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Official Citation: 2023 LHC 6692
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-11-30
Parties: Nadeem Shah vs The State
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-11-30, officially reported as 2023 LHC 6692. In this matter between Nadeem Shah and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023LHC6692
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf, Ch. Abdul Aziz Title: Nadeem Shah vs The State Case No.: Criminal Appeal No.642 of 2019, Murder Reference No.55 of 2019 Date of Judgment:2023-11-30 Reported As: 2023 LHC 6692, 2024 YLR 1127, PLJ 2024 Cr.C. 772 Result: Appeal Allowed
JUDGMENT
JUDGMENT Ch. Abdul Aziz, J. Nadeem Shah (appellant) involved in case F.I.R No.32/2019 dated 07.02.2019 registered under Sections 377, 302 & 201 PPC at Police Station Hazro, District Attock, was tried by learned Additional Sessions Judge/Model Criminal Trial Court, Attock and vide judgment dated 11.07.2019 was convicted and sentenced as under:- (i).Under Section 302 (b) PPC to suffer death sentence as ta'zir. (ii). Under Section 377 PPC to suffer imprisonment for life along with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for 6-months. (iii).Under Section 201 PPC to suffer imprisonment for 3-years along with fine of Rs.25,000/- and in default whereof to further undergo simple imprisonment for 03-months. The afore-mentioned sentences were ordered to run concurrently with the benefit of Section 382-B Cr.P.C. Feeling aggrieved, Nadeem Shah (appellant) filed Criminal Appeal No.642 of 2019 against his conviction, whereas the trial court sent reference which was numbered as Murder Reference No.55 of 2019 for the confirmation or otherwise of death sentence so awarded to him. Since both matters are inter se connected, hence are being disposed of through this single judgment. 2. Succinctly stated the case of the prosecution as unveiled by Dilawar (PW.9) in F.I.R (Exh.PH/1) is to the effect that on 04.02.2019 at about 7:30 a.m. his eldest son Sher Ali aged about 12/13 years went towards Bela Darya with herd of his cattle; that till evening Sher Ali did not return home due to which the complainant got worried and started searching him; that on 07.02.2019 Waseem Iqbal and Rajab Ali met the complainant and informed that on 04.02.2019 they had seen his son Sher Ali
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along with Nadeem Shah (appellant) while going towards Chhanga village; that the complainant and others kept on searching Nadeem Shah but found no clue about him; that the complainant also informed nearby Police-Post Incharge, namely Abid Ali ASI (PW.11) who also accompanied him for inquiring from Nadeem Shah (appellant) about Sher Ali; that Nadeem Shah was sitting at a hotel of Abubakar village and Abid Ali ASI asked him regarding the whereabouts of Sher Ali; that in response to this query, Nadeem Shah hesitantly made disclosure that he committed sodomy with Sher Ali and later strangulated him to death; that he further disclosed that the dead body of Sher Ali was disposed of in a pond of village Adalzai; that Nadeem Shah in pursuance of his disclosure got recovered the dead body of Sher Ali from the pond of afore-said village. 3. On 07.02.2019 Anjam Sohail SI (PW.12) after the receipt of information regarding the incident reached the spot where Dilawar (PW.9) made statement (Exh.PH) which was sent to police station through Shafqat Irfan constable for the registration of formal F.I.R. He drafted application for postmortem examination (Exh.PD), inquest report (Exh.PE) and dispatched the dead body to THQ Hospital Hazro through Tahir Khan constable. He took into possession string (P.6) through memo Exh.PK. He also interrogated Nadeem Shah (appellant) and caused his formal arrest. On 10.02.2019 he produced Nadeem Shah before the medical officer and got his potency test conducted. On 11.02.2019 he took Nadeem Shah (appellant) to the office of PFSA for DNA analysis and also deposited the parcels delivered to him by the medical officer. On 14.02.2019 Nadeem Shah (appellant) made disclosure and in pursuance thereof led to the recovery of last worn clothes of Sher Ali which were taken into possession through memo Exh.PN. On 27.02.2019 he deposited the last worn clothes of the deceased in the office of PFSA and after complying legal formalities and recording the statements of relevant witnesses under Section 161 Cr.P.C. got prepared report under Section 173 Cr.P.C. through concerned SHO. 4. Prosecution in order to prove its case against the appellant produced 14-witnesses, out of whom, Dr. Muhammad Zeeshan Madni (PW.3) after examining Nadeem Shah (appellant) conducted potency test of the appellant, Dr.Ali Khan (PW.6) performed autopsy of Sher Ali on 07.02.2019 and prepared postmortem report (Exh.PF) along with pictorial diagrams (Exh.PF/1 & Exh.PF/2), Dilawar (PW.9) is the complainant of the case and narrated the background in which his son went missing, Waseem Iqbal (PW.10) saw Sher Ali (deceased) last time alive in the company of Nadeem Shah (appellant) and Anjam Sohail SI (PW.12) investigated the case. The remaining PWs, more or less, were formal in nature. 5. After the conclusion of prosecution evidence, the learned trial court examined the appellant under Section 342, Cr.P.C. who in response to question "why this case is registered against you and why PWs have deposed against you" made the following reply:- "I do not know the deceased Sher Ali. He is not my co-villager. His village is situated far away from my village. PWs Wasim Iqbal and Rajab Ali are also not my co-villagers and their village is also situated far away from my village. PWs Wasim Iqbal and Rajab Ali are shepherd by profession. They themselves committed sodomy with Sher Ali deceased and after committing murder of Sher Ali, they levelled allegation of sodomy and murder upon me and themselves became as witnesses in this case. I.O of this case, on the asking of complainant and other PWs falsely involved me in this case. Private PWs are related to the complainant party and that's why they deposed in favour of complainant whereas police officials deposed against me just to strengthen the false prosecution case and to show efficiency to their high ups. I am a poor fellow but belong to a noble family and cannot even imagine to commit such like offence. I am innocent. I may kindly be acquitted from the charge. " Appellant neither appeared as witness in his own defence under Section 340(2) Cr.P.C. nor produced any evidence in this regard. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence the instant criminal appeal and murder reference.
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6. It is contended on behalf of appellant that though deceased Sher Ali went missing on 04.02.2019 but for the first time the complainant contacted the police on 07.02.2019 in this regard; that such delay of three days remained unexplained and gives rise to the doubt about the truth of prosecution story; that the evidence of last seen is to be out-rightly discarded as it was furnished after about three days of the incident though both the PWs were living in the same vicinity; that the evidence of recovery of dead body on the disclosure and pointation of the appellant also suffers from multiple legal defects, foremost out of which pertains to the non-preparation of memo of pointation; that according to prosecution case the corpse was recovered from a pond but the medical evidence strongly negated this aspect; that the positive DNA report about the internal anal swa bs lost its sanctity due to failure of prosecution to prove safe custody of the samples and their onward transmission to PFSA and that since the prosecution failed to prove its case against the appellant beyond shadow of any doubt, thus conviction awarded to him is not sustainable. 7. On the other hand, learned law officer assisted by learned counsel for the complainant vociferously argued that though there is some delay in the registration of FIR but it was properly explained during trial; that neither the complainant nor the witnesses of last seen had any enmity with the appellant, thus on this score alone their depositions are to be accepted; that the evidence of last seen was brought on record at the time of registration of FIR; that the guilt of appellant is well established from the recovery of dead body on his pointation and its impeccable detail was furnished by the prosecution witnesses; that the circumstantial evidence of last seen and recovery of dead body is amply supported from the medical evidence and positive DNA report of internal anal swa bs; that strong circumstantial evidence furnished in this case can legitimately be used for upholding the conviction of appellant; that since the appellant not only committed the murder of an innocent young boy aged 13-years but also subjected him to sodomy, hence he deserves no leniency in the quantum of sentence and that since the prosecution successfully proved its case against the appellant, hence the appeal filed by him is liable to be dismissed. 8. Arguments heard. Record perused. 9. It is discernible from record that the case was registered for a transaction in which a 13-year aged shepherd left his house in the earlier hours of 04.02.2019 and though the herd of his goats returned home but he himself went missing thereafter. The complainant Dilawar (PW.9) who was none other than the father of Sher Ali, launched search efforts to trace his missing son but remained unsuccessful. On 07.02.2019 Dilawar (PW.9) came across Waseem Iqbal (PW.10) and Rajab Ali (given up) who imparted information of having seen Sher Ali (deceased) in the company of Nadeem Shah (appellant) on 04.02.2019 at about 4:00 p.m. Such information prompted the complainant Dilawar (PW.9) to obtain the help of Abid Ali ASI, Incharge Police Post Lakori (PW.11) for tracing Nadeem Shah (appellant) to get a clue about his missing son. The complainant Dilawar along with witnesses of last seen and Abid Ali ASI approached Nadeem Shah (appellant) sitting in a hotel who after making disclosure of having assassinated Sher Ali (deceased) led to the recovery of his corpse from a pond. 10. The case of prosecution, so to speak, mainly hinges upon circumstantial evidence, the main components of which are evidence of last seen, recovery of dead body on the disclosure and pointing out of the appellant, the medical evidence and the positive PFSA report according to which the internal anal swa bs of the victim matched with the DNA profile of appellant. 11. The crime of homicide is often committed in public view and on occasions at isolated places. In the latter category of cases, the assassin endeavours by design not to leave behind traces of his involvement. The guilt of a delinquent in such cases of homicide can still be proved through circumstantial evidence, if available. The circumstantial evidence pertains to the facts or events from the scrutiny of which the guilt or innocence of an accused can be extracted. For handing down a guilty verdict in a case of homicide, each and every incriminating circumstance forming
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the chain of circumstantial evidence must be clearly established so as to form an irresistible conclusion about the involvement of accused in the crime. Each component of the circumstantial evidence is required to be tested on reasoning through application of judicious mind so as to ascertain that it is not hit by any legal provision making it inadmissible. Above all, for awarding conviction such incriminating circumstances must so strongly be interwoven with each other as to make an unbroken chain, the one end of which must be touching the corpse and the other proving the guilt of accused. Circumstantial evidence for proving the guilt or innocence of an accused is even acknowledged in Islamic Law as 'Alqarain' which is a plural of 'Alqariinah', which in legal terminology refers to an event and serves as a sign or gives traces of existence or non-existence of a fact in issue. The admissibility of circumstantial evidence can further be traced from the event of Prophet Yusuf and Zulekha which is quoted in Verse Nos.25 to 28 of Surah Yousaf and for reference sake is being referred hereunder:- "Yusuf and the woman raced towards the door one behind the other and she tore his shirt from behind. In the process they met her husband at the door. On seeing him she cried out: 'what punishment does one deserve who shows evil intentions towards your wife? What else than he should be put in prison or tortured with painful torment'. Yusuf said: "It was she that seduced me". At this moment, a witness of her own folk testified saying: "If his shirt is torn from the front, then her tale is true and he is a liar, but if his shirt is torn from the back then she has told a lie and he is speaking the truth". When her husband saw Yusuf's shirt torn at the back, he said: "Surely it is a plot of you woman, certain mighty is your plot." From the recital of Quranic verses mentioned above, it can well be gathered that the allegation pointed towards Prophet Yusuf was declared to be false on the basis of circumstantial evidence. It is generally argued in favour of circumstantial evidence that a witness can tell lie but the circumstances cannot. It is equally correct to mention here that presumption of truth about the circumstantial evidence is nothing more than a notion, thus the court have to be at their toes while evaluating such cases. On occasions, circumstantial evidence is crafted by planting false witnesses to secure conviction against the accused facing trial. 12. On the touchstone of above guidelines, we have evaluated with utmost circumspection the legal worth of circumstantial evidence led in the case, foremost out of which is the evidence of last seen furnished by Waseem Iqbal (PW.10). The evidence of last seen stands for the events in which the deceased is lastly seen in the company of an accused and subsequent thereto he becomes untraceable. For structuring conviction upon the circumstantial evidence, it is incumbent upon the prosecution to prove two of its basic ingredients which are proximity of time and proximity of distance. The proximity of time to prove the evidence of last seen rests on the principle of "de recenti" which lays emphasis that time span between the event of last seen and death must be very short. The short duration between the evidence of last seen and the murder incident in fact eliminates the possibility that the deceased parted the company of accused and joined some other person. As regards the proximity of distance, the evidence is led to bring on record during trial that the victim was assassinated at a short distance from the place where he was lastly seen in the company of assassin. The more is the distance between evidence of last seen and the death of deceased, greater is the possibility about the hypothesis of innocence of the accused. The failure of prosecution to prove the proximity of time and distance is destined to weaken the evidence of last seen. Reliance in this context is placed on case reported as Muhammad Abid Vs. The State and another (PLD 2018 Supreme Court 813), wherein the Supreme Court of Pakistan held as under:- ".......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
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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 connectivity between the accused and the crime." Further reference on the subject can also be made to the cases reported as The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others (2021 SCMR 873), Qaisar Mehmood and another v. The State (2021 SCMR 662) and Sadi Ahmad and another v. The State (2019 SCMR 1220). While evaluating the legal worth of last seen evidence, the courts must not forget that our system of investigation is susceptible to the menace of fabrication of facts, knitting of false evidence and throwing of wider net. Due to the foregoing reason, the evidence of last seen is to be scanned with extra care because such evidence is easy to knit but difficult to prove. Even if proved, the evidence of last seen gives rise to the probability about the involvement of an accused in the assassination of the victim, hence is to be considered along with other components of circumstantial evidence for awarding conviction while looking for strong corroboration. Reference in this regard may be made to the case reported as Fayya z Ahmad v. The State (2017 SCMR 2026) wherein the Supreme Court of Pakistan held as under:- "Beside the above, circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak type of evidence in cases involving capital punishment." 13. In the instant case, Waseem Iqbal (PW.10) appeared during trial with the claim of having seen Sher Ali (deceased) in the company of Nadeem Shah (appellant) on 04.02.2019 at about 4:00 p.m. As is evident from his deposition, at the eventful time Waseem Iqbal (PW.10) was accompanied by Rajab Ali, who was given up as being unnecessary. The deposition of Waseem Iqbal (PW.10) was scrutinized with extreme watchfulness on the benchmark of principles mentioned in para-12 supra and was found to be suffering from various shortcomings. It is noticed that Waseem Iqbal (PW.10) mentioned nothing about the place where he saw Sher Ali (deceased) and Nadeem Shah (appellant) on 04.02.2019. The foregoing omission culminated in failure of prosecution to prove the ingredient of proximity of distance, which was essentially required to authenticate the evidence of last seen. As a necessary consequence, nothing is available on record to give finding in favour of prosecution that the event narrated by Waseem Iqbal (PW.10) comes within the ambit of doctrine of "de recenti". In reference to the proximity of time, it is observed that Waseem Iqbal (PW.10) deposed in his examination-in-chief to have witnessed the deceased and appellant on 04.02.2019 at 4:00 p.m. During cross-examination it deciphered that the time of 4:00 p.m. about the event of last seen was brought on record by Waseem Iqbal (PW.10) through dishonest improvement. In fact, Waseem Iqbal (PW.10) had not mentioned the exact time of the event in his statement under Section 161 Cr.P.C. and the defence took guard of this fact by confronting him with his statement
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(Exh.DA) made during investigation. For reference sake an extract from the cross-examination of Waseem Iqbal (PW.10) is referred hereunder:- "I stated before Investigating Officer that I saw the deceased with the accused at about 4:00 p.m. on 04.02.2019." It is well embedded principle of appraising the evidence in criminal case that the fact brought in evidence through dishonest improvement is to be discarded. The purpose of such approach is to deprive a witness of taking leverage for overcoming lacunas in the case by adjusting his statement accordingly. In reference to our foregoing view, reliance can be placed on the case reported as Muhammad Arif v. The State (2019 SCMR 631) wherein the Supreme Court of Pakistan held as under:- "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge." There is yet another factor which adversely reflects upon the evidence of last seen. Waseem Iqbal (PW.10), the narrator of last seen evidence, admitted during cross-examination that he had previous acquaintance with Sher Ali (deceased), Dilawar (PW.9) and Nadeem Shah (appellant). Besides previous acquaintance, Waseem Iqbal (PW.10) was having abode at short distance of one kilometer from the house of deceased but still the information about the episode of last seen was imparted to the complainant Dilawar (PW.9) after three days. No explanation worth acceptance is furnished by Waseem Iqbal (PW.10) about the mysterious silence to which he resorted for long three days about the fact which had its importance for the family of deceased. Without speck of reluctance, the statement of Waseem Iqbal (PW.10) can be termed as surrounded amidst doubt. In the case reported as Muhammad Asif v. The State (2017 SCMR 486) the Supreme Court of Pakistan discarded the evidence of a material witness of homicide incident on the ground that his statement under Section 161 Cr.P.C. was recorded with unexplained delay of one or two days, with the following observation:- "There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witness would be fatal and testimony of such witnesses cannot be safely relied upon." 14. Another component of circumstantial evidence is the recovery of corpse on the disclosure and pointing out of appellant, canvassed before us as the mainstay of prosecution case. The complainant Dilawar (PW.9) immediately after acquiring information from the witnesses of last seen, namely Waseem Iqbal (PW.10) and Rajab Ali approached Abid Ali ASI (PW.11). The three private witnesses along with Abid Ali ASI traced Nadeem Shah (appellant) sitting in a hotel of village Abubakar. Astonishingly, Nadeem Shah (appellant) took no time in admitting his guilt before police and even volunteered to get the dead body recovered. Before inching any further upon this part of the prosecution case, we deem it appropriate to mention here that under Article 38 of the Qanun-e-Shahadat Order, 1984 no confession of an accused made before a police officer can be proved against him. Likewise, Article 39 of Qanun-e-Shahadat Order, 1984 bars the proving of a confession made in the police custody. The combined effect of both these articles is to the effect that confession of an accused made before a police officer, either in the custody or otherwise, is inadmissible. Article 40 of Qanun-e-Shahadat Order, 1984 provides an exception to the rule embedded in Articles 38 & 39. According to the exception contemplated in Article 40 of Qanun-e-Shahadat Order, 1984, an incriminating fact discovered in consequence of an information provided by an accused while in the custody of a police officer can still be proved
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against him. For the clarity of proposition, we feel it essential to have a look upon the phraseology of Article 40 which is reproduced in verbatim hereunder:- "How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved." Through bisection of Article 40, it can be gathered that for providing admissibility to the statement of an accused made in the police custody, it is incumbent upon the prosecution to prove the following ingredients:- (i) In pursuance of information so provided by the accused some fact not previously known to anyone be discovered; (ii) The discovered fact must be perceivable through senses; (iii) The fact so discovered must be distinctly related with the fact in issue. While taking advantage of the case, we intend to clarify that only such portion of the statement of an accused can be brought on record under Article 40 which relates to the discovery of a fact…
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