PLJ 2022 Cr.C. 1
[Lahore High Court,
Multan Bench]
Present: Ali Zia Bajwa, J.
MUHAMMAD ZEESHAN etc.--Appellants
versus
STATE--Respondent
Crl. A. No. 93-J & Crl. Rev. No. 160 of 2016, heard on
24.9.2021.
Last seen evidence--
----Last
seen--It is settled law that evidence of last seen should be reported to police
immediately to rule out possibility of concoction.
[P.
8] D
2017
SCMR 2026.
Last seen evidence--
----This fact has made whole story
of last seen an afterthought of prosecution to craft evidence against appellant
in a case of no evidence--Last seen evidence is a very weak type of evidence
and great care is required while appreciating such evidence. [P.
9] E
PLD
2018 SC 813.
Confession--
----It is settled by now that such confession is always made
for a purpose and due to some motivating factors. [P. 10] G
2006 SCMR 231.
Extra-Judicial Confession--
----Evidence--It is settled law that evidence of extra-judicial
confession is to be taken and assessed with high degree of case as such
evidence is often received through enraged victims or their legal heirs and
overenthusiastic officers of law. [P.
12] I
Law of Evidence by
Chief Justice M. Monir Vol. I, 78th Edn.
At p. 429 ref.
Evidence--
----It is common practice in our
society that such type of evidence is concocted, usually when no direct
incriminating material is available to connect a suspected person with
commission of crime.
[P.
12] J
PLD 2019 SC 64.
Extra-Judicial Confession--
----Appreciation
of evidence--It is trite principle of appreciation of evidence that
extra-judicial confession can be taken as corroborative piece of evidence, if
it finds support from other of unimpeachable character but in present case,
when evidence of last seen, as discussed above, is not up to mark to be
believed, extra-judicial confession cannot be relied upon to convict appellant.
[P.
13] L
2016
SCMR 1144.
Circumstantial evidence--
----In cases
where prosecution wholly relies upon circumstantial evidence, it is bounden
duty of prosecution to provide all links of chain of circumstantial evidence,
so that one edge of chain should touch dead body, while other to neck of
accused to rule out all hypothesis of innocence of accused--Catena of judgments
of august Supreme Court of Pakistan has settled legal principle that, in cases
of circumstantial evidence, even if there is slightest doubt, it is more
desirable to discard such type of evidence than to rely upon it to convict an
accused for an offence of capital punishment.
[P.
13] M
2017 SCMR 2026.
“Admission”--
----Rule of “admission” of a fact, if
not cross-examined by opposite party, is applicable in civil cases only and
this concept is alien to criminal law. [P.
14] N
2018
SCMR 149.
Pakistan Penal Code, 1860 (XLV of
1860)--
----Ss. 302(b),
364-A & 376--Conviction and sentence--Challenge to--Qatl-i-amd--Benefit of
doubt--Evidence of last seen--Extra judicial confession--This is a case of
circumstantial evidence--In such like cases, usually prosecution tries to
concoct evidence, in order to prove its case against person, to whom
prosecution considers its real culprit and against whom no direct evidence is
available--Witnesses of last seen saw deceased, while she was taken away
towards Crop of Jowar, a deserted area, by appellant and they did not
inquire or stop appellant, being close relatives of deceased--It further does
not appeal to common sense that witnesses of last seen who were close relatives
of complainant and deceased were not aware of occurrence for good three
days--An unfortunate and brutal occurrence like one in question did not come to
knowledge of witnesses of last seen, who were admittedly not only close relatives
of complainant--It is plea of appellant that on day of occurrence, PW.7 and his
brother were not in village rather they were in Lahore at their work place and
same plea had been supported by prosecution’s own witness PW.10 who denied
presence of witnesses of last seen in village on fateful days--Next piece of
evidence relied upon by prosecution is alleged extra-judicial confession of appellant--There was no reason,
whatsoever, for appellant to admit his guilt before prosecution witnesses and prosecution
case becomes further cloudier in a situation, when accused did not choose to
surrender himself before those witnesses and allegedly ran away after admitting
his guilt--It does not attract to a prudent mind that if he was not going to
surrender and place himself at mercy of these witnesses, what induced him to
make such alleged extra-judicial confession to inculpate himself and then run
away--Held: When all aforementioned
facts are viewed collectively, same give rise to strong presumption that story
of extra-judicial confession has been concocted just to strengthen another
tainted piece of evidence i.e. evidence of last seen--Further held: It is settled law that
mere heinous or gruesome nature of crime shall not detract Court of law in any
manner from due course to judge and make appraisal of evidence in a laid down
manner and to extend benefit of reasonable doubt to an accused person being
indefeasible and inalienable right of an accused--Appeal was allowed.
[Pp.
6, 7, 10, 11, 13, 14 & 15] A, B, C, F, H, K & O
2019 SCMR 1994, 2011
SCMR 1233 and 2021 YLR Note 71.
Mr. Nadeem Ahmad Tarar
for Appellant.
Mr. Ansar Yasin,
Deputy Prosecutor General for State.
Miss Musarrat Parveen
Jabeen, Advocate (for Petitioner in Crl. Revision No. 160/2016).
Date of hearing: 24.9.2021.
Judgment
Through this single judgment, I
intend to decide above titled Criminal Appeal No. 93-J of 2016 filed by
Muhammad Zeeshan (hereinafter ‘appellant’) against his conviction and sentence
and Criminal Revision No. 160 of 2016 filed by Muhammad Tufail, complainant for
enhancement of sentence awarded to the appellant.
2. Through Criminal Appeal No. 93-J
of 2016, Muhammad Zeeshan appellant has challenged the conviction and sentence
awarded to him by the learned Additional Sessions Judge, Chichawatni (Sahiwal)
vide judgment dated 25.02.2016, in case FIR No. 273/2012 dated 22.07.2012 for
offences under Sections 302 and 376, PPC, registered with police station
Kassowal, Chichawatni, District Sahiwal, in the following terms:-
Ø
Under Section
302(b) PPC to undergo rigorous imprisonment for life, as Ta’zir. He is also
directed to pay an amount of Rs. 1,00,000/- (Rupees One Lac) to the legal heirs
of deceased as compensation under section 544-A, Cr.P.C. In case of default, he
will have to undergo further Six months S.I. The amount of compensation, should
be recovered as arrears of land revenue.
Ø
Under
Section 364-A, PPC to undergo rigorous imprisonment for life.
Ø
Under
Section 376, PPC to undergo 25 years rigorous imprisonment with fine of Rs.50,000/-
Ø
All the
sentences were ordered to run concurrently with benefit of Section 382-B,
Cr.P.C. also extended to the appellant.
3. According to the prosecution
version as furnished in the crime report, on 19.07.2012, Rao Saleem (PW.10)
informed the local police through his statement Ex.PE that, his niece namely
Laiba, daughter of Muhammad Tufail aged about 5 yesars went outside for playing
and last time she was seen on a water-course in the fields near her house but
thereafter, she did not return to her house. That, upon search by her father i.e.
complainant of the case along with the witnesses Rao Shakeel and Rao Abdul
Qadeer, her dead body was recovered from sorghum crop (Jowar). That, at
that time, there were marks on the neck of the deceased, her lips were bluish
and froth was coming out of her nose. Thereafter, on 22.07.2012, Muhammad
Tufail complainant (PW5) filed written application (Exh.PC), on the basis
whereof formal FIR (Ex.PB) was jotted down. Appellant was nominated by the
complainant through his supplementary statement on 23.07.2012.
4. Investigation of the case was
conducted by Muhammad Nawaz S.I. (PW.12) and after its completion, report under
Section 173, Cr.P.C. was prepared and submitted before the learned trial Court.
Trial was commenced by framing the charge against the appellant, to which he
pleaded not guilty and claimed trial. The prosecution in order to prove its
case against the appellant, produced as many as fifteen witnesses, before the
learned trial Court.
5. Muhammad Tufail (PW.5) is
complainant of the case, Muhammad Shakil (PW.6) is witness of extra-judicial
confession and Muhammad Kaleem (PW.7) is witness of last seen and
extra-judicial confession of appellant. Dr. Sadaf Khalid SWMO (PW.11) conducted
autopsy on the dead body of Laiba Bibi. Muhammad Nawaz S.I. (PW.12) is
investigating officer of the case. The remaining prosecution witnesses, more or
less, are formal in nature.
6. After completion of the
prosecution evidence, statement of the appellant as envisaged under Section 342,
Cr.P.C. was recorded by the learned trial Court. He professed innocence and
pleaded his false implication in the case. He did not opt to get his statement
recorded under Section 340(2) Cr.P.C. however, in his defense, he produced
Ghulam Muhammad as DW. 1 and Riaz as DW.2. He also produced documentary
evidence Ex.DA to Ex.DF and Mark A to Mark C to prove the absence of witnesses
of last seen evidence. Upon completion of the trial, learned trial Court found
the case against Muhammad Zeeshan appellant to have been proved beyond
reasonable doubt and, thus, convicted and sentenced him as mentioned and
detailed above, hence, this appeal and revision before this Court.
7. Arguments heard, record perused.
8. Perusal of record transpires
that no direct evidence of this unfortunate occurrence is available. Apart from
medical evidence, case of prosecution against the appellant, mainly hinges
upon:
(i) Evidence of last
seen; and
(ii) Extra judicial
confession
This
is a case of circumstantial evidence and a high degree of care is required to
appreciate the facts and evidence adduced by the prosecution. In such like
cases, usually prosecution tries to concoct the evidence, in order to prove its
case against the person, to whom prosecution considers its real culprit and
against whom no direct evidence is available.
9. I would like to take up the evidence of last seen first to
determine its sanctity and probative value. Evidence of last seen has been
provided by PW.7, Muhammad Kaleem. Allegedly, he along with his brother,
Muhammad Waseem saw the appellant while taking the deceased with him towards
sorghum crop (Jowar). Occurrence in this case took place on 19.07.2012
and crime was reported to police on 22.07.2012 with an extraordinary delay of
three days. It is astonishing that neither the fact of deceased being last seen
in the company of appellant was narrated in the crime report nor the names of
witnesses of last seen were mentioned therein. In complaint Exh.PC it was only
mentioned that two unknown persons took away the ill-fated deceased girl and
murdered her after rape. It is assertion of PW.7 that on 19.07.2012, when he
along with his brother Muhammad Waseem (since give-up) was going towards Bus
stand to go to their work- at Lahore, they saw the appellant taking the deceased
Laiba towards sorghum crop (Jowar). It is also his version that they
could not inform the .complainant about the fact timely after the occurrence as
they were in Lahore and they came to know about the occurrence on 22.07.2012,
when they contacted their mother on phone. Thereafter they came to the village
and told the complainant about the deceased Laiba Bibi last seen in the company
of the appellant, who was taking her towards sorghum crop (Jowar).
10.
It is not conceivable that witnesses of last seen saw the Laiba Bibi deceased,
while she was taken away towards Crop of Jowar, a deserted area, by the
appellant and they did not inquire or stop the appellant, being close relatives
of deceased. It further does not appeal to common sense that witnesses of last
seen who were close relatives of complainant and deceased were not aware of the
occurrence for good three days. It is not believable that an unfortunate and
brutal occurrence like the one in question did not come to knowledge of
witnesses of last seen, who were admittedly not only close relatives of
complainant but were also in touch with their mother, resident of same village,
through phone. Furthermore, it does not attract to a prudent mind that being
real paternal cousins of Laiba Bibi deceased, they could not come to know about
her death, that too in today’s world, when a lot of communication means are
available, no sane mind will accept this justification, PW.7 Muhammad Kaleem
admitted in his cross-examination as infra:
“I did not tell my mother that I had seen Laiba Bibi with Zeeshan on
19-07-2012 in the Jawar crop of Mubarak AH. I had not told the above said fact
to the complainant or any my relative through telephone from Lahore. My mother
told me that an unknown person had committed murder of Mst. Laiba Bibi. I did
not tell about Zesshan accused.”
It is further important to mention the
statement of witnesses regarding their arrival and informing the complainant
about the occurrence, are at variance. As per the statement of Muhammad Kaleem
P.W.7, they reached in the village on 23.07.2012 at about 02/03 a.m. and told
the above stated fact to complainant in the morning of 23.07.2012 at about
08:00 a.m, whereas, according to complainant, these witnesses reached in the
village at night of 22.07.2012 and told him qua the last seen fact. Both PW.7
and complainant stated that they informed the local police about the last seen
details in the morning of 23.07.2012 but Muhammad Shakeel P.W.6 stated that
Munammad Kaleem PW.7 and Muhammad Waseem came to the village on 23.07.2012 at
05:00 p.m. and thereafter, they informed the complainant about the fact of
deceased last seen in company of appellant. So, it emerges from the record that
there are three versions of prosecution witnesses about the arrival of witnesses
of last seen and informing this fact to the complainant and then police. It is
admitted by all the witnesses that on 23.07.2012, police came to the village
only once. As per the version of complainant and PW.7, police came to the
village early in the morning and they informed the police about the factum of
last seen, whereas according to the version of PW.6, police came at about
3:00/4:00 p.m. and remained there for about one and half hour.
11.
Further, perusal of the record establishes that right from the inception, it is
plea of the appellant that on the day of occurrence, PW.7 and his brother were
not in village rather they were in Lahore at their work place and same plea had
been supported by prosecution’s own witness PW.10 namely Rao Muhammad Saleem
who denied the presence of witnesses of last seen in village on the fateful day
as under:
“On 19-07-2012, on the day of occurrence, both Waseem and Kaleem were
working in the above said factory. It is correct that on 19.07.2012 Waseem and
Kaleem were not present in the Chak as they were present in Lahore”
It was incumbent upon the prosecution
to prove the presence of witnesses of last seen in village at the relevant time
and thereafter their departure for Lahore to their work place on 19.07.2012. Nothing
plausible was brought on the record to prove beyond reasonable doubt that
deceased was last seen in the company of deceased by the prosecution witnesses
and thereafter they left for their job in Lahore. Another dent to prosecution
story is the delay in reporting the matter to the police. It is settled law
that evidence of last seen should be reported to the police immediately to rule
out the possibility of concoction. In this regard I am fortified from the view
of august Supreme Court of Pakistan in Fayyaz Ahmad’s Case,[1]
where august Court had enlisted the points to be considered while relying upon
the evidence of last seen. Relevant paragraph is reproduced here:
“7.
The last seen evidence is one of such categories of evidence. In this category
of cases some fundamental principles must be followed and the Prosecution is
under-legal obligation to fulfill the same, some of which may be cited below:
(i) There must be
cogent reasons that the deceased in normal and ordinary course was supposed to
accompany the accused and those reasons must be palpable and prima facie
furnished by the Prosecution.
(ii) The proximity
of the crime seen 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.
(iii) The timing of
that the deceased was last seen with the accused and subsequently his murder,
must be reasonably close to each other to exclude any possibility of the
deceased getting away from the accused or the accused getting away from him.
(iv) There must be some reasons and objects on account of which the
deceased accompanied the accused for accomplishment of the same towards a
particular destination, otherwise giving company by the deceased to the accused
would become a question mark.
(v) Additionally
there must be some motive on the part of the accused to kill the deceased
otherwise the Prosecution has to furnish evidence that it was during the
transit that something happened abnormal or unpleasant which motivated the
accused in killing the deceased.
(vi) The
quick reporting of the matter without any undue delay is essential, otherwise
the prosecution story would become doubtful for the reason that the story of
last seen was tailored or designed falsely, involving accused person. (emphasis
supplied)
Beside the
above, circumstantial evidence of last seen must be corroborated by independent
evidence, coming from unimpeachable source because uncorroborated last seen
evidence is a weak type of evidence in cases involving capital punishment.
(vii) The recovery of the crime weapon from the accused and the opinion
of the expert must be carried out in a transparent and fair manner to exclude
all possible doubts, which may arise if it is not done in a proper and fair
manner.
(viii) The Court has
also to seriously consider that whether the deceased was having any
contributory role in the cause of his death inviting the trouble, if it was not
a pre-planned and calculated murder.”
12.
Complainant has stated that PW-7 informed him regarding last seen fact at the
night of 22.07.2012 but admittedly complainant did not make any effort to bring
this fact into the knowledge of local police because as per his own version, he
along with PW.7, informed the police on next day, when police visited his
village. This conduct of complainant is against the natural human behavior that
a person would not informed the police about the suspected culprit of rape and
murder of his daughter and wait for the police to come to his village to bring
this fact into their knowledge. This fact has made the whole story of last seen
an afterthought of prosecution to craft evidence against the appellant in a
case of no evidence. Last seen evidence is a very weak type of evidence and
great care is required while appreciating such evidence as was held by august
Supreme Court of Pakistan in Muhammad Abid’s Case[2]
that:
“5. ...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.”
13. All these facts, when taken
together and analyzed as per the principles evolved by the Constitutional
Courts for appraisal of such evidence, lead to the inference that prosecution
story regarding last seen evidence is not free from doubts and same is not
worth reliance.
14.
Next piece of evidence relied upon by the prosecution is alleged extra-judicial
confession of appellant. Extra-judicial confession has been explained by
Hon’ble Chief Justice M. Monir in his acclaimed book on Law of Evidence,[3]
as under:
“Extra-Judicial
confessions are those which are made by the party elsewhere than before a
magistrate or Court. Extra-judicial confessions are generally those that are
made by a party to or before a private individual which includes a Magistrate
who is not especially empowered to record confessions under section 164 of the
Code of Criminal Procedure or a Magistrate so empowered but receiving the
confession at a stage when section 164, Cr.P.C. does not apply.”
After
going through the statements of prosecution witnesses, I am constrained to hold
that credibility of prosecution version qua alleged extra-judicial confession
is at par with that of last seen evidence i.e. not up to the mark to be
relied upon. It is version of the complainant PW.6 and PW.7 Muhammad Kaleem
that when PW.7 informed the complainant about the deceased last seen in the
company of appellant, they went to the house of appellant’s paternal uncle
(TAYA) and appellant was summoned there and he confessed his guilt before the
complainant and PWs. Prosecution witnesses did not utter a single word to
explain what did compel the appellant to make alleged extra-judicial
confession. This piece of evidence is cryptic because it is wholly unlikely
that the appellant would chose to clean his breast before complainant and his
witnesses, when neither there was any moral compulsion on the appellant nor any
apology was sought by him from the complainant side. It is settled by now that
such confession is always made for a purpose and due to some motivating
factors. This aspect was well expounded by the august Court in Sajid
Mumtaz’s case[4]
in the following words:
“19. It
is but a natural curiosity to ask as to why a person of sane mind should at all
confess. No doubt the phenomenon of confession is not altogether unknown but
being a human conduct, it had to be visualized, appreciated and consequented
upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing
capital punishment should at all confess. There could be a few motivating
factors like: (i) to boast off, (ii) to ventilate the suffocating consciende
and (iii) to seek help when actually trapped by investigation. Boasting off is
very rare in such-like heinous offences where fear dominates and is always done
before an extreme confident as well as the one who shares close secrets. To
make confession in order to give vent to ones pressure on mind and conscience
is another aspect of the same psyche. One gives vent to ones feelings and one
removes catharses only before a strong and close confident. In the instant case
the position of the witnesses before whom extra-judicial confession is made is
such that they are neither the close confident of the accused nor in any manner
said to be sharing any habit or association with the accused. Both the
possibilities of boasting and ventilating in the circumstances are excluded
from consideration.
21.
Another most important and natural purpose of making extra-judicial confession is
to seek help from a third person. Help is sought firstly, when a person is
sufficiently trapped and secondly, from one who is authoritative, socially or
officially... “
15.
There was no reason, whatsoever, for the appellant to admit his guilt before prosecution
witnesses and prosecution case becomes further cloudier in a situation, when
accused did not choose to surrender himself before those witnesses and
allegedly ran away after admitting his guilt. It does not attract to a prudent
mind that if he was not going to surrender and place himself at the mercy of
these witnesses, what induced him to make such alleged extra-judicial
confession to inculpate himself and then run away. In this regard guidance is
sought from the decision of august Supreme Court of Pakistan in Wajeeh-ul-Hassan’s[5]
case where it was held by august Court that:
“Evidence of extrajudicial confession, universally regarded as
inherently weak, does not present a brighter picture either; why the appellant
would make his breast clean to embrace formidable consequences by abandoning
his safe anonymity, in the absence of any incriminatory evidence thenceforth,
is really mind boggling.”
Same view was taken by august Court in Hamid
Nadeem’s case[6]
by holding that:
“The available record contains no reason why the appellant (and his
co-accused) opted, on the third day of occurrence, to make extra judicial
confession about such heinous offences when they were neither nominated in the
F.I.R. nor even suspected.”
It
is settled law that evidence of extra-judicial confession is to be taken and
assessed with high degree of case as such evidence is often received through
enraged victims or their legal heirs and overenthusiastic officers of the law
as has stated by Chief Justice M. Monir,
is his book on Law of Evidence[7] as under:
“Evidence of oral confessions of guilt ought to be received with great
caution. Not only does considerable danger of mistakes arise from the
misapprehension or malice of witnesses, the misuse of words, the failure of the
party to express his own meaning and infirmity of memory, but the zeal which
generally prevails to detect offenders, especially in cases of aggravated
guilt, and the strong disposition which is often displayed by persons engaged
in pursuit of evidence to magnify slight grounds of suspicion into sufficient
proof-together with the character of the witnesses, who are sometimes
necessarily called in cases of secret and atrocious crime-all tend to impair
the value of this kind of evidence, and sometimes lead to its rejection, where
in civil actions, it would have been received.”
Unfortunately,
it is common practice in our society that such type of evidence is concocted,
usually when no direct incriminating material is available to connect a
suspected person with the commission of crime. That is why the august Supreme
Court of Pakistan, in Mst. Asia Bibi’s
case,[8]
has considered its value almost equal to naught, by holding
that:
“42. ...this Court has repeatedly held that
evidence of extra-judicial confession is a fragile piece of evidence and utmost
care and caution has to be exercised in placing reliance on such a confession.
It is always looked at with doubt and suspicion due to the ease with which it
may be concocted. The legal worth of the extra judicial confession is almost
equal to naught, keeping in view the natural course of events, human behaviour,
conduct and probabilities, in ordinary course. It could be taken as
corroborative of the charge if it, in the first instance, rings true and then
finds support from other evidence of unimpeachable character. If the other
evidence lacks such attribute, it has to be excluded from consideration.”
16.
The epitome of above discussion is that, when all aforementioned facts are
viewed collectively, same give rise to strong presumption that story of
extra-judicial confession has been concocted just to strengthen another tainted
piece of evidence i.e. evidence of last seen. It is trite principle of
appreciation of evidence that extra-judicial confession can be taken as
corroborative piece of evidence, if it finds support from other evidence of
unimpeachable character but in the present case, when evidence of last seen, as
discussed above, is not up to the mark to be believed, extra-judicial
confession cannot be relied upon to convict the appellant. Reliance can be
placed upon the decision of august Supreme Court of Pakistan in Nasir Javaid and another’s case,[9]
wherein, august Court has held that:
“11.
...Evidence of this type because of its being concocted easily is always looked
at with doubt and suspicion. It could be taken as corroborative of the charge
if it, in the first instance, rings true and then finds support from other
evidence of unimpeachable character. If the other evidence lacks such
attribute, it has to be excluded from consideration...”
In
cases where prosecution wholly relies upon circumstantial evidence, it is
bounden duty of prosecution to provide all links of chain of circumstantial
evidence, so that one edge of the chain should touch the dead body, while the
other to the neck of the accused to rule out all the hypothesis of innocence of
accused. Catena of judgments of august Supreme Court of Pakistan has settled
the legal principle that, in cases of circumstantial evidence, even if there is
slightest doubt, it is more desirable to discard such type of evidence than to
rely upon it to convict an accused for an offence of capital punishment. In
this regard, I am fortified from the view of august Supreme Court of Pakistan
in Fayyaz Ahmad’s case,[10]
wherein it was specifically held by august Court that:
“5. ... To carry conviction on a capital charge it is essential that
Courts have to deeply scrutinize the circumstantial evidence because
fabricating of such evidence is not uncommon as we have noticed in some cases thus,
very minute and narrow examination of the same is necessary to secure the ends
of justice and that the Prosecution has to establish the case beyond all
reasonable doubts, resting on circumstantial evidence. “Reasonable Doubt” does
not mean any doubt but it must be accompanied by such reasons, sufficient to
persuade a judicial mind for placing reliance on it. If it is short of such
standard, it is better to discard the same so that an innocent person might not
be sent to gallows, To draw an inference of guilt from such evidence, the Court
has to apply its judicial mind with deep thought and with extra care and
caution and whenever there are one or some indications, showing the design of
the Prosecution of manufacturing and preparation of a case, the Courts have to
show reluctance to believe it unless it is judicially satisfied about the guilt
of accused person and the required chain is made out without any missing link,
otherwise at random reliance on such evidence would result in failure of
justice.”
17.
Last but not the least, it has been vehemently argued by the learned DDPP duly
assisted by counsel for the complainant that appellant had not cross-examined
the witnesses to the extent of extra-judicial confessions, hence statements of
PWs to this extent will be considered as admitted correct being not denied by
the appellant. Likewise, learned trial Court has also observed that appellant
had not put any suggestion to PWs that appellant had not made extra-judicial
confession. I am afraid this contention of learned DDPP and observation made by
learned trial Court, are without any force because it is settled principle of
law that rule of “admission” of a fact, if not cross-examined by opposite
party, is applicable in civil cases only and this concept is alien to the
criminal law as was decided by august Supreme Court of Pakistan in Nadeem Ramzan’s case[11]
that:
“4. ... a fact would be deem to be proved if the witness stating such
fact had not been cross-examined regarding the same was a principle applicable
to civil cases and not to criminal cases ...”
18.
Gamut of what has been discussed above, leads this Court to the inescapable
conclusion that prosecution has failed to prove its case against the appellant
beyond shadow of doubt and learned trial Court was not justified to convict and
pass sentence upon the appellant. It is settled law that mere heinous or
gruesome nature of
