2021 Y L R 2253

[Lahore]
Before Sadaqat Ali Khan and Muhammad Amjad Rafiq, JJ
RIZWAN AKHTAR alias RAZI BAWA and another---Appellants
Versus
The STATE ---Respondent
Criminal Appeal No. 1112-J and Murder Reference No. 290 of 2015, heard on 18th May,
2021.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to
unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Last
seen evidence--- Scope ---Accused were charged for committing sodomy and murder of the
son of the complainant---Record showed that last seen evidence had been furnished by two
brothers/ witnesses, who were also khalazad of the complainant---Said witnesses stated that
at evening time, they had seen the deceased sitting in between the accused persons while
riding on a motor cycle who were proceeding towards the place of occurrence---Witnesses
told said fact to the complainant after two days when their statements were recorded by the
police---Complainant, however, admitted in cross-examination that both the said witnesses
were present in the Namaz-e-Janaza of deceased---Conduct of said two witnesses was highly
improbable who did not inform the complainant in time---Circumstances established that the
prosecution had failed to bring home the guilt of the accused---Appeal against conviction was
allowed, in circumstances.
(b) Criminal trial---
----Evidence---Last seen evidence---Scope---Last seen evidence was a weak type of evidence
which could be procured at any time during the investigation when direct evidence was not
available to the prosecution.
Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to
unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Last
seen evidence---Evidence of wajtakkar---Scope---Accused were charged for committing
sodomy and murder of the son of the complainant---Wajtakkar witness stated that between,
Asar and Maghrib time, he was going to his house, when he reached near place of
occurrence, he had seen a motorcycle parked near the wall---In the meantime, both the
accused alighted from the wall, sat on the motorcycle and went away---Said witness narrated
the said fact to the complainant as well as the police---Witness, in his cross-examination had
admitted that he was step-brother of complainant---Question had arisen that how the witness
being step paternal uncle of the deceased remained unaware of murder of deceased and about
his funeral---Accused had also not mentioned the registration number of the motorcycle of
the accused---Said witness did not claim himself to be the eye-witness of the occurrence
rather his evidence was maximum of "Wajtakkar", which was a weak type of evidence and
was not believable in absence of independent corroborative piece of evidence which was
conspicuously missing in the case---Circumstances established that the prosecution had
failed to bring home the guilt of the accused---Appeal against conviction was allowed, in
circumstances.
Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to
unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Extra-
judicial confession---Scope---Accused were charged for committing sodomy and murder of
the son of the complainant---Witness of extra judicial confession, a close relative of the
complainant, stated that he was present along with another witness on Railway station, when
at about 10/10.15 am, both the accused individually confessed their guilt before them---Said
witness was interested witness and could not be relied upon---Alleged extra judicial
confession made by the accused before the said witness was of no avail to the prosecution, as
the evidence of extra judicial confession was a weak type of evidence---Circumstances
established that the prosecution had failed to bring home the guilt of the accused---Appeal
against conviction was allowed, in circumstances.
Tahir Javed v. The State 2009 SCMR 166 rel.
(e) Criminal trial---
----Evidence---Medical evidence---Scope---Medical evidence though might confirm the
ocular evidence with regard to the seat of the injury, nature of injury, kind of weapon used in
the occurrence but it would not connect the accused with the commission of crime.
Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to
unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Recovery
of incriminating material--- Reliance---Scope---Accused were charged for committing
sodomy and murder of the son of the complainant---Recovery of blood-stained piece of
concrete from accused and recovery of blood stained Qameez of co-accused on their lead was
inconsequential particularly when Qameez and concrete were not sent for chemical analysis--
-Even recovery of motorcycle was of no use for the prosecution when witness did not depose
about its registration number---Circumstances established that the prosecution had failed to
bring home the guilt of the accused---Appeal against conviction was allowed, in
circumstances.
(g) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Principle----One tainted piece of
evidence could not corroborate another tainted piece of evidence and if it was allowed to be
done then very necessity of corroboration would be frustrated.
Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410rel.
(h) Criminal trial---
----Benefit of doubt---Principle---Where not a single piece of prosecution evidence inspired
confidence and even the accumulative effect of whole prosecution case did not advance the
case of prosecution, benefit of doubt would go to accused.
Muhammad Akram v. The State 2009 SCMR 230 rel.
Muhammad Ahsan Bhoon assisted by Irfan Gondal for Appellant (Rizwan Akhtar).
Tazheer Shahzad Tarrar for Appellant (Habib Khan).
Muhammad Nawaz Shahid, Deputy Prosecutor General for the State.
Ch. Lehrasib Khan Gondal for the Complainant.
Date of hearing: 18th May, 2021.
JUDGMENT
MUHAMMAD AMJAD RAFIQ, J.---Appellants Rizwan Akhtar alias Razi Bawa and
Habib Khan alias Tapori, through the afore-mentioned appeal have assailed the Judgment
dated 31.07.2015 passed by learned trial court in case FIR No.79 dated 11.03.2013 under
section 367-A/ 377/ 302, P.P.C. Police Station Saddar, District Mandi Bahauddin; Murder
Reference was also sent by the learned trial court for confirmation of the death sentence of
the appellants or otherwise. Appellants were convicted and sentenced through impugned
judgment as under;
 (i) Convicted under section 367-A, P.P.C. read with section 34, P.P.C. and sentenced to
rigorous imprisonment for 25 years each with fine of Rs.1,00,000/- each and in
default thereof to undergo simple imprisonment for a further period of six months
each.
(ii) Convicted under section 377, P.P.C. read with section 34, P.P.C. each and sentenced
to rigorous imprisonment for 10 years with fine of Rs.1,00,000/- each and in default
thereof to undergo simple imprisonment for a further period of six months each.
(iii) Convicted under section 302(b), P.P.C. read with section 34, P.P.C. each and
sentenced to death as Ta'zir with payment of compensation of Rs.200,000/- to the
legal heirs of Mohammad Nadeem deceased under section 544-A, Cr.P.C. each and in
default thereof to undergo simple imprisonment for a further period of six months
each.
2. Briefly, the prosecution case is that on the evening of 10.03.2013, Muhammad Nadeem
son of Muhammad Saleh complainant, aged about 12 years went out of his house to a nearby
playground but did not return; on search by complainant and witnesses they found dead body
of Muhammad Nadeem lying in a deserted residential quarter of Rural Health Center (RHC),
Dhok Kasib; upon which crime was reported against unknown accused on 11.03.2013 at
12.30 am. Complainant later nominated the present accused persons through supplementary
statement on 12.03.2013 on the basis of information supplied by witnesses of last seen and
Wajtakar.
3. Heard. Record perused.
4. There was no direct evidence against the appellants; Prosecution case hinges upon the
evidence of (1) Last seen (2) Wajtakar (3) Extra judicial Confession, (4) Medical Evidence
and (5) recovery.
i. LAST SEEN EVIDENCE
5. Witnesses of last seen, Muhammad Anar PW-11 and Muhammad Khan PW-12 are real
brothers inter se and are khalazad of the complainant, who stated in their statements before
the learned trial court that on 10.03.2013 at degar wela (evening), they saw Muhammad
Nadeem deceased sitting in between Rizwan Akhtar alias Razi Bawa and Habib Khan alias
Tapori appellants while riding on a motor cycle who were proceeding toward Rural Health
Center, Dhok Kasib. The witnesses told this fact after two days to the complainant on
12.03.2013 when their statements were recorded by the police; complainant, however,
admitted in cross-examination that both these witnesses were present in the Namaz-e-Janaza
of deceased on 11.03.2013. Conduct of these two witnesses is highly improbable who did not
inform the complainant in time. Even otherwise last seen evidence is a weak type of evidence
which is procured at any time during the investigation when direct evidence is not available
to the prosecution. Reliance in this regard is placed on the case reported as "Altaf Hussain v.
Fakhar Hussain and another" (2008 SCMR 1103).
ii. EVIDENCE OF WAJTAKKAR
6. Witness of Wajtakkar Mazhar Iqbal PW-15 stated in his statement before the learned
trial court that on 10.03.2013 between Asar and Maghrib time, he was going to his house,
when he reached near RHC Dhok Kasib, he saw a motor cycle parked near the wall; in the
meantime, both the appellants alighted from the wall, sat on the motorcycle and went
towards Veterinary Hospital. On 12.03.2013 he narrated the above said fact to the
complainant as well as the police. In his cross-examination, he has admitted that he is step-
brother of Saleh (complainant). The question arises that how he being step paternal uncle of
the deceased remained unaware of murder of Nadeem and about his funeral. He has also not
mentioned the registration number of the motorcycle of the appellants. This witness does not
claim himself to be the eye-witness of the occurrence rather his evidence is maximum of
"Wajtakkar" which is a week type of evidence and is not believable in absence of
independent corroborative piece of evidence which is conspicuously missing in the present
case. Reliance is placed on the case titled "Muhammad Mansha Kausar v. Muhammad
Asghar and others" (2003 SCMR 477).
iii. EXTRA JUDICIAL CONFESSION

7. Other type of evidence in this case is of informal admission which in our system is
known as extra judicial confession, which means an out of court statement which is adverse
to the case of the person making it. The reason that admissions are admissible by way of
exception to the hearsay rule is that it is thought that people rarely say things adverse to
themselves unless those things are true. Illustration (a) to Article 119 of Qanun-e-Shahadat
Order, 1984 put burden on the prosecution to prove the extra judicial confession made by the
accused to a third party and such burden requires higher degree of probability particularly
when case is of circumstantial evidence.
8. Witness of Extra Judicial Confession, Ghulam Rasool PW-16 being close relative of the
complainant stated that on 24.03.2013, he was present along with Anser (given up PW) on
Railway Station Chailianwala to go Dheerkay Kalan when at about 10/10:15 a.m. both the
appellants confessed their guilt individually before them; he is interested witness and cannot
be relied upon; As far as implication of the appellants through the statement of this PW is
concerned, we are of the view that alleged extra judicial confession made by the appellants
before this witness is of no avail to the prosecution as the evidence of extra judicial
confession is a weak type of evidence. Reliance is on Tahir Javed v. The State (2009 SCMR
166).
iv. MEDICAL EVIDENCE
9. Medical evidence though may confirm the ocular evidence with regard to the seat of the
injury, nature of injury, kind of weapon used in the occurrence but it would not connect the
accused with the commission of crime. Reliance is placed in the case of Altaf Hussain v.
Fakhar Hussain and another (2008 SCMR 1103). The DNA test was not applied on the
appellants in this case. Therefore, prosecution lacks corroboration through this piece of
evidence.
v. RECOVERY
10. Recovery of blood-stained piece of concrete P-6 from appellant Habib Khan alias
Tapori and recovery of blood stained Qameez P-3 of appellant Rizwan Akhtar alias Razi
Bawa on his lead is inconsequential particularly when Qameez P-3 and concrete P-6 were not
sent for chemical analysis; even recovery of motorcycle is of no use for the prosecution when
witness did not depose about its registration number.
11. Though Article 19 of Qanun-e-Shahadat Order, 1984 supports the admissibility of
circumstantial evidence as Res gestae, a form of an exception to hearsay; Res gestae means
'part of the matter' and has evolved as an umbrella term referring, in general terms, to
statements which are so bound up with a particular transaction as to form an important part
of that transaction. In other words, the evidence must have such obvious relevance in relation
to other evidence that it needs to be admitted in order to 'complete the picture'. This vague
concept or type of inadmissible evidence has found its place in the law of evidence in the
form of admissible evidence only if it qualifies the following characteristics;
1. Spontaneous exclamation, which means, person involved, whether a victim or a
witness, says something instinctively which is seen as intrinsic to the event in
question. The requirements here are contemporaneity with the event and absence of
concoction. If the person has had time to think about what he has seen or about what
 has happened, there is a risk that the statement has lost its spontaneity, it is no longer
unpremeditated.
2. Contemporaneous physical condition; which means person victim of assault or in a
condition has personally present and informed the witness about tragedy or misdeeds
committed by the alleged accused.
3. Present intention; if the victim before the occurrence has posted the intention of
accused to the witness about the conduct of the alleged accused.
4. Statement accompanying an act; a statement is also admissible as part of the res gestae
if it contemporaneously accompanies and explains the act of person making it . The
act and statement must be inextricably linked.
12. Honourable Supreme Court in Judgment reported as Shabbir Hussain alias Sukku v.
The State (PLD 2003 SC 368), has explained almost similar principles. We have noted that
circumstantial evidence in this case lacks above qualification; therefore, cannot be believed
in any circumstances.
13. The value of circumstantial evidence has to be assessed on consideration that it must
be such as not to admit of more than one conclusion, and, in order to find the guilt of a
person accused of criminal charge, the facts proved must be incompatible with his innocence
and incapable of any explanation upon any other reasonable hypotheses than that of any of
his guilt; reliance is on Lal Shah v.The State (1970 SCMR 743).
14. It is settled by now that one tainted piece of evidence could not corroborate another
piece of tainted evidence because if this is allowed to be done then very necessity of
corroboration would be frustrated. Reliance is placed on case titled "Mursal Kazmi alias
Qamar Shah and another v. The State (2009 SCMR 1410).
15. On the touchstone of the golden principle referred above, not a single piece of
prosecution evidence inspires confidence and even the accumulative effect of whole
prosecution case does not advance the case of prosecution for the reasons discussed above.
Therefore, we are of the considered view that prosecution has failed miserably to bring home
the guilt of the appellants, who are entitled for the benefit of doubt not as a matter of grace
but as a matter of right as held by the Apex Court in the case of Muhammad Akram v. The
State (2009 SCMR 230).
16. Resultantly, the appeal is allowed, the convictions and sentences recorded by the
learned trial court against the appellants through the impugned judgment dated 31.07.2015
are set aside and they are acquitted of the charges. The appellants are in jail, they shall be
released forthwith if not required in any other case.
17. Murder Reference is answered in the Negative and death sentences of appellants
(Rizwan Akhtar alias Razi Bawa and Habib Khan alias Tapori) are not confirmed.
JK/R-S/L Appeal allowed.