Citation(s): 2009 SLD 1803 = 2009 SCMR 1248

Supreme Court of Pakistan

Criminal Shariat Appeal No.11 of 2007, decision dated: 4-05-2009

, JUSTICE M. JAVED BUTTAR, CHAIRMAN, JUSTICES MUHAMMAD FARRUKH

MAHMUD, MAHMOOD AKHTAR SHAHID SIDDIQUI, DR. ALLAMA KHALID MEHMOOD
AND ALLAMA RASHID AHMED, JULLAUNDHRI, MEMBERS

MUHAMMAD SAJJAD
Vs
THE STATE

Law: Pakistan Penal Code, 1860

Section: 302(b),380/411
Law: Constitution of Pakistan, 1973
Section: 203-F(2B)

(a) Penal Code (XLV of 1860)---Ss. 302(b) & 380/411---Constitution of Pakistan (1973),
Art.203-F(2B)---Leave to appeal was granted to accused by Supreme Court to reappraise
the evidence of last seen and the recoveries.

(b) Penal Code (XLV of 1860)---Ss. 302(b) & 380/411---Appraisal of evidence---Crime was
un-witnessed---Story of extra-judicial. confession had been disbelieved by the Appellate
Court for good and cogent reasons---Co-workers of the complainant who happened to be
present at the relevant time by chance, had only stated about the presence of the accused
near the house of the complainant and they had not seen the deceased in the company of
accused---Conduct of the prosecution witnesses who were chance witnesses, and their
indifferent and unnatural reaction in the matter, had called for very strong and independent
corroboratory evidence to believe their testimony, which was lacking in the case---Recovery
of identity card of the complainant which was of no use to accused and the ordinary silver
ring of the deceased of not much worth to be stolen, from the accused, had been proved
through the improved statements of two constables in violation of the mandatory provisions
of S.103, Cr.P.C., who were subordinate to the Investigating Officer---No explanation was
available as to why the inhabitants of the locality were not associated during search---
Recovery evidence, thus, was not worthy of any credence---Medical evidence did not lead to
the killer---Accused was acquitted in circumstances.

Muhammad Azam v. The State PLD 1996 SC 67 and State through Advocate-General, Sindh
v. Bashir and others PLD 1997 SC 408 ref.

(c) Criminal Procedure Code (V of 1898)---

----S. 103---Search to be made in presence of witnesses---Application, requirements and

object---Section 103, Cr.P.C. applies with full force when search is to be made of a place
situated in a locality---Section 103, Cr.P.C. is relatable to the place and not to the person---
If the place to be searched is known and is situate in a locality inhabitated by the people,
then two or more respectable persons from that locality must be joined to witness the
search---Main object of the section is to guard against possible chicanery and concoction by
joining witnesses from the locality in the investigation and if such witnesses are
subsequently not produced before Trial Court on the ground of having been won-over, then
the evidence of the Police Officer making the recovery can be believed, if his conduct is

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 beyond reproach.

Muhammad Azam v. The State PLD 1996 SC 67 and State through Advocate-General, Sindh
v. Bashir and others PLD 1997 SC 408 ref.

JUDGMENT

MUHAMMAD FARRUKH MAHMUD, J.--- This appeal, by leave of this Court, is directed against
judgment dated 7-6-2007 handed down by learned Federal Shariat Court, in case F.I.R.
No.49 of 2004 registered at Police Station Raiwind Saddar, District Kasur on 8-2-2004 at 2-
00 p.m. for offences under section 302, P.P.C. read with section 10 of the offence of Zina
(Enforcement of Hudood) Ordinance, 1979, whereby convictions and sentences recorded by
the learned trial Court vide judgment dated 24-6-2005, in following offences were
maintained:---

(a) Under section 302(b), P.P.C. to life imprisonment plus compensation of Rs.5,000 in
default of payment thereof to suffer further 3 months' S.I.

(b) Under section 380/411, P.P.C. 7 years' R.I. plus fine of Rs.10,000 in default thereof to
suffer further one month's S.I. The sentences were directed to run concurrently and benefit
of section 382-B, Cr.P.C. was given to the convict.

Through the same judgment, appellant was acquitted of the charge for offence under
sections 18/10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979,

2. The case F.I.R. was registered on the statement of Muhammad Jameel P.W.13 father of
deceased Nida Jameel. The relevant facts are that the complainant was an employee of
Mehran Ramzan Textile Mills situated near Bucheke Bypass. His wife had left for Sahiwal on
7-2-2004 while his son Ahsan Jameel had gone to Lahore. Complainant and his deceased
daughter Nida Jameel were alone in the quarter allotted to the complainant. On the fateful
day at about 8-15 a.m. the complainant left his house in pursuit of his duty. Muhammad
Sajjad appellant met the complainant at his door and inquired about his going to the Mill.
The complainant informed him that he was on his way to perform his duties. The
complainant left for his job, leaving her daughter Nida Jameel aged about 10-11 years alone
in the house. At about 11 a.m. Ahsan Jameel returned from Lahore and knocked at the door
which was bolted from inside. Since the door was not opened he climbed over the wall and
jumped in the compound of the house. He discovered that Nida Jameel was lying dead in
the bed room. Ahsan rushed to the Mill and informed his father, thereafter complainant and
Ahsan went to their house and saw that Nida Jameel had been strangulated and there were
signs of abrasion on her neck, and blood was oozing from her nose. The complainant
discovered that Rs.10,000 had been removed from the drawer of the table. While reporting
the matter to the police the complainant showed his suspicion against Sajjad-appellant and
one Muhammad Riaz.

3. During trial prosecution examined 15 witnesses in support of its case. P.W.13 narrated
the facts given in the F.I.R., however he added that on checking the articles he found that
his Identity Card was also missing. He further stated that on' his return Rao Shamim Ali
Khan P.W.7, Muhammad Akram P.W.9, Raheem Ullah P.W.8 and Muhammad Hanif (not
produced) met him and informed him that they had seen the appellant in a confused state
in the street and while climbing down the wall and that Raheem Ullah had seen the
appellant while he was knocking at the door of his house and that the door was opened and
the appellant went inside. P.W.7 and P.W.9 stated that at about 10-00/10-30 a.m. they saw
the appellant while he was climbing down from the wall of the quarter of complainant. P.W.7

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 added that he called the appellant who did not stop and ran away. P.W.8 stated that at
about 10 a.m. he saw the appellant knocking at the door of the complainant and that he
also saw the appellant entering inside the quarter. P.Ws.11 and 12 Haseeb-ul-Najum and
Abdul Hameed stated about the confession of the appellant, however their statements were
discarded and not-believed. P.W.6 Dr. Farzana Shaheen conducted postmortem examination
on the dead body of the' deceased on 9-2-2004 at 11 a.m., she observed that the cause of
death was shock due to asphyxia caused by throttling due to fracture of hyoid bone. All
injuries were ante-mortem and sufficient to cause death in ordinary course of nature. She
further stated that the time elapsed between death and postmortem was about 22 hours. P.
W.5 Faryad Hussain stated about the recovery of silver ring with name Nida written on it,
I.D. Card of the complainant and Rs.5,000 at the instance of the appellant from quarter
No.10 of residential colony of Mehran Ramzan Textile Mill. Ahsan Jameel son of complainant
appeared as P.W.14 and after narrating the facts given in the F.I.R. made improvement in
his statement by stating that Identity Card of his father and ring of the deceased were also
taken away. He was duly confronted with, his statement recorded under section 161, Cr.P.C.
Muhammad Boota, S.-I. P.W.15 stated about the investigation of the case, arrest of the
accused and recoveries. The rest of the witnesses are formal in nature.

After closure of prosecution case statement of the appellant was recorded under section
342, Cr.P.C. The appellant pleaded innocence, and explained his position in answer to
question No.9 which is as follows:---

"I along with Abdur Razzak son of Sher Muhammad and Molvi Hassan resident of Qr. No.9
were arrested on 8-2-2004 by local police thereafter, local police arrested some other
workers of this mill due to suspicion. Other workers of the mill became afraid and they
started fleeing away from the mill.' Due to non-availability of workers there was
apprehension of close of mill for couple of days. In that situation owner of the mill inquired
the administration. Due to these circumstances the administration stopped the police from
arresting other workers and made me scape goat.

The P.Ws. are very interested. They made statements due to relation with complainant and
due to influence of mill administration and specially Admn. Manager, who was very
interested in this case. He appeared on each and every date of hearing in this Court after
recording of his statement. Furthermore, I produce my written reply in this regard which is
mark-A."

4. Leave was granted by this Court on 10-12-2007 to reappraise the evidence of last-seen
and recoveries. The order is being reproduced for easy reference:---

"Malik Saeed Hassan, learned counsel for the petitioner has contended that in recording
conviction against the petitioner in the instant case, the learned trial Judge had relied upon
the extra-judicial confession of the petitioner made before P.W. 11 Naseeb-ul-Najum and
P.W.12 Ch. Abdul Haq but the same was disbelieved by the Federal Shariat Court in appeal
and the petitioner was also acquitted from the charge of rape. He has added that after
disbelieving the extra-judicial confession, there remained on record only the evidence of
last seen and the recoveries i.e. ring of the deceased, Identity Card of the complainant and
a sum of Rs.5,000 allegedly recovered from the upper storey of Quarter No.10 belonging to
the Muhammad Nasrullah, the said quarter was a single storey building, therefore, the
discrepancy had marred evidentiary value of the evidence of recovery and therefore, last
seen evidence alone was not sufficient to bring home charge against the petitioner.

In order to consider as to whether in the absence of direct evidence, the afore-mentioned

pieces of evidence which according to the learned counsel for the petitioner were purely of

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 corroboratory in nature, were sufficient to base conviction, thereon, leave to appeal is,
granted."

5. The learned counsel for the appellant has submitted that the evidence of last seen was
not worthy of credence and that the recoveries were fake and were planted upon the
appellant to strengthen the case. The learned counsel for the appellant further. argued that
after disbelieving the evidence of extra-judicial confession, the learned Court convicted the
appellant merely on presumption. Conversely, it has been argued that P.Ws.7, 8 and 9 were
independent witnesses who had no motive to falsely implicate the appellant and that their
evidence was fully supported by the recovery of articles at the instance of the appellant
which fully implicated him.

6. We have heard the learned counsel for the parties and have gone through the entire
record of the case. Admittedly the story of extra-judicial confession was disbelieved by the
appellate Court for good and cogent reasons. After excluding the evidence of extra-judicial
confession, we are left with the evidence that the appellant was seen while he was entering
the house of the complainant and was also seen when was coming out of the house and the
recovery of articles belonging to the deceased and complainant at the instance of appellant.
Undeniably, it was B an un-witnessed crime. P.Ws.7, 8 and 9 only said about presence of
the appellant near the house of the complainant. P.Ws had not seen the deceased in the
company of appellant. At most this piece of evidence can be described as a relevant
circumstance through Wajtakkar (chance) witnesses. P.Ws.7, 8 and 9 are co-workers of the
complainant and happened to be present at the relevant time by chance. According to P.W.8
he saw the appellant, knocking the door of the quarter of the complainant, and entering
into it. After noticing the above fact this P.W. left for Jaranwala, and returned at 4-00 p.m.
The act of the appellant did not cause any concern to the P.W. and instead of making any
inquiry or reporting the matter to the complainant. He went to Jaranwala and managed to
return by 4-00 p.m. Which it is difficult to believe considering the distance between the
place of occurrence and Jaranwala and the occasion for which this witness had gone to
Jaranwala. According to him he had gone to Jaranwala in order to celebrate Eid with his
children, in that case there was no occasion for him to return on the same date after
leaving his children behind. P.Ws 7 and 9 have stated that they had seen the appellant while
he was climbing down the wall of the quarter of the complainant at about 10-00/10-30 a.m.
Admittedly, the unusual act of the appellant did not raise any suspicion in the minds of the
witnesses. Both of them were co-workers of the complainant, in case they had seen the
appellant climbing down out of the house of the complainant, then their, natural response
would be to immediately inform the complainant or police, or at least knock at the door of
the complainant. On the contrary both these witnesses did not react and did not narrate the
circumstance to any one till the arrival of police. P.W.7 admitted that he was on -visiting
terms with the complainant but he did not raise any noise when he saw appellant climbing
down from the wall and he did not try to apprehend the appellant. He also admits, that he
did not go to the house of the complainant after having seen the appellant and did not
disclose this fact to any neighbour, to the Security Officers or to the General Manager.
Similarly P.W.9 also admitted that after having seen the appellant climbing down from the
wall of the house of the complainant, he simply went to his house and did not bother to
inform the complainant, Security Officers, General Manager or any of the Security Guards
about it. During cross-examination, he firstly stated that his statement was not recorded by
the police then he improved his statement by stating that he did not remember and further
improved his statement by stating that his statement was recorded. In addition to all that,
it does not appeal to reason as to why the appellant chose to come out of the house of the
complainant by climbing down the wall of the house. He could easily come out from the
front door after satisfying himself that he was not being seen by anyone. It is also illogical
that the appellant would knock the door and enter inside the house of the complainant in

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 the presence of the witnesses while, according to prosecution case the appellant had
entered into the house to commit a crime. As noted above the conduct of the P.Ws., who
were chance witnesses, was not natural and their testimony could only be believed in the
presence of very strong and independent corroboratory evidence, which was lacking in this
case.

According to prosecution case, on 25-2-2004, the appellant, who was in custody led to the
recovery of Rs.5,000, Identity 'Card of the complainant and a silver ring which contained
the name of Nida. In order to prove the recoveries Faryad Hussain Constable, P.W.5 and
Muhammad Boota P.W.15 appeared before the learned trial Court. For various reasons no
reliance can be placed on this piece of evidence. Firstly it was not narrated in the F.I.R. that
the Identity Card of the complainant and silver ring of the deceased were missing. P. W.13
and P. W.14 tried to improve their statements before learned trial Court but were duly
confronted with their earlier statements. Secondly there was no occasion for the accused to
remove the Identity Card. of the complainant and the silver ring of the deceased as both
these articles could easily implicate him. Undeniably, it was an ordinary ring of not much
worth to be stolen. As far as Identity Card of the complainant is concerned it was of no use
to the accused. Anyone with a head on his shoulders would not keep these articles intact till
his arrest so as to produce those to the Investigating Officer. Thirdly the provisions of
section 103, Cr.P.C., which are mandatory in nature were violated as no one from the
locality was associated during the recovery. Both the recovery witnesses were Constables
who were subordinate to the Investigating Officer. Section 103, Cr.P.C. requires that officer
about to make the search would call upon two or more respectable inhabitants of the
locality to attend and witness the search. We would like to refer to the judgment of this
Court in the case of Muhammad Azam v. The State PLD 1996 SC 67 wherein it was
observed as follows:---

"It is necessary in this case to touch question of interpretation and requirements mentioned
in section 103, Cr.P.C., in order to clarify position. Bare perusal of section 103, Cr.P.C. shows
that it applies with full force when search is to be made of place which is in a locality. In
other words it can be said that section 103 is relatable to the place and not to the person. If
place is known where search is to be made and that place is situate in a locality which is
inhabitated by the people, then it is necessary to join two or more respectable persons from
that locality to witness the search. Main object behind section 103, Cr.P.C. is to guard
against possible chicanery and concoction and for that reason witnesses from the locality
are to be joined in the investigation and if this is done and for some reason subsequently in
the trial Court those witnesses from the locality are not produced for the reason that they
had been won-over, then evidence of police officer who made the recovery can be believed
if his conduct in the investigation is beyond reproach."

In the instant case there is no explanation as to why the inhabitants of the locality were not
associated during search. It was so held in the case of State through Advocate General,
Sindh v. Bashir and others PLD 1997 SC 408 which is as follows:---

"It may be observed that it has been repeatedly held that the requirement of section 103,
Cr.P.C., namely, that two members of the public of the locality should be Mashirs to the
recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a
particular case it was not possible to have two Mashirs from the Public."

For the above-noted reasons, the recovery evidence is not worthy of any credence.

As far as medical evidence is concerned it does not lead to the killer.

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 7. For all what has been said above, we allow this appeal. The judgments passed by the
learned Courts below are set aside, the appellant is acquitted of all the charges and would
be released if not required in any other case.

Appeal accepted.

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