PLJ 2022 Cr.C. 620
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
ALLAH RAKHA--Appellant
versus
STATE and another--Respondents
Crl. A. No. 445 of
2013, decided on 5.10.2021.
Pakistan Penal Code, 1860 (XLV
of 1860)--
----Ss.
302/148/149--Qatl-i-amd--Circumstantial evidence--Acquittal of--Some of the
foreign jurisdictions, on the question of circumstantial evidence and
principles thereon--Courts have to be very careful and critical while
appreciating the circumstantial evidence--Accused while appearing before PW’s
made confession that they committed the murder--But during trial, both these
witnesses were not produced and given up by the prosecution on the reason that
they were won over by the accused--Complainant came to know about the incident
of previous night, again the challenge shall remain that why the police was not
informed immediately--Prosecution cannot come out of another test that why,
immediately after the recovery of dead body from same gutter where they had
seen the accused, they did not disclose it to complainant--Serious
contradictions about the meeting of appellant with the witnesses, information
to police and arrival of the investigating officer at crime scene are serious
in nature hence cannot be overlooked--The post-mortem examination of deceased
was conducted and was delayed--The accused shall be entitled for benefit of
doubt, not as a matter of grace but as a matter of right--Acquit--Appeal
allowed.
[Pp.
628, 629, 630, 631, 632 & 633] C, D, E, F, G, H & I
2012 SCMR 327; 2017 SCMR
724; 2011 SCMR 941 ref.
Circumstantial evidence--
----Circumstantial evidence--Alqar’in--Alqar’in
is the plural of Alqariinah--Alqariinah which literally means connection,
conjunction relation, presumption, inference or indication--In the language of
the law, the word “Alqariinah” refers to something which surrounds an event and
serves as a sign for the existence or non existence of something--Thus,
circumstantial evidence and “Alqariinah” are both synonymous and refer to
circumstances surrounding an event from which an inference can be drawn for
existence or non existence of the issue under investigation--Circumstantial
evidence, what the principles are till now settled by the apex Court. [Pp. 624 & 626] A & B
PLD 2021 SC 600; PLD
1986 SC 690; 2017 SCMR 986;
2017 SCMR 2026; 1969 SCMR 388; PLD 1970 SC 56; 1972 SCMR 15; 2011 SCMR 1127;
2015 SCMR 155 ref.
Appellant in person.
Nemo for Complainant.
Mr. Muhammad Laeeq-ur-Rehman, Assistant
District Public Prosecutor for State.
Date of hearing: 5.10.2021.
Judgment
Mohammad Riaz/Respondent No. 2 (complainant/PW-1)
by filing the private complaint, on 04.01.2011, against Allah Rakkha (appellant),
Khuda Bakhsh, Ghulam Shabbir, Allah Bakhsh, Muhammad Bakhsh and Ali Mohammad
maintained that he was the resident of Chak[1]
No. 166/10-R Sialan Wala; Ahmad Khan alias Baggu (deceased)
was his real brother; Rajjad (PW-2)/his brother-in-law (Behnoi)
was also residing in the same Chak; Ahmad Khan used to have dinner at the house
of Rajjad; at about 09:00 pm in between 24/25.07.2010, Rajjad (PW-2)
and Khuda Bakhsh (PW-3) came to Ahmad Khan at his ‘Ahata’[2]
and offered him the food; at that occasion all accused (except Ghulam
Shabbir who was involved later on) were sitting there and they were
extending threats to kill Ahmad Khan alias Baggu for the reason that he
was having illicit relations with relative of accused; Ahmad Khan refuted the
allegations where after, all the accused left his house; Ahmad Khan, then, went
to the house of Rajjad for having dinner and ultimately returned to his home;
on the following morning Ahmad Khan was not found present at his ‘Ahata’
and at that occasion Rajjad told him/complainant about previous night’s
incident; they had been searching Ahmad Khan till late night; it was
26.07.2010, at about 07:00 am, when they were in search of Ahmad Khan, they met
Allah Rakkha and when they inquired from him, he/Allah Rakkha started running
but he was apprehended by them; Allah Rakkha (appellant)
disclosed that they were having suspicion that Ahmad Khan was maintaining
illicit relations with Rani Mai, their close relative, so he along with other
accused after committing his murder had thrown the dead body in gutter near the
‘Ahata’; Allah Rakkha led to that gutter and dead body of Ahmad Khan was
found there inside; Allah Rakkha getting a chance was succeeded to escape.
Complainant further stated that he got registered FIR No. 323, on 26.07.2010,
at Police Station Sadar Khanewal under Sections 302/148/149, PPC and as the
Investigating Officer did not record the statements of witnesses showing
connivance with accused, so it compelled him/complainant to file the private
complaint.
2. After recording cursory evidence,
processes were issued against appellant and his co-accused, who on 09.06.2012
were charged under Sections 302/148/149, PPC for which they pleaded not guilty
and demanded their trial.
3. In order to prove its’ case,
Muhammad Riaz/complainant came in witness box as PW-1 and he
produced Rajjad (PW-2), Khuda Bakhsh (PW-3), Raja
Ghulam Farid/draftsman (PW-4), Muhammad Zaheer Ahmad ASI/Moharrar
(PW-5), Muhammad Riaz (PW-6), Sajid Ameen (PW-7),
Naveed Abbas Constable (PW-8), Muhammad Anwar ASI/author of FIR (PW-9)
and Zafar Iqbal Constable (PW-10). The learned trial Court also
examined Muhammad Zafar SI/IO (CW-1) and Dr. Javed Iqbal (CW-2).
4. In his examination made under
Section 342, Cr.P.C., version of appellant was that case against him was based
on concoction; witnesses had deposed falsely; he had purchased ‘Ahata’
from complainant, who wanted to take it back, so a false case was managed.
Appellant opted not to produce defence evidence or to appear in terms of
Section 342, Cr.P.C.
5. Appellant is unable to produce
his learned advocate. As this appeal pertains to the year 2013, so with the
valuable assistance of learned ADPP, I proceed to decide it on the basis of
available record.
6. Learned ADPP, while opposing
this appeal maintains that although it is a case of circumstantial evidence,
but as every piece has been successfully linked with each other, therefore the
allegations leveled against appellant were rightly believed by the learned
trial Court; the recovery of dead body at the instance of appellant is a strong
piece of evidence, which alone is sufficient to sustain the conviction. He
finally argued that there is no occasion for this Court to interfere in a
well-reasoned judgment.
7. HEARD
8. Prosecution’s case is based upon
circumstantial evidence. Universally, worth and value of circumstantial
evidence always remained an important subject. So, what the circumstantial
evidence is, that is to be understood first and then to see the principles
governing on this topic. It is defined[3]
as under: -
i. Evidence
of facts or circumstances from which the existence or non-existence of fact in
issue may be inferred.
ii. The
proof of various facts or circumstances which usually attend the main fact in
dispute, and therefore tend to prove its existence.
iii. As a series of circumstances leading to the inference or
conclusion of guilt, when direct evidence is not available.
iv. It falls short of
directly establishing a fact in issue, but which is admissible by reason of its
relevance to the fact in issue.
v. A
particular set of circumstances may lead to the appropriate inference being
drawn.
vi. A
theory, supported by a significant quantity of corroborating evidence.
vii. It simply means that when there is no direct evidence of a
problem, it's a good idea to look around for any other evidence that might be
useful.
9. Differentiating the direct and
circumstantial evidence according to David Ellison:[4]
“Sometimes it is easier to understand the
difference with an example. If your brother comes to you and says he saw it
snow today, then there is direct evidence that it was snowing. If your brother
told you that he woke up and saw snow on the ground, then there is
circumstantial evidence that it snowed. He did not see it snow, but it is a
reasonable inference that if there is snow on the ground, it must have snowed”[5]
10.
Dr. Sowed Juma Mayanja,[6]
while making comparative analysis of the Common Law and Islamic Law Systems
with regard to circumstantial evidence and its admissibility in criminal
proceedings, writes that under the Islamic law, circumstantial evidence refers
to admissibility of ‘Alqara’in’ that is plural of ‘Alqariinah’,
which literally means connection, conjunction, relation, presumption, inference
or indication. According to him in the language of the law, the word ‘Alqariinah’
refers to something which surrounds an event and serves as a sign for
the existence or non-existence of something. Thus, circumstantial evidence and ‘Alqariinah’
are both synonymous and refer to circumstances surrounding an event
from which an inference can be drawn for existence or non-existence of the
issue under investigation. The basis of admissibility of circumstantial
evidence under Islamic law is found in both the Qur’an and the Sunnah of the
Prophet (SAW). He also referred the verses of Holy Quran from “Surat
Yusuf” as under:
“They said: ‘Our
father, we went racing with one another and left Yusuf by our belongings and a
wolf devoured him, but you will never believe us even if we speak the truth’.
And they brought his shirt stained with false blood. He said: ‘Nay, but your
own selves have made up a tale.”
11. Elaborating the above verses in the light of circumstantial
evidence Dr. Juma further writes that:
“These verses are
about the story of Prophet Yusuf and his brothers who threw him into a well
because of being the most beloved son to their father. After throwing him into
the well, they came back in the evening weeping. They told their father that
they had left Yusuf guarding their belongings and went racing with one another.
As they were away, a wolf came and devoured Yusuf. They brought his shirt
stained with false blood to convince their father that the blood was a result
of the wolf devouring Yusuf. Their father based on circumstantial evidence to
disprove their tale as he looked at Yusuf’s un-torn shirt and said “When did
the wolf become so intelligent so as to remove Yusuf’s shirt un-torn before
devouring him?” that is why he said, “Nay but your own selves have made up a
tale”.
12. Quoting further Surat Yusuf, he wrote that:
“Yusuf and the
woman raced towards the door one behind the other and she tore his shirt from
behind. In the process they met her husband at the door. On seeing him she
cried out, ‘what punishment does one deserve who shows evil intentions towards
your wife? What else than he should be put in prison or tortured with painful
torment’. Yusuf said, “It was she that seduced me”. At this moment, a witness
of her own folk testified saying, “if his shirt is torn from the front, then
her tale is true and he is a liar, but if his shirt is torn from the back then
she has told a lie and he is speaking the truth”. When her husband saw Yusuf’s
shirt torn at the back, he said: “Surely it is a plot of you woman, certainly
mighty is your plot”.
13. The above verses are about the
story of ‘Prophet Yusuf’ and his master’s wife. The woman after closing all the
doors of the house, tried to seduce Yusuf into evil. Prophet Yusuf instead
refused and rushed to open the door. The woman decided to race with him and
pulled him from behind. In the process she tore his shirt from behind. As they
reached the door, they found Yusuf’s master. The woman tried to accuse Yusuf of
trying to do evil to her, but Yusuf defended himself by counter accusing her
that she was the one who was trying to seduce him. As neither of the two had
evidence to support his/her claim, a person from among her own folk adduced
circumstantial evidence to prove the fact in issue. He said that look at his
shirt, if it be that it is torn from the front, then that would be enough
evidence for her that Yusuf was trying to do evil to her and as she was trying
to defend herself she tore his shirt from the front. But if it be that his
shirt is torn from the back, then that would be enough proof for Yusuf that as
he was trying to escape from evil, she tried to pull him from behind and as a
result his shirt got torn from the back. The master relied on circumstantial
evidence of the shirt being torn from the back, to prove that the woman was
telling lies, and that is why he said: ‘Surely it is a plot of you women,
certainly mighty is your plot’.
14.
Reverting my discussion that on circumstantial evidence, what the principles
are till now settled by the apex Court, the formulation thereof is as under:[7]
i. Circumstantial evidence may sometimes be conclusive, but it
must always be narrowly examined.
ii. Circumstances should be ascertained with minute care and
caution, before any conclusion or inference adverse to the accused is drawn.
iii. The process of inference and deduction involved in such cases
is of a delicate and perplexing character, liable to numerous causes of
fallacy.
iv. This danger points need for great caution in accepting proof of
the facts and circumstances, before they are held to be established for the
purpose of drawing inferences there from.
v. A mere concurrence of circumstances, some or all of which are
supported by defective or inadequate evidence, can create a specious
appearance, leading to fallacious inferences.
vi. It is necessary that only such circumstances should be accepted
as the basis of inferences that are, on careful examination of the evidence,
found to be well-established.
vii. A high quality
of evidence is, therefore, required to prove the facts and circumstances from
which the inference of the guilt of the accused person is to be drawn.
viii. There are
chances of fabricating evidence in cases that are based solely on
circumstantial evidence; therefore, the Court, in such cases, should take extra
care and caution to examine the evidence with pure judicial approach on strict
legal standards to satisfy itself about its proof, probative value and
reliability.
ix. When there are
apparent indications of possibility of fabricating evidence by the
investigating officer in making the case, the Court must be watchful against
the trap, which may misled to drawing a false inference, and satisfy itself
about the fair and genuine collection of such evidence. The failure of the Court
to observe such care and caution can adversely affect the proper and safe
administration of criminal justice.
x. The settled
approach to deal with the question as to sufficiency of circumstantial evidence
for conviction of the accused is this: If, on the facts and circumstances
proved, no hypothesis consistent with the innocence of accused can be
suggested, the case is fit for conviction on such conclusion; however, if such
facts and circumstances can be reconciled with any reasonable hypothesis
compatible with the innocence of the accused the case is to be treated one of
insufficient evidence, resulting in acquittal of the accused.
xi. 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.
xii. 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.
xiii. Chain of such
facts and circumstances has to be completed to establish guilt of the accused
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 and in that event, conviction
cannot be safely recorded, especially on a capital charge.
xiv. 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.
15.
Further study from some of the foreign jurisdictions, on the question of
circumstantial evidence and principles thereon, is as under:-
AUSTRALIA[8]
i. Circumstantial evidence is very often the best.
ii. In order to convict, the only rational conclusion to be drawn
from the circumstances is the guilt of accused.
iii. It is essential that the circumstances should to a moral
certainty actually exclude every hypothesis but the one proposed to be proved.
iv. Circumstantial evidence is to be considered as a chain, and
each piece of evidence is a link in the chain, but that is not so, for then, if
any one link breaks, the chain would fail.
v. Any case of such kind has to be dealt with in the shadow of
two contrasted forensic metaphors. The first is the “links in a chain”
metaphor. The second is the ‘strands in a cable’ metaphor.
UNITED KINGDOM[9]
i. One strand of a cord might be insufficient to sustain the
weight, but three stranded together may be quite sufficient of strength.
ii. There may be a combination of circumstances no one of which
would raise a reasonable conviction, or more than a mere suspicion; but the
whole, taken together, may create a strong conclusion of guilty, that is, with
as much certainty as human affairs can require or admit.
iii. Circumstantial evidence must always be narrowly examined.
CANADA[10]
i. Circumstantial
evidence, assessed in the light of human experience, should be such that it
excludes any other reasonable alternative.
ii. Any
inferences based on circumstantial evidence must be reasonable, and not
speculative. The danger is that speculative inferences can cause a Trier of
fact to make a leap of logic, unsupported by the evidence.
INDIA[11]
i. The inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with the
innocence of the accused.
ii. The circumstances have to be proved beyond reasonable doubt
and have to be shown to be closely connected with the principal fact sought to
be inferred from those circumstances.
iii. The cumulative effect of the circumstances must be such as to
negative the innocence of the accused and bring the offences home beyond any
reasonable doubt.
iv. All the circumstances should be complete and there should be no
gap left in the chain of evidence.
v. The circumstances, from which an inference of guilt is sought
to be drawn, must be cogently and firmly established.
vi. Circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused.
16.
Even in other jurisdictions the principles are almost the same. So taking into
consideration, what has been referred above, it can be safely concluded and
compiled that the Courts have to be very careful and critical while
appreciating the circumstantial evidence. This exercise being delicate needs
great care and caution. The reference made earlier, in particular under the
Islamic perspective, shows that even the evidence of best persons (sons of
Prophet Yaqoob) on the touch stone of appreciation of evidence was seen with
doubt on first presentation. The evidence of the wife of master of Prophet
Yusuf, who was the strong in all respect and when no one was there to see the
incident, when examined by applying the wisdom, was declared false.
17. In the light of above principles, now I proceed to examine
and appreciate the prosecution’s evidence produced in support of its’ case.
18.
It was the case of prosecution, that all accused while appearing before
Muhammad Ramzan and Altaf Hussain made confession that they committed the
murder of Ahmad Khan alias Baggu. But during trial, both these witnesses
were not produced and given up by the prosecution on the reason that they were
won over by the accused. On this score alone it is not difficult to hold that
the chain is broken, and its’ destruction is in totality.
19.
It was claimed by Muhammad Riaz/complainant (PW-1) that all
accused (except Ghulam Shabbir), on 24.07.2010, came to the house
of Ahmad Khan (deceased) and in clear words threatened to kill
him because of his illicit relations with some of their relatives. At that
occasion Rajjad (PW-2) and Khuda Bakhsh (PW-3) were
also sitting there. This story on the face of it appears to be unnatural and
doubtful that in presence of two witnesses, the accused having no fear at all
came and extended the threats to take the life of Ahmad Khan. For the sake of
arguments, if this narrative is believed, the question is still there that why
not the matter was reported to police then and there and similarly, why
Muhammad Riaz/complainant was not taken into confidence as according to
complainant, he was told in this regard by Rajjad etc. in the following
morning, when Ahmad Khan was found missing? For a moment, if it is also
acknowledged that in the morning complainant came to know about the incident of
previous night, again the challenge shall remain that why the police was not
informed immediately thereafter? All the witnesses are silent in this regard
therefore the foundation of the case is defective.
20. Muhammad Riaz (PW-6) and Sajid Amin (PW-7),
when came in witness box, they stated that on 24.07.2010, at about 11/11:30 pm
they had seen all the accused standing together near the gutter and when they
inquired, accused replied that they were present for discussion on some
domestic issue.
21. In the village area at about 11/11:30 pm to be present at a
place where all accused were also stated to be available, seems to be abnormal.
Although in examination-in-chief both the witnesses did not state that from
where they were returning however on perusal of their cross-examination, it
appears that Muhammad Riaz (PW-6) was having some ailment and he had gone to
doctor at Multan with Sajid Amin but they could not successfully prove this
fact. According to Muhammad Riaz, he was suffering from stomach problem so for
this reason had gone to the doctor. No prescription of the doctor or any other
proof was produced by him. Statement of Sajid Amin reveals that he was unable
to tell the name of doctor, the details of hospital or the clinic or its
location etc.
22. Both these witnesses were closely related to the
complainant. It cannot be disputed that on 25.07.2010 in the morning they came
to know about the missing of Ahmad Khan from his house. If it was so, then why
on the same day they did not bother to inform Muhammad Riaz complainant, about
the presence of all accused together. This disclosure at that time was much
relevant for the reason that on previous night, accused had extended threats to
eliminate Ahmad Khan and in the morning he was found missing. Presuming that
they did not deem it proper, even then prosecution cannot come out of another
test that why, immediately after the recovery of dead body from same gutter
where they had seen the accused, they did not disclose it to complainant and
why they opened their mouths after the funeral prayer of the deceased was over?
23.
In view of above by disbelieving both Muhammad Riaz and Sajid Amin this Court
declares that prosecution lost another hook of the chain.
24. Finally coming to the story of prosecution about
apprehending Allah Rakkha (appellant) and recovery of dead body
at his instance, when other pieces of evidence have already been disbelieved,
this too cannot be relied upon on many additional reasons. If complainant and
two others were succeeded to apprehend the appellant, who got recovered the
dead body, how was it possible for him/appellant to escape? In his
examination-in-chief Muhammad Riaz/complainant (PW-1) did not
disclose the time, when the dead body was recovered however, in
cross-examination the time he told was 07:00/08:00 am. He further maintained
that information was provided to police, who arrived at crime scene at 10:00
am. Similarly Rajjad (PW-2) was silent about the time of recovery
of dead body in his examination-in-chief however, in cross-questioning, he
responded that at about 09:00 am they meet appellant, who fled away but was
apprehend, which means that dead body was recovered after 09:00 am. Khuda
Bakhsh (PW-3) in cross-examination answered that the complainant
informed the police at about 09:30/10:00 am. Naveed Abbas Constable (PW-8),
who had escorted the dead body to hospital in his cross-examination, replied
that they left the police station at about 08:00/09:00 am and he received the
dead body at about 10:00 am. Finally, version of Muhammad Zafar SI/IO (CW-1)
in this context was that they arrived at crime scene at 08:00 am.
25.
Above serious contradictions about the meeting of appellant with the witnesses,
information to police and arrival of the investigating officer at crime scene
are serious in nature hence cannot be overlooked. If the complaint (PC) is
examined, it shows that it was completed at 08:00 am that means the police
arrived at crime scene much earlier to that. If it was so, how the statement of
Muhammad Riaz (PW-1) can be believed who stated that police came there at about
10:00 am. So, Prosecution even here is at loss of another link of chain.
26. About the medical evidence, it is observed that the
post-mortem examination in fact was conducted by Dr. Sajid Amin who had gone
abroad, therefore, post-mortem report (CW-2/A) through secondary
evidence was proved by Dr. Javed Iqbal (CW-2). As referred
earlier the complaint (PC) was completed at 08:00 am and immediately thereafter
dead body was sent to hospital for post-mortem examination. Naveed Iqbal
Constable (PW-8) was the one who escorted the dead body to
hospital that was at a distance of about 10-kilometrs. He categorically stated
that he received the dead body at 10:00 am and reached the hospital within an
hour. It means that the dead body was in hospital at 11:00 am. This position is
in serious contrast on examination of post-mortem report, where in the relevant
column the time of receiving the dead body is recorded 02:00 pm. It is a case
of circumstantial evidence and every piece of evidence has to be analyzed in a
critical way therefore this variation cannot be left unattended or answered in
favour of prosecution.
27. The post-mortem examination of deceased was conducted at
03:00 pm, which is further challenge for prosecution but with no answer that if
the dead body was in the hospital at 11:00 am, why the autopsy was delayed. In
“Khalid alias Khalidi & 2 others vs. The State 2012 SCMR 327” , the
incident took place at 02:00 am, FIR was recorded at 04:00/05:00 am and
post-mortem examination was conducted at 03:00 pm i.e. after about ten hours.
It was held that this fact clearly shows that FIR was not lodged at the given
time. In “Irshad Ahmed vs. the State 2011 SCMR 1190” post-mortem
examination was conducted with a noticeable delay. The apex Court held that
delay was suggestive of a real possibility that time had been consumed by the
police in cooking up a story for the prosecution.
28. All other accused of the case including Ghulam Shabbir, who
was involved on the basis of supplementary statement, were acquitted from the
case on the basis of same impugned judgment. If initial story of coming of
accused at the house of deceased and threatening to kill him and the next
episode of their presence near the gutter has been disbelieved, how the same
evidence can be relied upon qua the appellant?
29. These are the settled principles of law that it is the
burden of the prosecution to prove its case against the accused beyond reasonable
doubt; this duty remains throughout and does not shift to the accused, who is
only burdened to prove a defence plea, if he takes; in case of failure to
discharge, its responsibility, the accused shall be entitled for benefit of
doubt, not as a matter of grace but as a matter of right.[12]
30. This takes me to the ultimate conclusion that under no
circumstance, prosecution was able to prove its case beyond reasonable doubt
against appellant and the learned trial Court without applying judicial mind to
the facts and circumstances of the case and by ignoring the settled principles
for appreciation of circumstantial evidence, wrongly relied the prosecution’s
version, hence the conviction of appellant cannot sustain.
31. Summing up the deliberations made above, this Criminal
Appeal is allowed, while reserving the impugned judgment
dated 17.09.2013. Allah Rakkha/Appellant is acquitted from
the case. He is on bail and his surety is discharged from terms and conditions
of bail bonds.
(K.Q.B.) Appeal allowed