیار کے ساتھ جرم کو خالی کرنے کے بعد فارنسک سائنس ایجنسی کو بھیجا گیا تو مذکورہ لیبارٹری کی مثبت رپورٹ نے اس کی ثبوت کی قدر کھو دی-اب تک یہ قانون کا ایک اچھی طرح سے قائم اصول ہے کہ یہ استغاثہ ہے جسے ملزم کے خلاف اپنے پیروں پر کھڑے ہو کر اپنا مقدمہ ثابت کرنا تھا اور وہ دفاع کے معاملے کی کمزوریوں سے کوئی فائدہ نہیں اٹھا سکتا تھا-اپیل کی اجازت ہے ۔
----Ss. 374 & 544-A--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 302 & 34--Murder--Conviction & sentence--Appeal--Murder reference--Unseen incident--Circumstantial evidence--Last seen evidence is a weak type of evidence--Evidence wajtakar--Undisputedly, it was an unseen incident and there was no direct evidence against appellant--No one had seen appellant--Role played by appellant in Incident in issue had never been mentioned in FIR or disclosed before learned trial Court through any solid or convincing evidence--Circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of chain is missing this would entitle accused to be acquitted by giving him benefit of doubt--Last seen evidence is a weak type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case--Evidence-of wajtakar furnished by above said PWs seems to be an afterthought because names of both PWs were not mentioned in FIR--Therefore, we hold that story of wajtakar cooked up by prosecution was not much helpful for prosecution for maintaining conviction of appellant on a capital charge--It is, by now, well established proposition of law that if crime empty was sent Forensic Science Agency after arrest of accused or together with crime weapon, positive report of said Laboratory lost its evidentiary value--It is, by now well established principle of law that it is prosecution which had to prove its case against accused by standing on its own legs and it could not take any benefit from weaknesses of case of defence--Appeal allowed.
[Para 4, 5 & 6] A, B, C, D, F & G
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
آرٹس ۔ 38 اور 39-ماورائے عدالت اعتراف-قانون شہادت آرڈر ، 1984 کے آرٹیکل 38 اور 39 کے پیش نظر پولیس کے سامنے اپیل کنندہ کی طرف سے کیا گیا ماورائے عدالت اعتراف ثبوت میں ناقابل قبول ہے-بصورت دیگر ، ماورائے عدالت اعتراف جرم کو ہمیشہ ایک کمزور قسم کا ثبوت سمجھا جاتا تھا اور یہ تفتیش کے دوران کسی بھی وقت حاصل کیا گیا تھا جب استغاثہ کے پاس کوئی براہ راست ثبوت دستیاب نہیں تھا ۔
----Arts. 38 & 39--Extra-judicial confession--Alleged extrajudicial confession made by appellant before police is inadmissible in evidence in view of Articles 38 and 39 of Qanoon-e-Shahadat Order, 1984--Even otherwise, extrajudicial confession was always considered a weak type of evidence and it was procured at any time during investigation when there was no direct evidence available to prosecution. [Para 5] E
Mr. Azeem Hafeez and Ms. Saiqa Javed, Advocates for Appellant.
Ms. Rahat Majeed, Assistant District Public Prosecutor for State.
Mian Shahid Mahmood, Advocate for Complainant.
Date of hearing: 26.11.2025.
Judgment
Shehram Sarwar Ch., J.--Abbas Ali (appellant) along with his co-accused namely Dilawar Butt and Muhammad Ilyas was tried by the learned Addl. Sessions Judge, Ferozewala in case FIR No. 469 dated 11.09.2020, offence under Sections 302 and 34 PPC registered at Police Station City Muridke District Sheikhupura for the murder of Muhammad Shabbir (deceased) brother of complainant. Vide judgment dated 08.09.2022 passed by the learned trial Court, the appellant has been convicted under Section 302(b) PPC and sentenced to death, with a further direction to pay Rs. 5,00,000/-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. Through the same judgment, Dilawar Butt and Muhammad Ilyas, co-accused of the appellant were acquitted of charge by the learned trial Court and no appeal against their acquittal was filed either by the State or complainant as conceded by learned Law Officer as well as learned counsel for the complainant. Assailing the above conviction and sentence the appellant has filed appeal in hand whereas the learned trial Court has sent Murder Reference, No. 255 of 2022 for confirmation or otherwise of appellant’s sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PH/2) registered on the written application (Ex.PH) of Muhammad Munir, complainant (PW.4) is that he along with Muhammad Shabbir, Abid Hussain and Muhammad Riaz was the sitting in the street in front of his house and were talking to each other. Meanwhile, Dilawar Butt along with three unknown accused came there and took Muhammad Shabbir to the cornor of the street. After sometime, on hearing the noise of fire the complainant and PWs rushed towards mosque street and saw that Muhammad Shabbir was lying smeared with blood in front of house of Mushtaq and a fire was hit on his head. The complainant party took him to THQ Hospital Muridke where he succumbed to the injury. Subsequently, the appellant was implicated in this case through supplementary statement/application (Ex.PI) of complainant moved on the same day.
3. We have heard learned counsel for the parties as well as learned Law Officer for the State at a considerable length and have also gone through the record with their able assistance.
4. Undisputedly, it was an unseen incident and there was no direct evidence against the appellant. No one had seen the appellant while killing the deceased namely Muhammad Shabbir abbir. The role played by the appellant in the incident in issue had never been mentioned in the FIR or disclosed before the learned trial court through any solid or convincing evidence. It has also never been disclosed or alleged by the prosecution in the FIR as to under what circumstances the deceased had been done to death and the case of complainant in the FIR and before the learned trial court was that on hearing the noise of fire, he along with PWs rushed towards the place of occurrence and saw that the deceased was lying smeared with blood in front of house of Mushtaq and a fire was hit on his head. The appellant was subsequently implicated in this case through supplementary statement of complainant recorded on the same day.
5. Undeniably, there is no direct evidence against the appellant as far as murder of the deceased is concerned and the case in hand is one of circumstantial evidence. It has been held in a number of cases by the Hon’ble Supreme Court of Pakistan that circumstantial evidence in an unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of the chain is missing this would entitle the accused to be acquitted by giving him the benefit of doubt. Reliance is placed upon “Altaf Hussain vs. Fakhar Hussain and another” (2008 SCMR 1103) “Muhammad Hussain versus The State” (2011 SCMR 1127), “Ibrahim and others versus The State” (2009 SCMR 407), “Sh. Muhammad Amjad versus The State” (PLD 2003 Supreme Court 704) and “Hashim Qasim and another versus The State” (2017 SCMR 986). The case of the prosecution is based on the following pieces of evidence:
Evidence of Last Seen:
The evidence of last seen was furnished before the learned trial Court by Abid Hussain (PW.1) and Muhammad Munir, complainant (PW.4). It was claimed by both the PWs that they along with Muhammad Riaz (given up PW) and the deceased were sitting in front of their house and were talking to each other. Meanwhile, Dilawar Butt along with three unknown accused came there and took the deceased to the comer of the street. After sometime, on hearing the noise of fire, they rushed towards the place of occurrence and saw that the deceased was lying smeared with blood. The story narrated by both the PWs appears to be improbable because they stated in their cross-examination that they knew the appellant for the last 5/7 years and if it was so, then as to why the appellant was not straightaway nominated in the FIR. The conduct displayed by the said PWs was nothing but unusual detracting from the veracity of their statements. Even otherwise last seen evidence is a weak 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) and “Muhammad Abid vs. The State and another” (PLD 2018 Supreme Court 813). Therefore, the statements of Abid Hussain (PW.1) and Muhammad Munir, complainant (PW.4) are of no avail to the prosecution.
Evidence of Wajtakkar:
The evidence of Wajtakkar was produced by Shahid Mehmood (PW.2) and Kashif Ali (PW.3). According to them, on the fateful night they were working in the shoe making factory/karkhana and heard the sound of fire. Upon which they came out of the factory/karkhana and witnessed that the appellant armed with pistol, Dilawar Butt and Ilyas Mehar (since acquitted) were running towards outside. The evidence of wajtakar furnished by the above said PWs seems to be an afterthought because the names of both the PWs are not mentioned in the FIR: They did not report the matter to the police. The said PWs did not bother to inform the complainant about the incident soon after the incident. Moreover, it was not the claim of both these PWs in their statements that the appellant along with his co-accused was in perplexed condition when they saw them while running towards the outside. The evidence of wajtakar furnished by the above said PWs is nothing but a cock and bull story. Therefore, we hold that the story of wajtakar cooked up by the prosecution is not much helpful for the prosecution for maintaining conviction of the appellant on a capital charge.
Extrajudicial Confession:
It was case of prosecution that during investigation the appellant made extrajudicial confession regarding commission of crime before Muhammad Riaz, SI/I.O. (PW.8). The alleged extrajudicial confession made by the appellant before the police is inadmissible in evidence in view of Articles the 38 and 39 of Qanoon-e-Shahadat Order, 1984. Even otherwise, extrajudicial confession is always considered a weak type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. The legal worth of the extrajudicial confession too is almost equal to naught, keeping in view the natural course of events, human behaviours, conduct and probabilities, in ordinary course. Needless to remark that extrajudicial confession has never been considered sufficient for recording conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from unimpeachable source, therefore, in our view this piece of evidence is entirely insufficient to maintain conviction on such a charge.
Recovery:
The alleged recovery of 30 bore pistol (P.4) at the instance of the appellant and positive report (Ex.PO) of Punjab Forensic Science Agency are inconsequential for the reason that the occurrence took place on 10.09.2020, the appellant was arrested on 15.09.2020, who got recovered above said pistol on 20.09.2020 but the crime empty and the recovered pistol were received in the office of Punjab Forensic Science Agency together on 29.09.2020. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Agency after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of “Jehangir vs. Nazar Farid and another” (2002 SCMR 1986), “Israr Ali vs. The State” (2007 SCMR 525) and “Ali Sher and others vs. The State” (2008 SCMR 707).
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. In this regard, reliance may be placed on the dictum laid down by the Hon’ble Supreme Court of Pakistan in case of case “Muhammad Akram versus The State” (2009 SCMR 230).
7. For the foregoing reasons, Crl. Appeal No. 66008-J of 2022 filed by Abbas Ali (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 08.09.2022 passed by the learned trial court are set aside and he is acquitted of the charges while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
8. Murder Reference No. 255 of 2022 is answered in the NEGATIVE and the sentence of deat h awarded to Abbas Ali (convict) is NOT CONFIRMED.
(J.K.)
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