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Petitioner: Taimoor alias Qazi Murtaza Khan VS Respondent: The State
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raza Ali Khan, Muhammad Younas Tahir Title: Taimoor alias Qazi Murtaza Khan vs The State Case No.:Criminal Appeal No. 32 of 2020, Criminal Appeal No. 35 of 2020, Criminal
JUDGMENT
Reported As: 2022 SC AJK 36, 2022 PSC (Crl.) 888 Result: Appeal Dismissed Judgment JUDGMENT Raza Ali Khan, J. The titled appeals, have been directed against the common judgment of the Shariat Appellate Bench of the High Court, (hereinafter to be referred as High Court), dated 30.04.2020, passed in Criminal Appeals No. 72, 73, 74 & 35 of 2017. A. BRIEF FACTS 2. The precise facts forming the background of all the captioned appeals are that Muhammad Habib, complainant, lodged a written report at Police Station, Pallandri on 26.03.2009, wherein, it was stated that he is a resident of Solitraan; his son namely Shoaib, aged 20/21 years, had been working as a Labourer with Taimoor Qazi, convict appellant, herein, at his sawmill for the last 8/9 days. He used to stay at the sawmill at night on. On 26.03.2009, at about 9:15 a.m., his naked dead body was found lying in a stream "Pani-Basuta" near Girls High School, Chechan Bazar. The marks of violence and injuries on his head, face and other parts of the body were found. It was alleged that on the previous night, the accused Taimoor alias Qazi, Muhammad Rahim s/o Muhammad Murtaza, Ameen s/o Kareem, Imran s/o Mehrban, Nisar s/o Mohammad Ayyub and Mistri Ramzan s/o Ghulam Fareed at sawmill often used to consume alcohol and they had suspicion that the deceased Shoaib had been disclosing their secret to others, on account of which, the accused murdered Shoaib and threw his dead body in the stream. 3. On this report, an F.I.R. No. 59/2009, in offences under sections 302 and 34, Azad Penal Code (APC), was registered at Police Station, Pallandri and investigation was started. During the course of investigation the offences under section 377, APC and section 13 of the Arms Ordinance, 1965, were also added. Accused, Muhammad Ramzan and Rahim were exonerated under section 169, Cr.PC.
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The motive behind the occurrence as stated, was that the appellants used to drink (alcohol) and had suspicion that deceased Shoaib Akhtar was disclosing their secret to others. 4. After formal investigation, the challan was presented in the District Criminal Court Pallandri, on 20.05.2009. The statements of the accused-appellants under section 242, Cr.PC, were recorded on 30.06.2009, who denied the guilt and claimed the trial. Ultimately, the prosecution was ordered to produce evidence. The prosecution produced as many as 19 out of 20 witnesses listed in the calendar of witnesses. 5. After recording of the prosecution evidence, the accused were examined again under section 342 Cr.PC, who again pleaded not guilty and claimed innocence and got their statements recorded on oath as provided under section 340(2), Cr.PC. At the conclusion of the trial, the trial Court vide judgment dated 31.08.2012, acquitted the accused Nisar of the charge, whereas the other accused persons were convicted and sentenced as under: - i. Taimoor alias Qazi was awarded death sentence as 'Tazir' in the offences under section 302(b), APC and three years' imprisonment along-with fine of Rs. 10,000/- in the offences under section 13 of the Arms Ordinance, 1965 and in default thereof, he was ordered to undergo further imprisonment of 3 months. Rs. 500,000/- (Five hundred thousand) as compensation under section 544-A, Cr.PC was ordered to be paid to the legal heirs of the deceased and in default he was ordered to undergo an imprisonment for six months. ii. Mohammad Ameen and Imran were awarded 10 years' imprisonment each in the offences under section 302 and 34, APC. 6. Against the convictions, the convict appellants, filed three separate appeals before the High Court while the trial Court sent a Reference seeking confirmation of death penalty awarded to Taimoor, convict-appellant. The learned High Court after necessary proceedings decided the appeals and the reference in the following manner:- "Therefore, the conviction of appellants Mohammad Ameen and Imran is maintained, however, to meet the ends of justice imprisonment awarded to them by the trial Court is altered in to the sentence already undergone. They shall pay compensation as ordered by the trial Court. The appeals stand dismissed with the aforesaid modification of sentences awarded to Imran and Mohammad Ameen appellants while the sentence of death and compensation under the provisions of section 544-A, Cr.PC, Rs. 500,000/- (five lac), awarded to Taimoor appellant is maintained and the reference is answered in affirmative." B. APPELLANT'S ARGUMENTS 7. Barrister Hamayoun Nawaz Khan, the learned Advocate appearing for the convict appellant, Taimoor alias Qazi, after narration of the necessary facts submitted that the judgments of the learned High Court as well as the trial Court are not sustainable on the ground that the case against the convict-appellant is of no evidence and he was entitled for an acquittal under law. He further submitted that the impugned judgments are the result of mis-reading and non-reading of prosecution evidence and the learned Division Bench of the High Court totally failed to consider the legal arguments advanced on behalf of convict/appellant and handed down the impugned judgment, therefore, the same is liable to be set aside by acquitting the convict. He argued that the case of the prosecution is hinged upon the circumstantial evidence with broken chains, hence, the convict deserved for an acquittal under well settled law on the subject. He added that even not a single incriminating evidence admissible under law was produced by the prosecution against the convict-appellant. He further argued that the statement of witness Ramzan, a witness recorded under section 164, Cr.PC, could not be relied upon under law therefore, the conviction recorded and sentence awarded to the convict-appellant by the learned Courts below is not warranted on this sole piece of fabricated evidence. He further argued that the Courts below also failed to appreciate the law settled on the alleged last seen evidence which is a very weak type of evidence and can
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never be made a basis for conviction under law. He added that even otherwise, the alleged last seen evidence, in no way connects the convict-appellant with the alleged offence. He contended that the statements of the witnesses are full of contradictions and the witnesses made material improvements in their Court statements as compared to their statements recorded under section 161, Cr.PC, in order to support the prosecution case, therefore, awarding of death sentence to the convict-appellant by relying on the statements of these witnesses can never be termed as appropriate in the eye of law. He further contended that the learned Courts below have also failed to consider an important aspect that all the prosecution witnesses are close relatives of the deceased and are inimical and there was no independent and impartial witness in this case, therefore, the conviction of appellant on the basis of such evidence does not meet the ends of justice. He further contended that the convict appellant has also been gravely prejudiced due to illegal examination by the trial Court under section 342 Cr.PC, therefore, the conviction is not sustainable on this point as well. The learned Advocate emphasized on the point that the learned Courts below have failed to consider that no recoveries were made from the convict appellant and the alleged recoveries have been proved fake in the light of the statement of the prosecution witnesses, therefore, the prosecution story has become highly doubtful. He further emphasized that the learned High Court without taking into consideration the material weaknesses in the prosecution evidence travelled in the wrong direction and upheld the conviction which is not sustainable, hence the convict deserves acquittal. The learned Advocate stated that the learned Courts below have not taken into consideration this important aspect of the case that the prosecution has failed to prove its motive pleaded in the FIR which has proved that the incident did not occur in the way as canvassed by the prosecution, therefore, in this scenario the convict appellant was entitled to the benefit of doubt in the light of the judgments of the Superior Courts. He further stated that the learned Court below also failed to consider the illegalities and contradictions in the recovery memos, report of Chemical Examiner, the serologist and autopsy report, hence, the impugned conviction is not sustainable. In support of his submissions, the learned Advocate placed reliance on the following cases. In the case reported as Muhammad Basharat vs. Syed Saqib Shah & others, [PLJ 2014 SC (AJ&K) 92], there were two recovery witnesses who were close relative of the deceased and the Court held that as both the recovery witnesses were closed relatives of the deceased, therefore, possibility cannot be ruled out that they were interested witnesses. In the case reported as Muhamad Tasleem and another vs. The State and another [2014 SCR 893], there was no direct evidence and the case was of circumstantial evidence. It was held by this Court that the law does not de-bar to convict an accused on the basis of circumstantial evidence and even a capital punishment can also be awarded, provided that in a case resting on circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. It was further held that the circumstantial evidence can only form basis for conviction when it is incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of guilt of accused and if no link in the chain found missing, the circumstantial evidence can safely be relied on and conviction can be recorded on the basis of such evidence. In Zaffar Hussain Malik vs. Abdul Salam & others' case [2015 SCR 1090], the case being of circumstantial evidence, this Court held that the pieces of evidence should have the unbroken chain of the events. All the links in the chain should be fully connected and interlinked and if any chain is missing the whole case falls on the ground. Every link in such a case should be proved by cogent evidence, otherwise, no conviction to an accused can be awarded or maintained. In the case reported as Javaid Akhtar vs. Muhammad Zubair & other [2015 SCR 533], it was held that an accused may be convicted on the basis of circumstantial evidence provided that such
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evidence is confidence inspiring and is based upon such pieces which form a chain of unbroken events and every link in the chain is connected with each other so that no link in the chain is missing. One end of the chain should touch the dead body and the other to the neck of the accused and from such evidence no other inference except the guilt of the accused is drawn. In the case reported as Wazir Muhammad vs. The State [2005 SCMR 277], the question of circumstantial evidence and award of conviction, was examined by the Court and it was observed that the fundamental principle of universal application in cases dependent on circumstantial evidence, is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis that of his guilt. In the case reported as Muhammad Pervaiz & others vs. The State & others [2007 SCMR 670], the Supreme Court of Pakistan held that the accused after recording of confessional statement were handed back to police, such type of confession was irrelevant. It was held that the accused remained in police custody before and after recording confession for 24 hours and the Magistrate had taken only one hour to record confession of the accused, such type of confession would not fall in the category of voluntary confession. In the case reported as Muhammad Ali vs. The State [2008 PCr.LJ 87], there was delay of four days in recording the confessional statement, wherein, the Court held that such confessional statement cannot be used as substantive evidence of fact, when there is clear delay of four days in recording such statement under section 164, Cr.PC and accused had in mind that his custody would again be remanded to police. In Mst. Noor Jehan and another vs. The State's case [2006 YLR 2170], it was observed by the Court that the case being of circumstantial evidence, every chain should be linked with each other and if any chain link was missing, then the benefit of same should go to the accused. Shahzad Masih vs. The State [2006 PCr.LJ 1716], was the case of last seen evidence of two prosecution witnesses who were real bothers of the deceased. The Court held in the case that last seen evidence by itself is not a substantive piece of evidence, it can either lend support to some substantial evidence or can be relied with the aid of some other corroborative evidence which was missing in that case. In the case reported as Muhammad Akram and others vs. The State [2002 YLR 853], no direct or ocular evidence of the incident was available, motive alleged in the FIR was not proved, judicial confession made by one accused was not only exculpatory in nature but the same had contradicted the extra-judicial confession made by him. It was ultimately held by this Court that one weak evidence cannot corroborate another weak evidence. In the case reported as Muhammad Yaqoob vs. The State [2006 YLR 3147], the prosecution version was rested on circumstantial evidence and there were unbroken chains of circumstantial evidence, hence, the Court observed that weak evidence cannot corroborate another weak evidence. In the case reported as Muhammad Younas alias Babu vs. The State [NLR 1996 SD 123], it was observed that for proving a case through circumstantial evidence four essentials are required i.e. (1) circumstances from which conclusion is to be drawn should be fully established; (2) all facts should be consistent with hypothesis; (3) circumstances should be of a conclusive nature and circumstances should lead to moral certainty and should actually exclude every hypothesis, but one proposed to be proved. In the case reported as Khuda Bakhsh vs. The State [NLR 2003 SD 690], it was observed by the Court that the requirement of proof in cases based on circumstantial evidence is that every link has to be proved by good and convincing evidence. In that context, the role of prosecution agency collecting evidence against accused is very important and it is to be seen that the same is above-
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board and free from any doubt and suspicion. It was further observed that above all, it is to be established on record that every piece of circumstantial evidence fits in with another piece of such evidence in the chain and corroborates each other. In a case reported as Rashid Hussain vs. The State & another [2018 SCR 260], this Court held that the last seen evidence is the weakest type of evidence and in the cases of circumstantial evidence conviction cannot be recorded on the strength of last seen evidence unless the same is corroborated with some other strong piece of evidence. 8. Raja Shujaat Ali Khan, the learned Advocate appearing for the appellants (Imran and Muhammad Ameen, in appeal No. 35 of 2020), submitted that the learned High Court while delivering the impugned judgment failed to apply its judicial mind, therefore, the same is liable to be set-aside. He submitted that the case of the prosecution rests upon the alleged broken circumstantial evidence but the learned Courts below failed to apply the law in the given circumstances of the case. He added that the appellants deserve acquittal under law on the subject, however, the learned High Court while delivering the impugned judgment miserably failed to meet this aspect of the case in letter and spirit. He further submitted that impugned judgments of both the Courts below are the result of mis-reading and non-reading of evidence as there were material contradictions in the statements of the witnesses which have been overlooked by the Courts below. C. RESPONDENTS' ARGUMENTS 9. Conversely, M/s Asghar Ali Malik and Farooq Hussain Kashmiri, the learned Advocates for the respondents submitted that the convict appellants are duly nominated in the FIR and during the course of investigation, a knife, blood stained shirt (Qameez) and Bunyan were recovered on the pointation of the convict appellant, Taimoor, who had caused injuries to the deceased Shoaib which were also corroborated by the Post-mortem Report as well as by the statement of the Doctor Rashid Yaqoob, a prosecution witness. They further submitted that the prosecution successfully proved the offence against the convict-appellants, therefore, the learned trial Court rightly passed the judgment and the learned High Court after detailed scrutiny of the evidence has affirmed the conviction recorded by the trial Court. They further submitted that the convict-appellants failed to point out that which portion of the record of the case or evidence has been overlooked or misread by both of the Courts below whereas, the learned trial Court rightly awarded the death sentence to the convict appellant while evaluating the evidence and perusing the record of the case in judicial manner and the conviction has rightly been affirmed by the High Court. They argued that the convict appellants also failed to point out that which chain of circumstantial evidence is broken and why the statement of prosecution witness Ramzan is not reliable in the eye of law whereas, in accordance with evidence, deceased Shoaib had been in the company of the convict-appellants during the night when the incident took place/ occurred and on the very next morning, the appellant was seen searching for his lost mobile in the field where the dead body was found lying, later on, and the police also recovered the Nokia Mobile belonged to the convict-appellant as is evident from the site map. They further argued that the convict-appellants also failed to point out that which prosecution witness has made the improvements in his statement recorded under section 161, Cr.PC and what sort of contradiction between the statements of the witnesses is found. Both the Courts below recorded their findings in accordance with the peculiar circumstances of the instant case and every criminal case has its own facts and circumstances. They argued that the testimony of prosecution witnesses cannot be discarded merely on the ground of being related to the victim or complainant, thus, both the Courts below while recording their findings did not commit any irregularity or illegality. The learned counsel in support of their version, placed reliance on the following cases:-
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In the case reported as Muhammad Khushid Khan vs. Muhammad Basharat & another [2007 SCR 1], no independent witnesses were available and only the related witnesses were produced. The Court observed that the relationship per se is no ground for discarding evidence of the witnesses unless and until their enmity with the accused is established. It was further observed that evidence of a related witness cannot be disbelieved or discarded merely on the basis of relationship unless and until it is not proved that the witness was inimical towards the accused. In the case reported as Yasmeen Ashraf & others vs. Abdul Rasheed Garesta & others [2018 SCR 661], it was held by this Court that law does not debar to convict the accused on the basis of circumstantial evidence and even capital punishment can also be awarded, provided that no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. Further held by this Court that minor discrepancies do no affect the case of the prosecution as a whole, however, these may make mitigation to some extent which may be taken into consideration towards the quantum of the sentence. In the case reported as Sardar Khan & others vs. The State [PLJ 1998 SC 1398], this Court observed that an interested witness in a criminal case is one, who has motive to involve accused falsely in the case, therefore, mere friendly relation or relationship of witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness. 10. Kh. Muhammad Maqbool War, the learned Advocate-General appearing for the State submitted that the impugned judgment passed by the learned High Court, dated 30.04.2020, and judgment of the learned District Criminal Court Sudhnoti/Pallandri, are well reasoned, comprehensive and passed in accordance with law and the facts of the case. He submitted that the appellants have failed to point out any legal ground for interference by this Court in the impugned judgment. He further argued that the FIR was promptly lodged, the names of the offenders were duly mentioned therein. Although, the case of prosecution mainly rests upon circumstantial evidence but there are two eye witnesses namely Umer and Tahir who have seen the convict-appellants quarreling with the deceased at the place of occurrence on the night of the occurrence, hence, the Courts below have rightly convicted the accused according to principle of administration of criminal justice. He argued that the convict-appellants, are nominated in the FIR and the complainant had no reason to implicate the convict-appellant in a false case of murder of his only son by leaving the real culprit go away un-condemned. During the investigation, the clothes of deceased and weapon of offence were recovered on the pointation of convict-appellants, and the recovery was duly proved. He added that the postmortem report also supports the prosecution version and it was further corroborated by the recovery of weapons of offence and other incriminating material, therefore, conviction and sentences awarded to the convict-appellants are liable to be maintained. D. COURT'S ARTICULATION 11. We have given our dispassionate thought to the arguments of the learned Advocates representing the parties, the Advocate-General and have gone through the record of the case, evidence produced by the parties and the impugned judgments of the Courts below with utmost diligence. 12. Before heading towards the merits of the case, it is pertinent to mention here that admittedly there is no direct evidence available in the case in hand and the whole case hinges on the circumstantial evidence. E. POINTS TO BE RESOLVED: The following points are the pillars determining the fate of the case; i. Last seen evidence. ii. Recoveries: Recovery of shirt (Qameez) and Bunyan (vest), recovery of weapon of offence i.e knife {{URDU TEXT}} on the pointation of convict-appellant Taimoor, recovery of Cell phone of Convict Taimoor from the place of occurrence, recovery of blood-stained clay from the wheat crop
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field, recovery of naked dead body near the sawmill owned by convict-appellant Taimoor, recovery of sticks from convicts Imran and Ameen. iii. Medical Evidence: Medical Report, the Chemical Examiner Report and statement of Rmazan (pw No. 13) recorded under section 164 Cr.P.C. i. LAST SEEN EVIDENCE 16. The foundation of last seen theory lies on the principle of probability, cause and connection as no fact takes place in isolation. Basically, it means that if an event takes place, then other events also take place which are the probable consequences of a major event or related to it either retrospectively or prospectively. These inferences or presumptions are drawn logically according to how a reasonably prudent man will connect the dots in the particular scenario. This presumption of fact has taken place from law of Evidence under which the Court can presume that certain facts exists if some other facts are proved to be existing in the case of natural events and human conduct. Though the last seen theory relieves the Court of the burden of proving guilt yet it is a weak type of evidence and it needs to be corroborated with other factors. 17. It is not necessary that the person accused is always considered guilty once it is established that he was last seen with the deceased. He is given a fair chance to revert this presumption because it is not necessary that same situation existed as the Court predicted based on logic because every coin has two sides and the Court cannot suddenly jump to a conclusion in such sensitive matters without analyzing every possible situation. A guideline is sought from the case of Indian Supreme Court titled Sadpal Vs State of Haryana, Criminal Appeal No. 1892 of 2017 available on…
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