Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: The State VS Respondent: Noor Hassan alias Nooro
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Ali Zia Bajwa Title: The State vs Noor Hassan alias Nooro Case No.: Murder Reference No.05 of 2020, Criminal Appeal No. 88-J of 2020 Date of Judgment:2022-04-12 Reported As: 2022 LHC 5147 Result: Appeal Dismissed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Noor Hassan alias Nooro son of Abid Hussain (convict) was tried by the learned Additional Sessions Judge/Model Criminal Trial Court Sadiqabad in the case F.I.R. No. 658 of 2019 dated 25.09.2019 registered at Police Station City Sadiqabad, District Rahim Yar Khan, in respect of offences under sections 302, 377, 364-A and 311 P.P.C. for committing the Qatl-i-Amd of Allah Ditta son of Fida Hussain (deceased). The learned trial court, vide judgment dated 13.02.2020, convicted Noor Hassan alias Nooro son of Abid Hussain (convict) and sentenced him as under: Noor Hassan alias Nooro son of Abid Hussain: i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Allah Ditta son of Fida Hussain (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. ii) Rigorous Imprisonment for ten years under section 377 P.P.C. and directed to pay fine of Rs. 50,000/- and in default of payment of fine, the convict was directed to further undergo three months of simple imprisonment. The convict namely Noor Hassan alias Nooro son of Abid Hussain was ordered to be hanged by his neck till dead. To the extent of sentence awarded to the convict under section 377 P.P.C., the benefit available under Section 382- B of Code of Criminal Procedure, 1898 was extended to the convict by the learned trial court. 2. Feeling aggrieved, Noor Hassan alias Nooro son of Abid Hussain (convict) lodged Criminal Appeal No.88-J of 2020, through jail, assailing his conviction and sentences. The learned trial court submitted Murder Reference No.05 of 2020 under section 374 Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to
---
## Page 2
the appellant namely Noor Hassan alias Nooro son of Abid Hussain. We intend to dispose of the Criminal Appeal No.88-J of 2020 and the Murder Reference No.05 of 2020 through this single judgment. 3. Precisely , the facts necessary , as divulged through the statement of Fida Hussain (PW-8) , the complainant of the case, are as under:- "Stated on oath that I am resident of Mohalla Hussain Abad near Bakhtawar Hospital on bank of canal Sadiq Abad. On 25.09.2019, my son Allah Ditta aged about 09 years went outside the house for playing at about 03:00 PM and did not return till sunset upon which I became worried and with my witnesses Zulfiq ar and Abdul Saboor started his search however he remained untraceable. When we could not search him, I went to police station and presented my application about abduction of my son Allah Ditta against some unknown accused persons. My application is Ex. P .I. containing my signature in Urdu as Ex.PI/1. After registration of my F.I.R., I returned to my house. Then at about 09:15 PM., Abdur Razaq ASI/I.O reached my house and asked about recovery/return of my son. It replied in negative. The I.O prepared rough site plan of place of missing of my child on our pointation and returned from there. Thereafter my PWs Sajjad and Rizwan came in street of my house and upon seeing crowed (sic) in the street, they asked from me what happened upon which I replied that my son has lost. They asked his time of missing. I replied 03:00 PM. as the time of went missing of my son. Then they told me that at 05:00 PM., they saw my son Allah Ditta with accused Noor Hassan Nooro present in Court in custody near Railway lines opposite of under construction building of Iqra College. Upon which I took them to the police station however in the way at Ghousia Chowk we met with Abdur Razaq ASI. and I produced them to him. Said ASI got recorded their statements. I also produced my written application Ex.PI/2 to said ASI. containing my thumb impression and signatures in Urdu as Ex.PI/3. Thereafter , on recovery of dead body of my son. Allah Ditta on pointation of accused Noor Hassan alias Nooro and after autopsy , his dead body was handed over to me vide receipt corpse Ex. P.A. The police completed its proceedings in the case. Present accuse d is my actual culprit therefore he may be convicted and sentenced as severe as possible." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Noor Hassan alias Nooro son of Abid Hussain was sent to face trial. The learned trial court framed the charge against the accused on 21.11.2019, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got recorded statements of fourteen witnesses. Fida Hussain (PW-8), the complainant of the case, gave the same evidence as has been reproduced in Paragraph 3 of the judgment. Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) stated that on 25.09.2019 at about 05.00 p.m., they had last seen the deceased alive in the company of the appellant and further stated that on 27.09.2019, the appellant got recovered his own clothes which he was wearing on 25.09.2019. Zulifqar Ali (PW-7) made the same statement as made by Fida Hussain (PW-8) and further stated that on 26.09.2019, the appellant led to the recovery of the dead body of the deceased, which was taken into possession through the recovery memo (Exh. P.D.). Muhammad Ijaz (PW-4) stated that on 27.09.2019, he identified the dead body of the deceased and in his presence the Medical Officer handed over the last worn clothes of the deceased after post mortem examination of the dead body . Muhammad Shahzad Patwari (PW-9) prepared the scaled site plan of the place of occurrence (Exh. P.J.). Muhammad Mughees, Junior Forensic Scientist PFSA (PW-11) gave evidence with regard to the report of the Punjab Forensic Science Agency , Lahore (Exh. P.K.). Abdul Sattar 249/C (PW-1) stated that on 27.09.2019, he escorted the dead body of the deceased to the hospital for his post mortem examination. Ahsan Majeed 1236/HC (PW-14) stated that on 27.09.2019, the Investigating Officer of the case handed over to him eight sealed parcels for keeping in safe custody and on 29.09.2019, he handed over the said sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Muhammad Ilyas, SI (PW-10) investigated the case from 26.09.2019 till 23.12.2019 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court. Abdul Razzaq, A.S.I. (PW-12) investigated the case from 25.09.2019 till 26.09.2019, arrested the appellant on 26.09.2019 and narrated the facts of investigation as conducted by him in his statement before the learned trial court. Nazar Hussain Nazar , SI (PW-13) investigated
---
## Page 3
the case from 07.10.2019 till 23.12.2019 and narrated the facts of the investigation as conducted by him in his statement before the learned trial court 6. The prosecution also got Dr. Muhammad Hanif Khalti (PW-3) examined, who on 27.09.2019, was posted as Medical Officer at the T.H.Q. hospital Sadiqabad and on the same day conducted the postmortem examination of the dead body of Allah Ditta son of Fida Hussain (deceased). Dr. Muhammad Hanif Khalti (PW-3), on examining the dead body of Allah Ditta son of Fida Hussain (deceased) observed as under:- "Description of injuries (including findings on dissection). A dead body of young body wearing white colour Shalwar . He has following injuries: 1. A lacerated wound 3 x 0.7 cm on the occipital region of the skull. The eyes are protruded body in advance stage of putrefaction. Rectum is coming through the anus. .............. Report Histopathology of Lab Expert: Vide Forensic Histopathology Report No.2019 255754-Path-07479-Path-15227 dated: 4-12-2019, Histological examination of the heart section reveals patent coronaries and un-remarkable myocardium. The lungs and liver sections reveals autolytic changes. The renal sections reveal vascular congestion and presence of hemorrhages inside renal tissue. Histological examination of multiple section from hyoid bone reveals bone, entrapped and those are blood hemorrhage denoting Ante Mortem Injury to hyoid bone. Forensic T oxicology Analysis: Vide Forensic Toxicology Forensic Report No.2019 255754-T OX-14520 dated: 12-11-2019, drugs, poison were not detected in liver and stomach contents and item No.01. Forensic D.N.A. and Serology: Vide Forensic and Serology analysis report No.PFSA2019-255754-DNA-37927 dated: 20-12-2019, Seminal material was found on item No.8.4. Trace number of spermatozoa were identified on item No.6.2. The D.N.A. profile obtained from the sperm fraction of item No.8.4 matches the D.N.A. profile of Noor Hassan alias Nooro (Item S.1). The probability of finding un-related, individual at random in the population as being source of the D.N.A. obtained from sperm fraction of item No.8.4 is approximately one in 2 septillion in Caucasians. FINAL OPINION: In my opinion, the most probable cause of death in this case is respiratory failure due to suf focation (Throttling)." The prosecution also got Dr. Syed Majeed Gilani (PW-2) examined, who on 28.09.2019 had examined the appellant and had found him capable of having intercourse. 7. On 06.02.2020, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Abdul Saboor and Atta Hussain as being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency , Lahore (Exh.PK/4) regarding the analysis of hyoid bone and the viscera of the deceased and the report of Punjab Forensic Science Agency , Lahore (Exh.PK/5) regarding detection of any poison. The report of Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the D.N.A. analysis of the items submitted to the same was brought on record during the statement of Muhammad Mughees, Junior Forensic Scientist PFSA (PW -11). 8. After the closure of prosecution evidence, the learned trial court examined appellant namely Noor Hassan alias Nooro son of Abid Hussain under section 342 Cr.P.C. and in answer to question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. He further stated that he had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant namely Noor Hassan alias Nooro son of Abid Hussain opted not to get himself examined under section 340(2) Cr .P.C did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court Sadiqabad, convicted and sentenced the appellant as referred to above. 10. After arguing the matter at some length as far as the merits of the appellant' s case are concerned, the learned counsel for the appellant has submitted that he only prays for the reduction of the appellant' s sentence from death
---
## Page 4
to imprisonment for life and in this conn ection he has referred to various circumstances available on the record indicating some mitigating factors. 11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the appellant had carnal intercourse against the order of nature with the deceased and then murdered the deceased. The learned Deputy Prosecutor General further argued that the recovery of the dead body on the pointing of the appellant also corroborated the other prosecution evidence. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. The learned Deputy Prosecutor General also opposed the request made by the learned counsel for the appellant regarding the reduction of the appellant' s sentence. Lastly , the learned Deputy Prosecutor General prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial. 13. After perusing the evidence, it is pertinent to mention here that in the instant matter , ocular evidence is not available. There can be no dispute regarding the fact that the case is built on circumstantial evidence. In dealing with circumstantial evidence, the rules especially applicable to such evidence must be borne in mind. Sir Alfred Wills in his book "An Essay on the Principles of Circumstantial Evidence " (pages 173 to 190 of the Fifth American , from the Fourth London Edition publishe d in 1872) lays down the following rules specially to be observed in the case of circumstantial evidence: "RULE 1.--The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum. RULE 2. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability RULE 4.- In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. RULE 5. -- If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted." Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which no conclusion other than one of guilt of the accused can be reached. 14. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the evidence of the deceased being last seen alive in the company of the appellant , recovery of the dead body of the deceased on the pointing of the appellant , the recovery of the clothe s of the appellant which he was wearing at the time when he was last seen in the company of the deceased , the medical evidence and the evidence of the report of Punjab Forensic Science Agency , Lahore (Exh. P.K.) regarding the D.N.A. analysis of the items sent to it for analysis. Firstly , we shall deliberate upon the evidence of the prosecution that the deceased was last seen alive in the company of the appellant. Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) stated that on 25.09.2019, at about 05.00 p.m., they had last seen the deceased alive in the company of the appellant when the appellant and the deceased were both present across the Railway lines near the under construction building of Iqra Post Graduate Girls College , Sadiqabad. Both the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6), further stated that they had told the fact that they had seen the deceased present across the Railway lines near the under construction building of Iqra Post Graduate Girls College , Sadiqabad, in the company of the appellant to Fida Hussain (PW-8), the complainant of the case and also to the Investigating Officer of the case. During the course of cross-examination of the prosecution witnesses, it was also brought on record that the place where the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) had last seen the deceased alive in the company of the appellant was at a distance of just one acre from where the dead body of the deceased was got recovered by the appellant. During cross-examination Zulifqar Ali (PW-7) explained as under:-
---
## Page 5
"After stopping of official vehicle, accused Noor Hassan alighted of the vehicle and at first, he pointed out the place where the P.W.S. Rizwan and Sajjad met him and then he said to point out the place of presence of dead body . The distance between both said places is about 1-1/2 acre." Similarly , Fida Hussain (PW -8), the complainant of the case during cross-examination stated as under:- "The distance between the pointed place of presence of the accused Noor Hassan, and Allah Ditta by my P.W.S. on 25-09-2019 at 05:00 p.m and the place of presence of dead body in Sugar Cane Crop towards Haq Town is about 1-1/2 acres." We have scrutinized the statement of prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) and find that they made consistent statements and duly identified the appellant namely Noor Hassan alias Nooro as being the person whom they had seen on 25.09.2019 at about 05.00 p.m. alive in the company of the deceased when the appellant and the deceased were both present across the Railway lines near the under construction building of Iqra Post Graduate Girls College , Sadiqabad, at a distance of just one acre from the place where subsequently the dead body of the deceased was got recovered by the appellant . During the course of cross-examination, the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) were also questioned with regard to the distance between them and the appellant at the time when they had seen the appellant with the deceased and both the witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) stated that they had seen the appellant when they were present at a distance of 4/5 feet from the appellant. The prosecution witness namely Rizwan Ahmad (PW -5) stated as under:- "The accused Noor Hassan and Allah Ditta were standing at right side of Railway Line. The distance between the accused Noor Hassan, and Allah Ditta with us was about 4/5 feet." The prosecution witness namely Sajjad Hussain (PW -6) stated as under:- "We were on Motorcycle and upon seeing them (Noor Hassan and Allah Ditta), we stopped there. Accused Noor Hassan was also on the right side of Railway Lines. He was at the distance of about 3/4 feet from us. " In this manner , the ability of the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) to had rightly identified the appellant as being present with the deceased cannot be doubted. Another important aspect of the case is that the appellant was closely related to the prosecution witne ss namely Sajjad Hussain (PW- 6) as being his nephew and moreover used to stay with his maternal grandmother in the house of the complainant. Sajjad Hussain (PW -6) during cross-examination explained as under:- "Accused Noor Hassan is my nephew by relation. Accused Noor Hassan used to stay/reside with his maternal grandmother (complainant' s mother) in complainant' s house Of f and on." For this reason that the appellant was so closely related to the deceased, the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) were justified in having no apprehension when they saw the deceased in the company of the appellant. Moreover , it was further stated by the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) that they told the said fact to Fida Hussain (PW-8), the complainant of the case and , who was searching for the missing deceased and accompanied Fida Hussain (PW-8) to the Police Station for making their statements in this regard to the Investigating Officer of the case. Though the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) were cross-examined at length, however , nothing fruitful for the appellant cropped up during their cross-examinatio n. It was established on record that between the time and the place where the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) had seen the deceased in the company of the appellant and the time and the place from where eventually the dead body of the deceased was recovered, there was no possibility of any other person intervening, proving, that none other than the appellant was the culprit. Moreover , the clothes (Shalwar P-6 and Qameez P-7) which the appellant was wearing at the time when he was seen by the prosecution witnesses in the company of the deceased were got recovered by the appellant on 27.09.2019 and were identified by both the prosecution witnesses namely Rizwan Ahmad (PW-5) and Sajjad Hussain (PW-6) as being the same clothes (Shalwar P-6 and Qameez P-7) which they had seen the appellant wearing when they had come across him and the deceased. Undoubtedly , "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty . The "last seen theory" holds the courts to shift the burden of proof to the
---
## Page 6
accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when 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. The provisions of Article 122 of Qanun-e-Shahadat Order 1984 itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company . He must furnish an explanation that appears to the court to be probable and satisfactory . If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Article 122 of Qanun-e-Shahadat Order 1984. In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in the discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Article 122 of Qanun-e-Shahadat Order 1984 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts that are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation as an additional link which completes the chain. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and only then the onus can be shifted on the accused under Article 122 of Qanun-e-Shahadat Order 1984. In this case, the prosecution has succeeded in proving that the deceased was last seen in the company of the appellant at a place which was near to the place from where eventually the dead body of the deceased was recovered. Hence, we are satisfied that the prosecution has discharged the onus placed upon it to prove the guilt of the appellant , however , the appellant failed miserably to adduce any explanation of him having been seen last in the company of the deceased near the place from where the dead body of the deceased was recovered. Reliance is placed on the case of "QAISAR MEHMOOD and another Vs. The State" ( 2021 SCMR 662 ) wherein the august Supreme Court of Pakistan has held as under:- "........likewise, applying the same principle, the Court may rely upon the evidence of last seen, without a demur , if found free from any taint, constituting a reliable link between the offender and the victim within the proximity of time and space." Reliance is placed on the case of "WAQAR A. SHAMSI and another Vs. The State (2019 SCMR 2039 ) wherein the august Supreme Court of Pakistan has held as under:- "Calamity strikes by surprise; people seldom fall prey to crimes under ideal circumstances, therefore, it would be unrealistic to insist for or expect choice uniform pieces of evidence in every criminal case; what is to be essentially seen is that whether prosecution was able to come forward with the available evidence, possible under the circumstances of the case and that whether such a volume or nature of evidence is sufficient to sustain the charge. In the present case, the complainant, deceased' s brother , unsuspectingly sought information from Waqar Ali Shamsi appellant, being a fast friend, expected to know the whereabouts; as the investigation geared up, he made his breast clean, reaching out to the deceased…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.