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Petitioner: Nadeem Qayyum and others VS Respondent: The State
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb, Athar Minallah (C.J) Title: Nadeem Qayyum and others vs The State Case No.: Criminal Appeal No. 142 and Criminal Revision No. 71 of 2010 Date of Judgment:2021-10-06 Reported As: 2022 YLR 1290 Result: Order accordingly
JUDGMENT
JUDGMENT MIANGUL HASSAN AURANGZEB, J. Through this judgment, we propose to decide Criminal Appeal No. 142 of 2010 and Criminal Revision No.71 of 2010. 2. Through Criminal Appeal No.142/ 2010, the appellants, Nadeem Qayyum ("Qayyu m"), Tanvir Hussain ("Tanvir") and Muhammad Usman ("Usman") assail the judgment dated 16.02.2010 passed by the Court of the learned Sessions Judge, Islamabad, whereby each of them having been convicted under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860 ("P.P.C.") were sentenced to suffer imprisonment for life and payment of compensation of Rs.1,00,000/- to the legal heirs of the deceased, Nadeem Arshad. It was stipulated that in case of a default in paying the compensation by each of the appellants, they had to suffer another six months rigorous imprisonment. Additionally, the appellants were convicted under Sections 201 and 34, P.P.C. and sentenced to seven years of rigorous imprisonment with a fine of Rs.1,00,000/- on each of them. Through Criminal Revision No.71/2010, the complainant seeks an enhancement in the sentence awarded to the appellants. 3. The appellants had been tried and convicted for murdering Nadeem Arshad, who was about 20 years of age, and for concealing his body by putting it in a gunny bag and throwing it in a well. 4. On 21.01.2009, the complainant, Arshad Mehmood Abbasi (PW-4), who is the deceased's father, submitted a criminal complaint to the Station House Officer, Police Station Koral, District Islamabad. As per the contents of the said complaint, while the complainant was offering his Maghrib prayers his son, Nadeem Arshad, answered a telephone call and told the caller that he could not go out of the house due to cold weather; Nadeem Arshad went out of the house while talking on the phone; when Nadeem Arshad did not return till late night, the complainant reported his son's
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disappearance at the said Police Station; the complainant along with his friends and relatives had been searching for Nadeem Arshad; the complainant was informed by Tariq Mehmood (PW-1) that at about 06:15 p.m., he had seen Nadeem Arshad coming out of his house and going with Qayyum; and the complainant was informed by Tassawar Hussain (PW-2) and Sufi Muhammad Manzoor that at about 07:00 p.m. while they were coming in their vehicle towards Koral, they saw Nadeem Arshad with Qayyum, Tanvir and Usman (hereinafter referred to as "the appellants") on the service road near Khattak's old brick kiln at Gangal. 5. In the complaint, it was mentioned that Nadeem Arshad's mobile phones were not responding, and that the complainant believes that the appellants had abducted him with the intention either to murder him or to obtain ransom. The complainant also gave details of his son's mobile phones and other items in his possession before he disappeared. 6. Initially FIR No. 30, dated 21.01.2009 was registered at Police Station Koral under Sections 365 and 34, P.P.C. 7. On 21.01.2009, Qayyum was arrested by Investigation Officer, Arshad Ali, Sub-Inspector (PW-10) ("I.O."), who produced him before the Court on 22.01.2009 and obtained his physical remand. The I.O. also arrested Tanvir and Usman on 22.01.2009 and obtained their physical remand from the Court on 23.01.2009. THE PROSECUTION'S CASE:- 8. The prosecution's case is that Tariq Mehmood (PW-1) had last seen the deceased alive in the company of Qayyum whereas Tasawwar Hussain (PW-2) had last seen the deceased with all the three appellants. During interrogation, Qayyum informed the I.O. that he along with Tanvir and Usman had murdered the deceased and thrown his body in a well after packing it in a gunny bag. Furthermore, Qayyum had disclosed that he could lead to the recovery of the deceased's body. This disclosure/extra-judicial confession caused the I.O. to take Qayyum to Khattak's brick kiln near the service road in Village Gangal. Qayyum pointed out three locations i.e. (i) the place where the deceased was murdered, (ii) the place where his body was packed in a gunny bag, and (iii) the well where the deceased's body was thrown after he had been murdered. From this place, the following recoveries were said to have been made:- i. Rope (rassi) (Exh.P/20) ii. Waist Coat Button (Exh.P/19) iii. One boot of right foot (Exh.P/17) and iv. One Telenor sim (Exh.P/18) 9. The above items were secured in the memo of recovery (Exh.PT). Furthermore, Sher Afzal and Zummard Hussain (PW-7), after being lowered into the well through a spool, informed the I.O. that there was a dead body in a gunny bag which also contained bricks causing it to be heavy. Due to the gathering of a crowd, Qayyum was sent to the Police Station for the sake of his safety. After the gunny bag was taken out of the well, the deceased's body was recovered from it. Around the deceased's neck, a, rope was tied; and his hands and feet were also tied with ropes. Pictures of the dead body were taken when it was recovered. Witnesses identified the dead body as that of the deceased. The I.O. prepared a memo of identification of the dead body; recorded the statements of the witnesses of recovery; and prepared an inquest report (Exh.PX) under Section 174 of the Code of Criminal Procedure, 1898 ("Cr.P.C."). He drafted an application for postmortem and sent the dead body to the hospital for this purpose. He also prepared a site plan (Exh.P.AA) of the place where the dead body was recovered. 10. On 21.01.2009, Dr. Muhammad Farrukh Kamal (PW-3), Pakistan Institute of Medical Sciences, Islamabad conducted the postmortem and handed over the dead body to the I.O., who in turn handed it over to the complainant for burial. The last worn clothes of the deceased were taken into possession by the I.O. and handed over to the Mohair at the Police Station.
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11. As per the postmortem report (Exh.PA), the cause of death was strangulation. The deceased's trachea, larynx, hyoid bone, and neck vessels were ruptured. There were horizontal and continuous strangulation marks on the deceased's neck. There were scars on the deceased's wrists; the deceased's hands were tied behind his back. All the injuries were ante-mortem. The time between the injuries and death was a few minutes, and the time between death and the postmortem was 20 to 26 hours. 12. The I.O. had also interrogated Tanvir and Usman after arresting them on 22.01.2009. Both of them are said to have made disclosures as to the occurrence. They are also said to have told the I.O. that they could point out the place of the occurrence. 13. On 24.01.2009, the I.O. took all three accused in handcuffs to a spot near Khattak's brick kiln. Qayyum was first taken from the vehicle in which the three accused had been brought to the place of occurrence where he, once again, made pointation of the place of occurrence. Furthermore, Qayyum stated that he could lead to the recovery, from his house, of the deceased's mobile phone set (Nokia N95) and the remaining portion of the rope used in the deceased's murder. Qayyum was taken to his house from where the mobile phone set (Nokia N95) (Exh.P/5) and the rope (Exh.P/14) were recovered. These articles were taken into possession by the I.O. vide memo (Exh.PV) which was signed by witnesses. The I.O. also prepared an un-scaled site plan of the place of recovery of the said articles. After the recovery of the said articles, Qayyum was taken back to the Police Station. 14. The co-accused, Usman had also made pointation of the place where the deceased was murdered as well as the place where his body was packed in a gunny bag, and the well where his body was thrown. After this pointation, Usman was taken back to the vehicle. Thereafter, Tanvir was taken to the place of the occurrence, and he also identified the three spots which had been earlier identified by Usman. Tanvir and Usman also led the police to the recovery of the deceased's belongings from their respective houses. 15. Learned counsel for the appellants submitted that the FIR was registered with a substantial delay of nine hours; that the circumstances relied upon by the prosecution are not firmly established and they do not form a complete chain establishing the guilt of the appellants; that there was no complete chain of circumstances established which ruled out even any remote possibility of anybody else than the accused persons being the authors of the crime; that the learned Trial Court returned a finding of guilt without any plausible reasoning; that the appellants were coerced into making the confessional statements; that there was a substantial delay between the dates when the appellants were arrested and when they are alleged to have made their confessional statements; that the Executive Magistrate should not have recorded the appellants' confessional statements on oath; that the appellants had retracted the confessional statements allegedly made by them; that after recording the appellants' statements, the Magistrate handed over their custody back to the police and not the jail authorities; that the confessional statements made by the appellants whilst in police custody has no evidentiary value; that the appellants could not have been convicted on the basis of last seen evidence; that the gunny bag from which the deceased's body was recovered was open when taken out from the well; and that the evidence of prosecution witnesses is so improbable that no credence should be put on it. Learned counsel for the appellants prayed for the impugned judgment of the learned Trial Court to be set aside and for the appellants to be acquitted. 16. Per contra, learned counsel for the respondent/State contended that the deceased had been last seen alive in the company of the appellants; that after the prosecution has established that the deceased was last seen alive in the company of the appellants, it was for the appellants to explain as to what happened to the deceased and in the absence of any explanation from the appellants, the learned Trial Court rightly convicted the appellants on the basis of circumstantial
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evidence; that the testimony of the witness who had last seen the deceased in the appellants' company could not be shaken; that each of the appellants had led the police to the place of the occurrence and the well where the deceased body was recovered from; that the appellants had confessed to killing the deceased and placing the body in a gunny bag after tying the hands and legs; that each of the appellants actively participated in putting the deceased to death; that the deceased's mobile phones and other belongings were recovered from the appellants' houses; that the appellants had made a judicial confession giving details of how the deceased was murdered and his body thrown into the well; that the appellants had placed bricks in the gunny bag which contained the deceased's body so that it sinks in the well; that the gunny bag had to be opened and the bricks removed therefrom so as to lighten its weight and pull it out of the well; and that the impugned judgment warrants no interference. Learned counsel for the State prayed for the appeal to be dismissed. 17. Learned counsel for the respondent/complainant in Criminal Appeal No.142/2010 and petitioner in the Criminal Revision No.71/2010 submitted that the learned Trial Court had given no justification for not awarding capital punishment to the appellants; that the prosecution had proved its case against the appellants beyond reasonable doubt; that all the three appellants were adults and well aware of the consequences of the heinous crime committed by them; and that for the brutal murder of Nadeem Arshad, the accused should have been sentenced to death. Learned counsel prayed for an enhancement in the sentence awarded to the appellants. 18. We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. 19. The FIR was lodged on 21.01.2009 at 3:10 p.m. at Police Station Koral, District Islamabad under Section 365, P.P.C. (kidnapping or abducting with intent secretly and wrongfully to confine person). In the said FIR, the complainant had nominated the appellants and alleged that they had abducted his son for ransom or with the intention to murder him. Tasawwar Hussain (PW-2) last saw the deceased alive in the company of the appellants at 7:00 p.m. on 20.01.2009. It was only when the deceased did not come home until it was late night that the complainant started searching for him. In cases where a person goes missing it is usual for his relatives to search for him and such search may take a long time. The police is invariably approached only after all avenues for the search are exhausted. A delay in the lodging of an FIR in such cases is not fatal to the case. LAST SEEN EVIDENCE:- 17. An important circumstance, which the prosecution has relied against the appellants, is the evidence of the deceased being last seen alive in the company of the appellants. The complainant, in his complaint, submitted at Police Station Koral at 03:10 p.m. on 21.01.2009, had expressly mentioned that he had been informed by Tariq Mehmood (PW-1) that at about 06:15 p.m. he had seen the deceased come out of his house and go along with Qayyum; and that he had been informed by Tasawwar Hussain (PW-2) and Sufi Muhammad Manzoor that at about 07:00 p.m. when they were coming towards Koral in a vehicle, they saw the deceased with the appellants on the service road near Khattak's brick kiln at Gangal. 18. Tariq Mehmood (PW-1), in his examination-in-chief, deposed that on 20.01.2009 at about 06:15 p.m., he saw the deceased going with Qayyum in front of the outer gate of the complainant's house. He had also deposed that while he was taking his ailing daughter in a taxi to the hospital, he again saw the deceased standing with Qayyum outside Bilal Masjid. Tasawwar Hussain (PW-2) had also deposed that he along with Sufi Muhammad Manzoor, while coming towards Koral on the service road, had seen the deceased with the three appellants near Khattak's brick kiln at Gangal. Had Tariq Mehmood (PW-1) and Tasawwar Hussain (PW-2) not given evidence as to in whose company the deceased was last seen, the testimony of the complainant (PW-4) as to the
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deceased having been last seen with the three appellants would have been purely hearsay and not worthy of any consideration. 22. Tariq Mehmood (PW-1) is the complainant's brother whereas Tasawwar Hussain (PW-2) is the complainant's tenant and runs a school in the building owned by the complainant. Tasawwar Hussain (PW-2) explained in his testimony that he had given a room in his school on rent to a tutor, Iftikhar, who gave tuition to Qayyum, who would often be accompanied by the other two appellants. This is how he knew the appellants. 23. For an offence to be proved, it is not necessary that it must be seen to have been committed. It can be proved by circumstantial evidence also. The factum probandum (the principal fact) may be proved indirectly by means of certain inferences drawn from factum probans (the evidentiary facts). Circumstantial evidence consists of evidence of facts that are so closely associated with the fact in issue that considered together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. It has consistently been held that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. The cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused. 24. The "last seen evidence" is one of the categories of circumstantial evidence as held in the case of Fayya z Ahmad v. The State (2017 SCMR 2026). The legal obligations which the prosecution are required to fulfill where a case is sought to be made on the basis of last seen evidence were enumerated in the said judgment. It was held inter alia that "the proximity of the crime scene plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit." 25. The theory of "last seen together" has recently been well explained by the Hon'ble Supreme Court in the case of Muhammad Abid v. The State (PLD 2018 SC 813) in the following terms:- "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
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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." 26. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Tariq Mehmood (PW-1) deposed that he saw the deceased going with Qayyum at 06:15 p.m. on 20.01.2009 whereas Tasawwar Hussain (PW-2) deposed to have seen the deceased with the three appellants at 07:00 p.m. near Khattak's brick kiln at Gangal. Since the deceased's murder was an unseen occurrence, the time of the deceased's death can be gauged from the postmortem report (Exh.PA). The postmortem on the deceased's body was conducted by Dr. Farrukh Kamal (PW-3) at 08:30 p.m. on 21.01.2009. In his testimony, Dr. Kamal deposed that the time between the death and the postmortem was 20 to 26 hours approximately. This would make the approximate time of death between 06:30 p.m. on 20.01.2009 to 12:30 a.m. on 21.01.2009. Consequently, the time gap between when Tariq Mehmood (PW-1) last saw the deceased (i.e. 06:15 p.m. on 20.01.2009) and when he died would be 15 minutes to 06 hours, whereas the time gap between when Tasawwar Hussain (PW-2) last saw the deceased (i.e. 07:00 p.m. on 20.01.2009) and when he died would be up to five and half hours. There is no evidence on the record to show that after Tariq Mahmood and Tasawwar Hussain had last seen the deceased he was seen in the company of any person other than the appellants before his death. 27. All three appellants opted not to give a statement on oath under Section 340(2) Cr.P.C. to disprove the charges against them. None of the appellants produced any alibi to show that during the period when Tariq Mahmood and Tasawwar Hussain last saw the deceased and the time of death, they were not with the deceased. During the recording of their statements under Section 342, Cr.P.C., the appellants were specifically questioned about them having been last seen with the deceased. This question was answered by the appellants by a simple denial. 28. The place where Tasawwar Hussain had last seen the deceased with the three appellants is in close proximity to the place from where the deceased's dead body was recovered. The site plan of the place of occurrence was made by Malik Muhammad Akram (draftsman). Since Malik Muhammad Akram died on 24.04.2009, his son was produced by the prosecution as PW-9 who deposed that he was well conversant with his father's handwriting and signatures, and that the site plan had been prepared by his father. He had identified his father's signature on the site plan. According to this site plan, the well from which the deceased's body was recovered is 157 feet from Khattak's brick kiln which is 120 feet from the service road from where Tasawwar Hussain had last seen the deceased with the three appellants. There is close proximity between the place where Tasawwar Hussain last saw the deceased in the company of the appellants and from where the deceased's body was recovered. 29. The memo of pointation (Exh.PU) was prepared by the I.O. (PW-10) who was the investigation officer. It was tendered in evidence by the I.O. According to the memo of pointation, the three appellants, on 24.01.2009, identified three spots i.e. (i) where the deceased was put to death by strangulation, (ii) where the deceased's body was placed in a gunny bag, and (iii) the well in which the deceased's body was thrown. The spot where the deceased's body was placed in a gunny bag is within whereas the other two spots are in close proximity to Khattak's brick kiln. It ought to be borne in mind that the pointation was made by the three appellants separately and not jointly. This is explicitly mentioned in the memo of pointation and corroborated by the testimony of the I.O. (PW-10). 30. There is nothing on the record to show that the deceased was last seen in the company of someone other than the appellants. It is, however, not prudent to base a conviction solely on the
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last seen theory. The last seen theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. Although the deceased having been seen last in the company of the accused constituted a significant ground for the appellants' conviction, is not the solitary evidence on the basis of which they were convicted by the learned Trial Court. EXTRA JUDICIAL CONFESSION:- 31. Qayyum was arrested by the I.O. (PW-10) on 21.01.2009. As per the I.O.'s testimony, during interrogation, Qayyum disclosed that he along with Tanvir and Usman had murdered the deceased and threw his body in a well after placing it in a gunny bag. The deceased's body was recovered on 21.01.2009 on the pointation of Qayyum. On 22.01.2009, the I.O. arrested Tanvir and Usman. 32. The testimony of the I.O. (PW-10) as to the confession and disclosures made by Qayyum is corroborated by that of Zamurrad Hussain (PW-7), who had informed the police about Qayyum's address. Zamurrad Hussain (PW-7) deposed inter alia that Qayyum was arrested on 21.01.2009 in his presence and that the disclosure as to the occurrence and the place where the deceased's body was thrown had also been made by the Qayyum in his presence. Zamurrad Hussain was one of the persons who went down the well to recover the deceased's body on Qayyum's pointation. The gunny bag containing the deceased's body was opened by the police in Zamurrad Hussain's presence. He also signed the memo of recovery with respect to the gunny bag, the three cords and the…
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