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Petitioner: The State and others VS Respondent: Kashif Nouman alias Kashi and others
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Tariq Nadeem Title: The State and others vs Kashif Nouman alias Kashi and others Case No.:Murder Reference No.33 of 2021 , Criminal Appeal No. 526-J of 2021 ,
JUDGMENT
Reported As: 2023 LHC 7390, PLJ 2024 Cr.C. 638 Result: Murder Reference Answered in Negative Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J. Kashif Nouman alias Kashi son of Sarfraz Hussain and Mst. Nuzhat Rasheed widow of Naveed Iqbal (convicts) were tried by the learned Additional Sessions Judge, Multan in case F.I.R No. 973 of 2019 dated 07.12.2019 registered at Police Station Qutabpur, District Multan in respect of offences under sections 302 and 34 P.P.C. for committing the Qatl-i-Amd of Naveed Iqbal son of Muhammad Hanif (deceased). The learned trial court vide judgment dated 24.08.2021 convicted Kashif Nouman alias Kashi son of Sarfraz Hussain and Mst. Nuzhat Rasheed widow of Naveed Iqbal (convicts) and sentenced them as infra: Kashif Nouman alias Kashi son of Sarfraz Hussain:- Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Naveed Iqbal son of Muhammad Hanif(deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead. Mst. Nuzhat Rasheed widow of Naveed Iqbal :- Imprisonment for Life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Naveed Iqbal son of Muhammad Hanif(deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was however extended the benefit available under Section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court
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2. Feeling aggrieved, Kashif Nouman alias Kashi son of Sarfraz Hussain (convict) lodged the Criminal appeal No.526-J of 2021 through Jail against his conviction and sentence. Feeling aggrieved, Mst. Nuzhat Rasheed widow of Naveed Iqbal (convict) lodged the Criminal appeal No.527-J of 2021 through Jail against her conviction and sentence. The learned trial court submitted Murder Reference No.33 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Kashif Nouman alias Kashi son of Sarfraz Hussain. We intend to dispose of the Criminal Appeal No.526-J of 2021, the Criminal Appeal No.527-J of 2021 and Murder Reference No.33 of 2021 through this single judgment. 3. Precisely, the facts of the prosecution case as bought on record through the statements of various prosecution witnesses are that on 15.08.2019, Nasir Iqbal (PW-3), the complainant of the case, received information that his brother namely Naveed Iqbal (deceased) had died and after receiving the said information, Nasir Iqbal (PW-3) proceeded to the house of his brother where he found the dead body of the deceased present in the courtyard of the said house. Nasir Iqbal (PW- 3) thereafter submitted an application (Exh. PP) to the police seeking the post mortem examination of the dead body of the deceased. Upon the application (Exh. PP) of Nasir Iqbal (PW-3), Dr. Tariq Azhar (PW-8) conducted the post mortem examination of the dead body of the deceased namely Naveed Iqbal on 16.08.2019. Thereafter, Nasir Iqbal (PW-3) filed an application under sections 22-A and 22-B of the Code of Criminal Procedure, 1898 (Exh. DB) on 19.09.2019 complaining of the non- registration of the F.I.R . It was further stated by Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) that on 30.11.2019 at about 07.00 p.m. when both the witnesses were present in the house of Javed Iqbal (PW-4), both the appellants namely Kashif Noman alias Kashi and Mst. Nuzhat Rasheed came to the house of Javed Iqbal (PW-4) and confessed their guilt of having committed the Qatl-i-Amd of Naveed Iqbal (deceased). The written application (Exh.PC) was submitted for the registration of the F.I.R by Nasir Iqbal (PW-3) to Zafar Hussain, SI (PW-10) at Bilal Chowk on 07.12.2019 at 05.15 p.m. whereafter the formal F.I.R (Exh.PA) was recorded on the same day i.e 07.12.2019 at 05.40 p.m. It was further stated by Ahsan Zafar (PW-5) and Muhammad Shahbaz (PW-6) that on 08.12.2019, at about 11 a.m.-12.00 noon, the appellant namely Kashif Noman alias Kashi met the said witnesses and confessed his guilt of having committed the Qatl-i-Amd of Naveed Iqbal (deceased). The prosecution witnesses further stated that on 09.12.2019 the appellant namely Mst. Nuzhat Rasheed pointed out the place of occurrence to the Investigating Officer of the case and on 24.01.2020 the appellant namely Kashif Noman alias Kashi got recovered the pillow (P-3) and on 28.01.2020 got recovered the Subscriber Identity Module (SIM) ( P-4). 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 and the appellants namely Kashif Nouman alias Kashi son of Sarfraz Hussain and Mst. Nuzhat Rasheed widow of Naveed Iqbal were sent to face trial. The learned trial court framed the charge against the accused on 18.06.2020, to which the appellant pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got recorded statements of as many as ten witnesses. The prosecution witness namely Nasir Iqbal (PW-3) submitted the application (Exh.PP) on 15.08.2019 requesting the post mortem examination of the dead body and further stated that the appellants on 30.11.2019 at about 07.00 p.m confessed their guilt in his and in the presence of the prosecution witness namely Javed Iqbal (PW-4). The prosecution witnesses Ahsan Zafar (PW-5) and Muhammad Shahbaz (PW-6) stated that on 08.12.2019, at about 11 a.m.-12.00 noon the appellant namely Kashif Noman alias Kashi met the said witnesses and confessed his guilt of having committed the Qatl-i-Amd of Naveed Iqbal (deceased). Muhammad Jehanzeb Hayat 3380/HC (PW-1) stated that on 07.12.2019, he recorded the formal F.I.R (Exh.PA). Muhammad Akhtar 295/C (PW-2) stated that on 15.08.2019 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem
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examination of the dead body of the deceased. Irfan Hayat, draftsman (PW-7) prepared the scaled site plan (Exh.PG) of the place where the dead body was present and prepared the scaled site plan (Exh.PH) of the place where Naveed Iqbal (deceased) was murdered. Mushtaq Ahmad, SI (PW-9) stated that on 15.08.2019, he received the application (Exh. PP) of Nasir Iqbal (PW-3) and sent the dead body for its post mortem examination. Zafar Hussain, SI (PW-10) investigated the case from 07.12.2019 till 30.01.2020, arrested the appellant namely Mst. Nuzhat Rasheed on 09.12.2019, arrested the appellant namely Kashif Noman alias Kashi on 21.01.2020 and detailed the facts of his investigation in his statement before the learned trial court. 6. The prosecution also got Dr. Tariq Azhar (PW-8) examined, who on 16.08.2019 was posted as Senior Demonstrator Forensic Medicine Department Nishtar Medical University, Multan and on the same day conducted the postmortem examination of the dead body of Naveed Iqbal son of Muhammad Hanif (deceased ). Dr. Tariq Azhar (PW-8) on examining the dead body of the deceased namely Naveed Iqbal son of Muhammad Hanif, observed as under:- "Injuries: 1. Multiple abrasions each measuring 1 cm X1/4 cm four in number in an area of 5 X 3 cm on left side of neck. 2. Two abrasion on right temple 1 cm X 1/5 cm, 0.5 X 1/5 cm. 3. Abrasions 1 cm X1/4 cm on right mastoid area. 4. Abrasion 1 cm X1/4 cm on left ear Pinna. Both the eyes are red (congested). Final Opinion: On 20.11.2019, police submitted an application Exh.PK alongwith PFSA reports duly attested and signed by me. As per Forensic Toxicology report bearing No.2019-251759-TOX-14209 bearing Sr.No.0000652382 Exh.PL that drug/poison were not detected in liver and stomach contents in item #1, and as per Forensic Histopathology report bearing No.2019-251759-PATH-07288 bearing Sr.No.0000638483 Exh.PM that Histological examination of heart section reveals patent coronaries and unremarkable myocardium. The lungs section reveal focally presence of oedematous fluid inside a veoli. The liver renal and splenic section reveal no pathological changes. Keeping in view the autopsy findings and above mentioned laboratory reports, I opined that the death is because of asphyxia due to throttling and smothering. 7. On 29.09.2020 the learned Deputy District Public Prosecutor gave up prosecution witness namely Rashid Iqbal as being unnecessary. On 30.06.2021, the learned Deputy District Public Prosecutor closed the prosecution evidence. 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Kashif Nouman alias Kashi son of Sarfraz Hussain and Mst. Nuzhat Rasheed widow of Naveed Iqbal under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, the appellants replied that they were innocent and had been falsely involved in the case due to suspicion. The appellants namely Kashif Nouman alias Kashi son of Sarfraz Hussain and Mst. Nuzhat Rasheed widow of Naveed Iqbal opted not to get themselves examined under section 340(2) Cr.P.C and did not adduce any evidence in their defence. 9. On the conclusion of the trial, the learned trial court convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsels for the appellants precisely is that the whole case was fabricated and false. The learned counsels for the appellants further submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels for the appellants added that the statements of prosecution witnesses were not worthy of any reliance. The learned counsels for the
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appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsels for the appellants finally submitted that the prosecution had failed to prove the case against the appellants beyond the shadow of doubt. 11. On the other hand, the learned Additional Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond a shadow of a doubt by producing independent witnesses. The learned Additional Prosecutor General and the learned counsel for the complainant further argued that the deceased was murdered by the appellants who had confessed to the said crime before the witnesses. The learned Additional Prosecutor General and the learned counsel for the complainant further argued that the recoveries from the appellants also corroborated the statements of the other witnesses. The learned Additional Prosecutor General and the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Additional Prosecutor General and the learned counsel for the complainant prayed for the rejection of appeals as lodged by both the appellants. 12. We have heard the learned counsels for the appellants, the learned Additional Prosecutor General, the learned counsel for the complainant and carefully perused the record and evidence recorded during the trial. 13. After consideration of contentions raised by learned counsel for the respective parties and scanning 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 specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1938) 2 Lewin 227) where he said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting , to take for granted some fact consistent with its previous theories and necessary to render them complete." 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 published 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 3.- In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits . 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." The august Supreme Court of Pakistan in its binding judgment titled "Naveed Asghar and two others Vs. The State" (PLD 2021 Supreme Court 600) has enunciated the following principle of law for the appreciation of circumstantial evidence:
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"Approach to determine sufficiency of circumstantial evidence 14. The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion; however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course." 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. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. 14. From the evidence of the prosecution available on record it is clear that the case of the prosecution hinges upon the extra-judicial confession of the appellants, the recovery of the pillow (P-3), the Call Data Record (Exh.PT/1 and Exh.PT/2), the motive of the occurrence and the pointing out of the place of murder of the deceased. 15. Firstly, we shall deliberate upon the evidence of the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) who stated that on 30.11.2019 at about 07.00 p.m., when both the witnesses were present in the house of Javed Iqbal (PW-4), both the appellants namely Kashif Noman alias Kashi and Mst. Nuzhat Rasheed came to the house of Javed Iqbal (PW-4) and confessed their guilt of having committed the Qatl-i-Amd of Naveed Iqbal (deceased). The said statements of the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) are reflective that the appellants jointly confessed to their guilt. The prosecution witness namely Nasir Iqbal (PW-3) ,in his statement before the learned trial court, stated as under:- "On 30.11.2019, 1 alongwith Javed Iqbal and Rashid Iqbal was present at the house of Javed Iqbal at about 7:00 pm, meanwhile accused persons namely Mst.Nuzhat Rasheed and Kashif Nauman arrived there and told us that they committed murder of Naveed Iqbal deceased on 15.08.2019 by strangulation. They said that they were repenting on that murder and beg pardon from us. They also asked us not to proceed against them on that murder. " (emphasis supplied) The prosecution witness namely Javed Iqbal (PW-4), in his statement before the learned trial court ,stated as under:- " On 30.11.2019, I alongwith Nasir Iqbal and Rashid Iqbal was present at my house, meanwhile accused persons namely Mst.Nuzhat Rasheed and Kashif Nauman came there and told us that they committed murder of Naveed Iqbal deceased on 15.08.2019 by strangulation. They said that they were repenting on that murder and beg pardon from us." The alleged extra judicial confession, as already observed, was jointly made by the appellants before the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4). It was not mentioned by the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) as to
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which of the two appellants disclosed which fact, because both the appellants could not have uttered the same words. So, no reliance whatsoever can be placed upon the alleged joint extra judicial confession of the appellants , allegedly made before the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4), as the same was a joint extrajudicial confession which is neither a relevant nor an admissible piece of evidence. The august Supreme Court of Pakistan in the case of "Zafar Iqbal and others Vs. The State" (2006 SCMR 463) has held as under: "This Court in the case of the "State v. Kamal Khan alias Maloo and another" as referred (supra) has disbelieved extra-judicial confession made by the accused being a joint confession and maintained the acquittal of the accused. Similarly, B Shariat Appellate Bench of this Court in the case of Wazir Muhammad referred (supra) has also disbelieved the extra-judicial confession and has acquitted the accused on the ground that it was a weak type of evidence and requires strong corroboration. We have also gone through the case of Maqsood Ahmed referred (supra), whereby learned same Judge of the High Court has acquitted the accused giving him the benefit of doubt while disbelieving the joint extra-judicial confession and other similar circumstances. 12. Accordingly, we are of the opinion that prosecution has failed to prove the case against the appellants." The august Supreme Court of Pakistan in the case of "State Vs. KAMAL KHAN alias MALOO and another" (1993 SCMR 1378) has held as under: "Even otherwise too if the version of Ghulam Rasool (P.W.6) is accepted as correct, it was the case of a joint confession which could not be used against either of them. The learned Trial Court was therefore justified in not acting upon it." The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others Vs. The State" (2017 SCMR 898) has held as under: "The prosecution had also maintained that some of the appellants had made an extra-judicial confession but the High Court had itself discarded the evidence relating to the extra-judicial confession as the same was not only unnatural but was also inadmissible in evidence as the extra judicial confession attributed to the appellants was a joint confession." The august Supreme Court of Pakistan in the case of "Muhammad Bashir and another Vs. The State and others" (2023 SCMR 190) has held as under: '"The crux of the argument that there was a confessional statement on the part of all the co- accused is of no avail as the same was made jointly, which has no legal sanctity. 16. It is also a fact that on 30.11.2019, the prosecution witnesses were clueless regarding the circumstances of the death of the deceased and in that scenario there hardly existed any reason for the appellants to have confessed their guilt when they were not even facing any scrutiny or even suspicion with regard to the death of the deceased. We have also noted that the conduct of the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) that both the witnesses, though being the real brothers of the deceased, did not react at all to the said alleged confessional statements of appellants and calmly allowed the appellants to leave the house of the prosecution witness namely Javed Iqbal (PW-4) after hearing the alleged confession of the appellants, without making any effort to apprehend the appellants. The prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) have not mentioned in their statements that the accused had some weapon which could have precluded them from apprehending the appellants when they had heard the appellants confess to their guilt about the murder. The prosecution witness namely Javed Iqbal (PW-4) during cross-examination, admitted as under:- " At the same time we never arrested or caught hold Mst.Nuzhat or any other person and I told Mst. Nuzhat that she should go to police and make confession to the police. We did not say anything to Mst Nuzhat and allowed her to go and other person"
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The conduct of the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) was not natural at all. There is no explanation as to why the arrest of the appellants was not made by the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) after hearing of the alleged extra judicial confession by the appellants reflecting that indeed no such confession was ever made.. 17. Another reason to reject the statements of the prosecution witnesses namely Nasir Iqbal (PW-3) and Javed Iqbal (PW-4) that on 30.11.2019 at about 07.00 p.m., when both the witnesses were present in the house of Javed Iqbal (PW-4) , both the appellants namely Kashif Noman alias Kashi and Mst. Nuzhat Rasheed came to the house of Javed Iqbal (PW-4) and confessed their guilt of having committed the Qatl-i-Amd of Naveed Iqbal (deceased), is that they never reported the matter of the confession of the appellants on 30.11.2019 to the police and it was only on 07.12.2019 at 05.15 p.m that the prosecution witness namely Nasir Iqbal (PW-3) submitted the application (Exh.PC) to Zafar Hussain, SI (PW-10) at Bilal Chowk for the registration of the F.I.R and in which application the allegation of the appellants having confessed to their guilt on 30.11.2019 was mentioned. It has not been explained at all that why the matter of confession of the appellants was not reported immediately. The delay with which the application (Exh.PC) was submitted by Nasir Iqbal to Zafar Hussain, SI (PW-10) on 07.12.2019 is proof of the fact that the delay was used to fashion out and concoct a false narrative against the appellants. Reliance is placed on the case of "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:- "As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at…
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