Javed Iqbal & another vs The State
This criminal appeal challenges the conviction of the appellants under Section 302(b) of the Pakistan Penal Code for the homicidal death of the deceased, whose body was found with firearm injuries in a jungle. The core legal question revolved around the reliability and sufficiency of circumstantial evidence, specifically the 'last seen' theory, police-recorded pointations, and weapon recovery, to sustain a murder conviction. The Lahore High Court held that the evidence of being 'last seen' in the company of the accused was unrealistic, flawed, and lacked the requisite proximity in time and space, while the pointing out of the place of occurrence while in police custody was inadmissible under Article 39 of the Qanun-e-Shahadat Order, 1984 as no new discovery was made. The Court laid down that circumstantial evidence must form an unbroken chain of circumstances of unimpeachable quality excluding every hypothesis of innocence, that one weak piece of evidence cannot corroborate another, and that corroborative evidence such as positive forensic reports cannot sustain a charge when the substantive prosecution evidence fails. Consequently, the appeal was allowed and the appellants were acquitted on the benefit of the doubt.
- Can a conviction for murder be sustained solely on 'last seen' evidence without proximity in time and space?
- Whether the pointing out of a place of occurrence already known to the police and complainant is admissible under Article 39 of the Qanun-e-Shahadat Order, 1984?
- Can corroborative evidence such as a positive forensic report sustain a charge in the event of failure of the substantive prosecution evidence?
- Section 302(b), Pakistan Penal Code 1860
- Section 382B, Code of Criminal Procedure 1898
- Article 39, Qanun-e-Shahadat Order 1984
QAZI MUHAMMAD AMIN AHMED, J:- Prosecution case structured upon statement (Ex.PH) of Muhammad Bilal (PW-8) relates to the homicidal death of Muhammad Younas, hereinafter referred to as the deceased. Javed Iqbal and Munir Ahmad, hereinafter referred to as the appellants, were indicted on the charge. According to Muhammad Bilal (PW-8) on the fateful day i.e. 4.6.2006 at Magrab Vela while he was present in his house along with the deceased, Mehmood- ul-Hassan and Muhammad Ibrar PWs the appellants came there and within their view the deceased left in their company. The deceased was reputed to heal sufferings through incantation and it was on this pretext that he was deceitfully taken away by the appellants, to solace some person, who did not return till 5.6.2006, thereafter in pursuance of information the complainant and PWs went to Chak No.424/TDA to find the deceased lying dead in a Jungle who was fatally shot in his head.
Motive cited in the Ex.PH is that the deceased made indecent advances towards Mst. Zubaida, his daughter in law, married with Muhammad Bilal (PW-8); she is a real sister of Javed Iqbal appellant who in this backdrop, harbored a grudge against the deceased.
2. Dr. Bashir Ahmad (PW-5) conducted autopsy; he noted two firearm entry wounds one measuring 1 cm x 1 cm on the right temporal region 3 1/2 cm anterior to right ear, it communicated with an exit 1 1/2 cm below left ear lobe. The second shot penetrated mastoid region 8 cm behind right ear making its exit on left parietal region 4 cm above left ear. Post mortem peeled off epidermis was noticed on four different parts of the body. Injuries No.1 & 2 were cause of death.
3. The Investigating Officer Asghar Hussain S.I (PW-10) during spot inspection secured two casings of 30 Caliber P-2 & P-3. The appellants were arrested on 16.6.2006; they pointed out place of occurrence and memo (Ex.PD) in respect thereof was prepared. Upon a disclosure on 20.06.2006, Javed Iqbal appellant led to the recovery of 30-Caliber pistol (P-9), made into a sealed parcel. On conclusion of investigation, the appellants were sent to face trial when on 3.10.2006, they denied the charge and claimed trial in pursuance whereof prosecution produced as many as 11 witnesses, besides forensic reports to bring home charge against them. Javed Iqbal confronted prosecution evidence with the following plea:- "The Pws are related inter-se and inimical to me. All of them have deposed falsely. The FIR was registered after preliminary investigation and is totally a fabrication, neither the deceased used to do 'Dam Darood' nor I and my co-accused visited his house for this purpose. I never took deceased for Dam Darood, on motor cycle with my co-accused Munir Ahmad. PW-8 Muhammad Bilal wanted to divorce my sister and to marry with another lady and I had threatened him with dire consequences if he divorced my sister or marry other woman. In order to get me convicted and marry with other woman and divorce my sister he has falsely involved me in the case. The deceased was himself of bad character. His women folk are of bad character. His women folk used to go away from the house for immoral purpose. Such like persons were inimical to him. He often quarrel with his women folk for this and his in-mated had even made assault on him. I have not murdered the deceased. The motive is false. The medical evidence is in direct conflict with recovery evidence. No pistol was recovered on my pointation or disclosure. I never led to the recovery of alleged place of occurrence. I was not arrested alongwith my co-accused on the motorcycle."
Munir Ahmad, appellant also offered denial.
4. Upon conclusion of the trial, the learned trial Judge, vide judgment dated 24.01.2007 returned a guilty verdict convicting the appellants under Section 302(b) PPC as Ta'zir and sentenced them to life imprisonment with compensation of Rs.50,000/- each or 6 months S.I in default of payment thereof with benefit of Section 382 (B) Cr.P.C, vires whereof are being challenged through this appeal.
5. Learned counsel for the appellants contends that there is no credible evidence which could even remotely connect the appellants with the crime; that the deceased was a person with dubious character who met his homicidal death under circumstances which remained shrouded in mystery and as such the impugned conviction is not sustainable.
6. Contrarily, the learned Law Officer assisted by learned counsel for complainant has defended the impugned judgment.
7. Heard. Record perused.
8. The mainstay of the prosecution is evidence of departure of the deceased in the company of the appellants within the view of Muhammad Bilal (PW-8)/complainant accompanied by another brother and uncle; he is brother in law of Javed Iqbal appellant. Initial silence of Muhammad Bilal (PW-8) after deceased's failure to return home is intriguing; in the natural course of events he should have first approached Javed Iqbal appellant to inquire about the whereabouts of his father.
It is equally improbable that Javed Iqbal appellant would take the deceased to put him to a homicidal death within the view of his family members. There was no urgency to quench the motive even if it is believed at all. The evidence of last seen in this backdrop is unrealistic and flawed. Appellants' pointing out of the place of occurrence in police custody and a memo in support thereof cannot be admitted in evidence; the said place was already within the knowledge of the complainant as is shown in the site plan (Ex.PM) dated 05.06.2006 and therefore subsequent reference thereto by Munir Ahmad appellant and memo of identification Ex.PC in pursuance thereof while his being in police custody is hit by article 39 of the Qanun-e-Shahadat Order, 1984 as nothing new was discovered. A piece of circumstantial evidence must come from an unimpeachable source with such a quality which must exclude every hypothesis of innocence.
Statement of Muhammad Ibrar (PW-9) is at the same footings. One weak piece of evidence cannot corroborate another. Circumstantial evidence must constitute a nexus through a chain of circumstances linking the crime with the culprit; last seen alone cannot sustain the charge as it sans proximity in time and space. Positive forensic report (Ex.PR) about pistol (P-9) wedded with casings secured from the spot is merely corroborative. In the event of prosecution's failure on its substantive side, corroborative planks cannot save the structure. In this backdrop, it would unsafe to maintain convictions. Therefore, while extending benefit of doubt to the appellants, Crl.Appeal No. 76 of 2007 is allowed, they are acquitted from the charge; they are on bail, their sureties are discharged.