Full Judgment Text & Judicial Ruling

P L D 2026 Supreme Court 222 Present: Jamal Khan Mandokhail, Athar Minallah and Salahuddin Panhwar, JJ ZUNAIR YOUNAS and another---Petitioners Versus The STATE through P.G., Punjab and another---Respondents Criminal Petitions Nos. 532, 444-L and 445-L of 2018, decided on 22nd April, 2025. (On appeal against the judgments dated 09.04.2018 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Crl. As. Nos.304, 305, 313 and M.R.No.39 of 2014/BWP.). (a) Criminal Procedure Code (V of 1898)--- ----S. 161---Qanun-e-Shahadat (10 of 1984), Art. 140---Statements under section 161, Cr.P.C. are not admissible except for limited purpose of contradiction under Article 140 of Qanun-e-Shahadat, 1984. (b) Words and phrases--- ----'Discovery' and 'recovery'---Distinction stated. Black's Law Dictionary rel. (c) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 38, 39 & 40---Criminal Procedure Code (V of 1898), S. 162---Disclosure of accused---Custodial discoveries---Admissibility and reliance---Principles---Evidentiary admissibility permitted under Article 40 of Qanun-e-Shahadat, 1984 must not be employed as a device to sidestep overarching protections enshrined in Articles 38 & 39 of Qanun-e-Shahadat, 1984 and section 162, Cr.P.C.---Where a discovery is made on the basis of such disclosure, resultant recovery must be independently evaluated on the touchstone of credibility, reliability, and corroboration through forensic or circumstantial material---Limited admissibility under Article 40 Qanun-e-Shahadat, 1984 does not, by itself, prove guilt but only allows a fact to be brought on record which might, when considered in conjunction with other evidence, contribute to the chain of circumstances---In order for provision of Article 40 of Qanun-e-Shahadat, 1984 to be validly invoked, following essential elements must be satisfied: (i) Accused must be in lawful police custody in that particular case at the time of making disclosure. A voluntary disclosure made outside custodial context does not attract operation of Article 40 of Qanun-e-Shahadat. (ii) Information must be specific and must distinctly relate to the fact discovered. Generalized or vague statements are not covered; discovery must be directly traceable to information furnished. (iii) There must be tangible discovery of a material fact, such as recovery of an object, article, weapon, or place, which was previously unknown to investigating agency. (iv) There must be clear causal link between disclosure and discovery. The fact must be discovered as direct and immediate consequence of the information provided by accused. (v) Only that portion of statement which relates distinctly to fact discovered is admissible. Remainder of the statement, including any confessional or incriminating parts not tied to the discovery, remains inadmissible. (vi) Recovery must be genuine, verifiable, and documented through credible and preferably independent witnesses. Authenticity of discovery is not presumed and must be established through cogent evidence. (vii) Evidentiary value of discovery must be assessed in conjunction with other corroborative evidence. A discovery alone, even if admissible, is insufficient to sustain conviction unless it fits into an unbroken chain of circumstances. ----These principles form doctrinal boundary of Article 40 of Qanun-e-Shahadat, 1984 and serve to preserve delicate balance between probative force of custodial discoveries and fundamental safeguards against compelled self-incrimination and misuse of police authority---Any departure from such safeguards would render resultant discovery legally infirm and inadmissible for the purposes of conviction. Black's Law Dictionary; Zafar Ali Abbasi v. Zafar Ali Abbasi 2024 SCMR 1773; Akhtar v. Khwas Khan 2024 SCMR 476; The State v. Ahmed Omar Sheikh 2021 SCMR 873; Mufti Kafayat Ullah v. The State 2020 SCMR 1248; Fazal Subhan v. The State 2019 SCMR 1027; Hayatullah v. The State 2018 SCMR 2092; Gul Muhammad v. The State 2011 SCMR 670 and Mst. Askar Jan v. Muhammad Daud 2010 SCMR 160 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302 (b) & 377---Qanun-e-Shahadat (10 of 1984), Arts.40 & 129, illustration (g)---Qatl-i-amd and sodomy---Re-appraisal of evidence---Disclosure of accused---Withholding of evidence---Presumption---DNA test report, non-producing of---Effect---Both the accused persons were alleged to have committed sodomy with deceased whereafter he was murdered---Trial Court convicted both the accused persons and sentenced one to death while the other was given imprisonment for life---High Court reduced the sentence of accused from death to imprisonment for life whereas the other was acquitted of the charge---Validity---Allegation of sodomy lacked corroboration due to absence of DNA report or chemical examiner s findings, despite the claim of prosecution that anal swabs were submitted for testing---Critical DNA profiling and chemical report that could have supported the charge of unnatural lust were missing---Court could infer under Article 129(g) of Qanun-e-Shahadat, 1984 that unproduced evidence would be unfavorable to the party withholding it and missing documents would not have supported prosecution s case---Motive was not established, the last seen evidence was unreliable, recoveries were doubtful and medical and forensic links were either suppressed or infirm---Chain of circumstantial evidence stood fractured---Where prosecution's case rested entirely on circumstantial evidence, each link in the chain was to be proved to the exclusion of every reasonable doubt---Failure to establish any one link was sufficient to vitiate the entire case---There were legal limitations of Article 40 Qanun-e-Shahadat, 1984 and prosecution had failed to satisfy strict conditions for admissibility and reliability of custodial recoveries---Chain of circumstances necessary for conviction was not satisfactorily established---Supreme Court set aside conviction and sentence awarded to accused and declined to interfere in acquittal of co-accused by the High Court. Yaqub Shah v. The State 1995 SCMR 1293; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Muhammad Abid v. The State PLD 2018 SC 813; Fayyaz Ahmad v. The State 2017 SCMR 2026; Akbar Ali v. The State 2007 SCMR 486; The State v. Ahmed Omar Sheikh 2021 SCMR 873; Qaisar Mehmood v. The State 2021 SCMR 662; Abdul Qadeer v. The State 2024 SCMR 1146; Muhammad Shafi alias Kuddoo v. The State and others 2019 SCMR 1045; Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervaiz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Abdul Jabbar v. State 2019 SCMR 129 and Muhammad Riaz v. Khurram Shehzad and another 2024 SCMR 51 rel. (e) Constitution of Pakistan--- ----Arts. 4, 9, 10-A & 14---Criminal administration of justice---Fundamental rights---Pakistan s judicial system, though empowered to rectify individual injustices through acquittals, remains institutionally ill-equipped to address profound harms, irreversible trauma, reputational erosion, financial ruin, and unjust deprivation of liberty, inflicted on accused individuals during protracted trials, often precipitated by flawed investigations---Such systemic failures stem from entrenched deficiencies, including absence of statutory mechanisms to ensure investigational transparency and lack of professional accountability within law enforcement, which collectively corrode public trust and undermine the integrity of the justice framework---Addressing such gaps transcends procedural reform; it constitutes a Constitutional obligation under Articles 4, 9, 10-A & 14 of the Constitution, which enshrine due process, fair trial, and preservation of human dignity---Justice system s legitimacy hinges not on punitive severity but on equitable, rigorous processes that safeguard accused individuals rights against institutional expediency, thereby reinforcing critical balance between state authority and individual liberty. Ms. Bushra Qamar, Advocate Supreme Court for Petitioners (in Crl. P. No. 532 of 2018). Naveed Ahmad Khawaja, Advocate Supreme Court for Petitioners (in Crl. Ps. Nos. 444-L and 445-L of 2018). Irfan Zia, Addl. P.G., Punjab for the State. Assistance: Muhammad Subhan Malik (Judicial Law Clerk). Date of hearing: 22nd April, 2025. JUDGMENT SALAHUDDIN PANHWAR, J.--- Crl.P.No.532 of 2018: The brief facts culminating in the present criminal petition are that the Petitioner, Zunair Younas, along with his co-accused, Ali Hassan, was tried by the learned Sessions Judge, Bahawalpur, in consequence of registration of First Information Report No.243 of 2013 dated 12.08.2013, under Sections 302, 367-A, and 34 of the Pakistan Penal Code, 1860 (hereinafter "P.P.C."), at Police Station City Yazman, District Bahawalpur. The accusation against the petitioner and his co-accused was of committing unnatural offence (sodomy) and thereafter murdering the son of the complainant, namely Nauman Hanif. 2. Upon conclusion of the trial, the learned Sessions Court, vide judgment dated 13.06.2014, convicted the petitioner under Section 302(b) read with Section 34, P.P.C. and sentenced him to death. Co-accused Ali Hassan was similarly convicted under Section 302(b) read with Section 34, P.P.C., albeit sentenced to imprisonment for life. In addition, both convicts were directed to pay compensation of Rs.200,000 each to the legal heirs of the deceased under Section 544-A of the Code of Criminal Procedure, 1898 (hereinafter "Cr.P.C."), and in default thereof, to undergo six months' simple imprisonment. The benefit of Section 382-B, Cr.P.C. was extended to co-accused Ali Hassan. 3. The matter was thereafter taken up in appeal. The learned High Court, while maintaining the conviction of the petitioner Zunair Younas, was however persuaded to alter the sentence of death into imprisonment for life. The sentence of compensation and the sentence in default thereof were maintained. The benefit of Section 382-B, Cr.P.C. was also extended to the petitioner. However, co-accused Ali Hassan was acquitted by the learned High Court by extending to him the benefit of doubt. 4. The prosecution's version, as recorded in the judgment rendered by the learned High Court, may be profitably reproduced for clarity: "4. Brief facts of the case as given by the complainant Muhammad Hanif (PW-3) in his "complaint" (Ex.PG), on the basis of which the formal FIR (Ex.PG/A) was chalked out, are that he (complainant) was resident of Ward No.4 of Yazman City and was a Sub-Inspector in Traffic Police, Bahawalpur. On Sunday (11.08.2013), at about 8.20 p.m, the complainant along with Abdul Razzaq (PW-4), Javed Akhtar, Muhammad Anwar (PWs since given up) and Nauman Hanif (deceased) aged about 15/16 was sitting in front of the Bhatick of his house on cots, as it was Eid day and they were gossiping. The electric bulb, installed outside the Bhatick was illuminated. In the meanwhile, Saqib Khursheed (accused since tried and convicted separately as juvenile), along with Zunair Younas and Ali Hassan (petitioners), while boarding a motorcycle bearing registration No.BRL/4561, came there, who often used to visit the son of the complainant. Saqib Khursheed (co-accused) asked Nauman Hanif (deceased) to accompany them to Gulshan Park. At the time of departure, Nauman Hanif (deceased) was wearing a gold locket weighing one tola, one gold ring having name "Nauman", engraved on it, Omax wrist watch, purse containing photo of the complainant, photo copies of the identity cards of the complainant and Abdul Razzaq (PW-4), visiting cards and cash amount of Rs.1500/-. The deceased was also in possession of a cell phone Nokia having Sim No.0321-6849292. Nauman Hanif (deceased) accompanied the accused on his own motorcycle which was having red colour and the same was without registration number. It was further alleged by the complainant in the complaint that Nauman Hanif (deceased) did not return back for a considerable period, whereupon he (complainant) made a telephone call on the mobile phone of Nauman Hanif (deceased) but the same was switched off. The complainant along with the PWs became worried and he reached in Gulshan Park for the search of his son but could not find him. The complainant also alleged in the complaint that he contacted with the relatives of the accused, who told that the accused were also missing from their houses. During the search of Nauman Hanif (deceased), it came to the knowledge of the complainant that the accused were of bad character, whereupon, the complainant came to this conclusion that his son has been abducted and murdered by the accused after committing sodomy with him." 5. Learned counsel for the petitioner has raised several grounds before this Court. At the outset, it was submitted that the entire occurrence was unwitnessed, and that the prosecution's case is founded solely upon circumstantial evidence. Such evidence, by its nature, is considered inherently fragile and must be scrutinized with greater caution. Learned counsel contended that the statements of the prosecution witnesses are replete with material contradictions and embellishments which appear to have been overlooked by the learned Courts below. It was further urged that the medical evidence stands in conflict with the ocular and circumstantial narrative, thereby rendering the prosecution's case doubtful. 6. It was next contended that both the alleged motive and the recoveries have been disbelieved by the learned Courts below. This, according to learned counsel, causes an irreparable dent in the prosecution's case. Particular emphasis was placed on the fact that co-accused, who were attributed with identical roles and implicated through the same set of evidence, have been acquitted whereas the petitioner alone has been convicted. It was lastly urged that the reasoning adopted by the learned High Court to sustain the conviction is conjectural and strained, thereby warranting interference by this Court. 7. Conversely, learned Law Officer, ably assisted by learned counsel for the complainant, opposed the petition with vehemence. It was submitted that the prosecution witnesses bore no animosity against the petitioner which might have led to his false implication. The evidence produced by the prosecution was described as cogent, credible, and sufficient to sustain the conviction. On this premise, it was urged that the impugned judgment does not merit any interference by this Court. 8. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 9. There is no denial to this fact that the instant occurrence wherein allegedly sodomy was committed with one Nauman Hanif, son of the complainant, and he was subsequently done to death, was based upon circumstantial evidence. To bring home the guilt of the petitioner, the prosecution relied upon circumstantial evidence in the shape of (i) motive (ii) last seen evidence produced by Muhammad Hanif, complainant (PW-3), Abdul Razzaq (PW-4), (iii) recovery of dead body and other articles belonging to the deceased on the pointation of the petitioner. As per the prosecution story, on 11.08.2013 at about 08:30 pm, Nauman Hanif deceased along with complainant Muhammad Hanif (PW-13), his brother-in-law namely Abdul Razzaq (PW-4) were present in his house. In the meanwhile, the petitioner along with co-accused came to the house of the complainant and took the deceased with them on the pretext of going to a park. When the deceased did not return home after a considerable period of time, the complainant started his search. During the search, the petitioner and the co-accused were also found missing from their houses and as such it also transpired to the complainant that the accused are of bad character. Whereupon, the complainant reached to the conclusion that his son has been abducted and murdered by the accused after committing sodomy with him. The prosecution has specifically alleged a motive of committing sodomy with the deceased. To prove the said motive, Dr. Ajmal Javed (PW-1) was produced. According to the said Doctor, six anal swabs were taken, sealed and sent to the Chemical Examiner and Director of Bimolecular Department, University of Punjab, Lahore, for DNA Test and detection of semen. However, neither any report of the DNA Test or the report of the Chemical Examiner has been placed on record, which means that the prosecution has withheld the best evidence, which could prove the motive part of the prosecution story. 10. Before proceeding further, it is necessary to delineate the doctrinal basis and evidentiary scope of Article 40 of the Qanun-e-Shahadat Order, 1984 (hereinafter "QSO"), particularly in the context of custodial disclosures made during investigation. The said provision runs as under:-- "40. 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 a 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". Article 40 QSO, though succinct in its text, embodies a distinct and carefully delineated exception to the general exclusionary provisions found in Articles 38 and 39 of QSO. Whereas the latter provisions proscribe reliance on confessional statements made either to a police officer or while in police custody unless made in the presence of a Magistrate, Article 40 QSO permits a qualified and narrow admission into evidence of only that portion of a statement which directly relates to a fact discovered in consequence thereof. This limited admissibility is not predicated on the veracity of the statement per se, but on the objective and verifiable consequence that ensues from it. 11. This principle finds conceptual support in common law jurisprudence, particularly in what has been described as the doctrine of confirmation by subsequent facts. Dean Wigmore1 formulated this doctrine to explain the probative value of a confession which, although otherwise inadmissible, leads to the discovery of real and material evidence. According to Wigmore, "the doctrine was that where, in consequence of a confession otherwise inadmissible, search is made and facts are discovered which confirm it in material points, the possible influence which through caution had been attributed to the improper inducement is seen to have been nil, and the confession should be accepted". Commentators Cowen and Carter2 also recognized this principle and referred to it as the doctrine of confirmation by consequently discovered facts. This approach reflects the underlying rationale of Article 40 of QSO, where the discovery of a fact in consequence of a statement serves to validate that limited portion of the statement which led to the discovery. The confirmatory nature of the discovered fact enhances the reliability of that specific part of the information, rendering it admissible within the limits prescribed by law. 12. This carefully crafted exception must also be read harmoniously with the procedural safeguards under Sections 161 and 162, Cr.P.C. Section 161, Cr.P.C. authorizes the police to record statements of persons acquainted with the facts of the case, whereas Section 162 imposes an evidentiary bar against their substantive use during trial. Statements under Section 161, Cr.P.C. are, therefore, not admissible except for the limited purpose of contradiction under Article 140 of QSO. In contrast, Article 40 QSO carves out a limited evidentiary window, not to admit the statement in its entirety, but only to the extent that it leads to the discovery of a relevant fact, such as the recovery of a weapon or article, and only that fragment of the disclosure which is causally connected to the said recovery becomes admissible. 13. Firstly, the term "fact" as used in the law of evidence includes both physical and psychological states or mental conditions. Secondly, a critical distinction must be drawn between the term's "discovery" and "recovery", which are often mistakenly used interchangeably. According to Black's Law Dictionary, "discovery" refers to the act or process of finding or learning something that was previously unknown, whereas "recovery" means the regaining or restoration of something lost or taken away. For instance, where an accused discloses, "I have kept the firearm concealed behind the old house in a heap of wood," the fact discovered is not merely the firearm, but the accused's knowledge of its location and act of concealment. The discovery thus lies in the disclosure of the place and manner in which the article is hidden. Although an object may constitute a "fact" in itself, discovery under Article 40 entails a broader cognitive element than simple recovery. 14. We have also observed with concern that law enforcement agencies frequently frame charges against accused persons based on recoveries that are inconsequential or unsupported by proper procedural documentation. In many such cases, there is a glaring absence of signed written statements by the Investigating Officer, attested by independent witnesses (mashirs), and no corresponding departure entry from the relevant police station. These lapses severely compromise the credibility of the recoveries and open the door to fabrication and abuse. While an eventual acquittal may follow, there exists no mechanism to compensate the accused for the trauma and deprivation endured throughout the investigation and trial. This systemic malaise demands rectification to protect individual rights and ensure that investigative procedures meet the standards of due process. 15. It needs to be emphasized that the jurisprudence under Article 40 QSO does not lend itself to an expansive reading. The evidentiary admissibility permitted under this Article must not be employed as a device to sidestep the overarching protections enshrined in Articles 38, 39 QSO and Section 162 Cr.P.C. Even where a discovery is made on the basis of such a disclosure, the resultant recovery must be independently evaluated on the touchstone of credibility, reliability, and corroboration through forensic or circumstantial material. The limited admissibility under Article 40 QSO does not, by itself, prove guilt, but only allows a fact to be brought on record which might, when considered in conjunction with other evidence, contribute to the chain of circumstances (Zafar Ali Abbasi v. Zafar Ali Abbasi 2024 SCMR 1773; Akhtar v. Khwas Khan 2024 SCMR 476; The State v. Ahmed Omar Sheikh 2021 SCMR 873; Mufti Kafayat Ullah v. The State 2020 SCMR 1248; Fazal Subhan v. The State 2019 SCMR 1027; Hayatullah v. The State 2018 SCMR 2092; Gul Muhammad v. The State 2011 SCMR 670 and Mst. Askar Jan v. Muhammad Daud 2010 SCMR 160). 16. In order for this provision to be validly invoked, the following essential elements must be satisfied: (i) The accused must be in lawful police custody in that particular case at the time of making the disclosure. A voluntary disclosure made outside the custodial context does not attract the operation of Article 40. (ii) The information must be specific and must distinctly relate to the fact discovered. Generalised or vague statements are not covered; the discovery must be directly traceable to the information furnished. (iii) There must be a tangible discovery of a material fact, such as the recovery of an object, article, weapon, or place, which was previously unknown to the investigating agency. (iv) There must be a clear causal link between the disclosure and the discovery. The fact must be discovered as a direct and immediate consequence of the information provided by the accused. (v) Only that portion of the statement which relates distinctly to the fact discovered is admissible. The remainder of the statement, including any confessional or incriminating parts not tied to the discovery, remains inadmissible. (vi) The recovery must be genuine, verifiable, and documented through credible and preferably independent witnesses. The authenticity of the discovery is not presumed and must be established through cogent evidence. (vii) The evidentiary value of the discovery must be assessed in conjunction with other corroborative evidence. A discovery alone, even if admissible, is insufficient to sustain conviction unless it fits into an unbroken chain of circumstances. 17. These principles form the doctrinal boundary of Article 40 QSO and serve to preserve the delicate balance between the probative force of custodial discoveries and the fundamental safeguards against compelled self-incrimination and misuse of police authority. Any departure from these safeguards would render the resultant discovery legally infirm and inadmissible for the purposes of conviction. 18. In view of above touchstone, we have analyzed the evidence with regard to…

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