MUHAMMAD RAFIQ vs BURKHA and 11 otherss
This criminal appeal challenges the acquittal of eleven respondents by the Additional Sessions Judge, Faisalabad, regarding charges under sections 364, 302, 201, and 109 of the Pakistan Penal Code 1860, and section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question was whether the prosecution had produced sufficient evidence to establish the guilt of the respondents beyond a reasonable doubt in a case based entirely on circumstantial evidence. The Lahore High Court dismissed the appeal, upholding the acquittal. The Court held that the prosecution failed to prove its case, noting significant evidentiary gaps: the FIR was delayed by six months, the alleged weapon recovery was inconsequential, the extra-judicial confession was inadmissible as a joint confession, and the sole witness to the confession was not credible. Furthermore, the Court ruled that 'last-seen' evidence is insufficient for conviction without corroboration, particularly when the dead body was never recovered and the cause of death remained unascertained. The principle established is that in circumstantial cases, last-seen evidence requires strong corroboration and proximity to the time of death to sustain a conviction.
- Can a conviction be sustained solely on the basis of last-seen evidence in the absence of corroborative proof?
- Is a joint extra-judicial confession admissible in evidence?
- Does the failure to recover a dead body and conduct a post-mortem examination preclude a conviction for murder?
- Can an appellate court summarily dismiss a criminal appeal under Section 421 of the Code of Criminal Procedure 1898?
- Section 364, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 421, Code of Criminal Procedure 1898
ORDER
' IJAZ AHMAD CHAUDHRY, J.--- Through this appeal the appellant has called in question the judgment dated 30-4-2005 rendered by the learned Additional Sessions Judge, Faisalabad whereby respondents Nos.1 to 11 were acquitted of the charge in case F.I.R. No,1175 of 2003 registered at Police Station Sadar, Faisalabad in respect of offences under sections 364/302/201/109, P.P.C.
And section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. At the commencement of the trial no ;harge was framed against the respondents in respect of an offence under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. It has been argued by the learned counsel for the appellant that sufficient incriminatory evidence was available on the record establishing culpability of respondents Nos.1 to 11 and, therefore, the learned trial Court was not justified in acquitting the said respondents.
3. After hearing the learned counsel for the appellant and going through the impugned judgment passed by the learned trial Court we have straightaway noticed that the F.I.R. In this case had been lodged with a delay of about six months. Admittedly the murder in issue had remained unwitnessed and in order to establish its case against respondents Nos.1 to 11 the prosecution had relied only upon different pieces of circumstantial evidence. We have attended to each and every piece of evidence produced by the prosecution before the learned trial Court and have found that the alleged recovery of Datar was legally inconsequential because admittedly the said weapon was not stained with blood, the extra-judicial confession allegedly made by the respondents had remained far from being proved as both the prosecution witnesses who had to testify in support of the same had not been produced by the prosecution before the learned trial Court; the complainant had also claimed before the learned trial Court that he too was a witness of the alleged extra-judicial confession but admittedly the complainant had never made any statement under section 161, Cr.P.C. In that connection and this fact was asserted by the complainant for the first time before the learned trial Court; even otherwise the extra-judicial confession allegedly made by respondents Nos.1 to 11 had the trappings of a joint confession which is inadmissible in evidence; the driver of the taxicab cited in the calendar of witnesses had appeared before the learned trial Court but he had turned hostile; and the only other piece of evidence left in the field was in the shape of last-seen evidence but we have found that respondents Nos.1 to 11 could not have been convicted on the basis of that piece of evidence alone. Admittedly the dead body of the deceased had never been recovered and, thus, no post-mortem examination of the same was available on the record. In the absence of any post-mortem examination the date and time of murder and even the cause of death could not be ascertained and, thus, it was not possible to establish any proximity between the last-seen evidence and the time of death of the deceased. In the absence of any proximity having been established the last-seen evidence had lost its relevance. Apart from that there was no other corroborative piece of evidence available on the record so as to lend support or credibility to the last-seen evidence produced by the prosecution.
After assessing and evaluating the evidence available on the record the learned trial Court had concluded that the prosecution had miserably failed to prove its case against respondents Nos.1 to 11 beyond reasonable doubt and we have not been able to take any legitimate exception to the said conclusion of the learned trial Court vis-a-vis respondents Nos.1 to 11. This appeal is, therefore, summarily dismissed under section 421, Cr.P.C.