P L D 2004 Karachi 319 (PLP)

(2) For the purposes of this section the term offence includes any act committed at any place out of Pakistan which would constitute an offence if committed in Pakistan." A perusal of the above provisions shows that the P. Ws. Naimudin Qureshi and Liaquat Samoo, were bound by law to inform the police about the incident. It is clearly provided that the burden of giving reasonable excuse is on the person who is aware of the commission of offence as to why he did not give the information forthwith to the nearest Magistrate, Justice of Peace or Police Officer, of such commission of offence. In this case, the two witnesses have stated that initially the could not muster courage to give evidence of having seen the appellants committing murder of deceased Zuhair Akram Nadeem, because the murder was committed by the terrorists of the M.Q.M. and the M.Q.M. was the ruling party. Their conscience awoke, when they felt secured of the imposition of Governor's Rule in the Province of Sindh, and then they voluntarily appeared before Sub‑Inspector Haider Ali Khan and laid down the information. Even if it is believed that initially the two, witnesses who are merely chance witnesses and are not the nature, witnesses, as there is nothing on record to establish that they had taken any step for taking of the shops in the under construction building, were in the state of fear because of M.Q.M. being in power, the excuse given is not reasonable. The reason being that the learned A.A.‑G. has confirmed that the Governor's Rule‑was imposed in the Province of Sindh on 30‑10‑1998 and these witnesses got their statements recorded on 5‑12‑1998 i.e. after one month and 5 days Mr. Azizullah Shaikh, has rightly pointed out that it is also doubtful if these two witnesses actually laid down the information and got their 161 statements recorded on 5‑12‑1998, because their 164 statements were recorded on 24‑12‑1998 and identification through them were held on 21‑12‑1998. There is no explanation from the prosecution on the point that if on 5‑12‑1998, these two witnesses had already got. 161 statements recorded and had nominated the present three appellants, then why accused Dilawar alias Khan Sahib and Jahangir alias Kancha who were arrested by Sub Inspector Haider Ali Khan, in an encounter with the police were not arrested on the same day in the murder case of Zuhair Akram Nadeem being Cr. No. 165/98. Be that as it may, the fact remains that there is inordinate delay which is not properly explained by the two eye witnesses and they have failed to discharge the burden of giving reasonable excuse for withholding the evidence with the result that their testimony becomes unreliable. Withholding of such information by the eye‑witness for one day came for consideration before the Lahore High Court in the case of Nawab v. Crown, AIR, 1923 Lahore

391. A Division Bench of the Lahore High Court held as follows:‑‑ "Prima facie there is no reason apparent why Farzand Ali and Hussain Shah should give false evidence against the appellant. It has, however, been frequently laid down that when a person sees a murder committed and gives no information thereof, his evidence is little better than that of an accomplice." In this case, the circumstance that the only eye‑witness did not disclose when he knew at the earliest possible opportunity, led to the opinion that it would be extremely unsafe to accept the evidence. The conviction and sentence of death was set aside and the accused was acquitted. This point came for consideration before a Division Bench of Oudh Chief Court in the case of Emperor v. Kallu, AIR 1937 Oudh.

259. Murder of a woman's paramour was committed by her husband in the presence of woman. She did not give the information of the commission of the murder to the nearest Magistrate, or police officer as required by section 44, Cr.P.C. even during the absence of her husband for about 10 days after the murder and it was held that evidence of such witness without corroboration in material particulars was not acceptable. The acquittal of the accused by the Sessions Judge was upheld on the principle that a person aware of the commission of offence and with holding the information is an accomplice who provides protection to the accused and independent corroboration of the material particulars of the evidence of an accomplice has become a rule of law. The reason underlining the rule is that the testimony of an accomplice is regarded a tentative evidence and it is, therefore, considered un‑safe to base a conviction on it, unless there is independent corroboration forthcoming. On the same principle corroboration is insisted upon in the case of evidence of informers. The point was considered by a Division Bench of Hyderabad High Court (Indian Jurisdiction), in the case of Anna and others v. Hyderabad State AIR 1956 Hyderabad

99. The evidence of two witnesses was discarded for the reason that under section 44, Cr.P.C. a person who is aware of the information of the commission of a serious offence like murder and does not lay information to the nearest Magistrate or Police Officer, is guilty of an offence and that there was no reasonable excuse for the two witnesses for not informing the authorities and hence their evidence was discredited. The accused persons were acquitted. The appellants before us, have been convicted for the offences punishable under section 302(b), P.P.C. and under section 7(a) of the Anti Terrorism Act, 1997. The offence in this case was committed on 4th July, 1998 and Chapter XVI, P.P.C. was substituted by Criminal Amendment (Act 11 of 1997) 4 dated 11‑4‑1997. It is provided in section 338‑F, P.P.C., that in the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the injunctions of Islam as laid down in the Holly Qur'an and Sunnah. The effect of withholding of evidence was considered by a larger Bench of the Federal Shariat Court, comprising 5 Hon'ble Judges to the case of Noor Khan v. Haq Nawaz, PLD 1982 FSC

265. Justice Zahoorul Haq, held as follows: "

15. We are further of the view that in Islamic Fiqah a delay in making a complaint in respect of penal offences is not favoured and particularly in respect of offence of Hudood, it has been opined by the jurists that the delay in making the complaint is either because the complainant wanted to suppress the commission of the crime or that he was motivated by feelings of hatred. Such opinion has been expressed to Badaiulsanai Fi Tartibisharai by Kasani, Vol. VII, pages 46 & 47 and Tabyinul Haqaiq, Vo. III, page 187 and also in Al Jarima by Abu Zahra at pages 79 to

90. Mr. Muhammad Bilai. Advocate for the appellant had brought with him Maulana Ali Muhammad, Nazim, Madrisa Qasamul Aloom, Mianwali, who had made a study of the subject in this respect. We heard him as a juris consult and we are thankful to him for this assistance rendered by him. In Islamic Fiqah the delay is referred to as "Taqadum". Maulana Ali Muhammad has submitted that Taqqadum was not necessary to be taken into consideration in respect of like Nikah and Talaq but he was himself of the view that in respect of punishment particularly in cases of Hudood, it was necessary to consider Taqadum. He was of the view that basically the question before us was of pronouncement of Talaq by Fateh Khan, P.W. upon Mst. Naziran Bibi and since this was one of the matters concerned with therefore, we should not worry ourselves in respect of the delay of 10/12 years. He was also of the view that since Talaq had not been proved, therefore, the accused respondents were committing crime daily whenever they cohabited with each other claiming themselves to be husband and wife. We are, however, of the view that the question before us is basically of a criminal nature and it is not a matter of Huqooqul Ibad now. We find that the F.I.R. had been alleging that the commission of Zina which could have involved very serious punishment and therefore the principle of Taqadum has to be taken into consideration by this Court. We find that even a delay of one month is regarded as fatal by Imam Muhammad. Some of the jurists are of the opinion that if there is no reason of delay then a delay of about three months in making the complaint shows that the allegations are either false or these are motivated. Hazrat Umar has opined as follows in this respect:‑‑ "Those who give evidence on a Hadd not at the time of its occurrence (but long after that) so indeed they are such witnesses who are inclined towards hatred." Al‑Mabsut Lissarakhsi, Vol. IX, page

69. With great respect, we agree with the views of the Muslim jurists and we are of the view that the F.I.R. lodged by Noor Khan in this case was hit by the principle of Taqadum and the case should have been dismissed." The principle of Taqadum was dilated upon in depth by Justice Aftab Hussain, Chairman Federal Shariat Court: I can do no better than reproduce the erudite discussion in extenso, which reads as follows:‑ "

3. Taqadum is explained by Allama Zalaie in Tabyinul Haqaiq, Vol. III, page 187: "Taqadum originates from Qadeem and it is the antonym of new and it is in this meaning that it is used; i.e. a Hadd cause of which is old and not new. The word Qadeem is sometimes used in the sense of that which continues but it is not meant here." Taqadum in relation to the crime will therefore mean an offence which is not of recent occurrence. This is clarified by Dr. Abdul Aziz Aamir in his book Attaazir Fil Shariatil Islami, page 522: "Taqadum means passing of sometime after commission of the offence or after the passing of the order of sentence, but before its execution. Its consequence is that it prohibits from passing of sentence in crimes and from executing those already passed."

4. The example of the latter is furnished by Sharah Fathul Qadeer, Vol.5, p.9. It is said that if a convict runs away after he is struck by stone or stripes and time elapses before he is rearrested the Hadd will not be carried out.

5. In regard to the proof of an offence which is hit by the principle of Taqadum it is recorded in, Tilka Hadood Ullah by Ibraheem Ahmed Alwaqafi, page 38 that: "When evidence is produced about an old offence of adultery the evidence should not be accepted according to the Hanafees."

6. The principle of Taqadum is based on one tradition of the Holy Prophet (p.b.u.h.) and another tradition of Caliph Omar. The first tradition is that the Holy Prophet (p.b.u.h.) said that: "Allah will keep the secret of one who keeps the secret of hip brother Muslim." From this it is inferred that concealment of evidence to Hudood matters is within the option of the witness. The second tradition is as stated by Caliph Omar that those who appear as witnesses to a Hadd Offence not at the time of its occurrence (not within reasonable time after the occurrence) but later they should be presumed to be acting as witnesses on account of personal hatred or dislike.

7. The principle of Taqadum, according to Imam Abu Hanifa, is applicable only when the appearance of the witness is delayed and there is no valid explanation for it but if the evidence is delayed for good cause for example distance from the Court of the Qazi or illness of the witness or restriction like that, his evidence would be acceptable and will not be hit by Taqadum (Shareh Fathul Qadeer, Vol, V, page 56, Attashriul Janai UL Islam by Abdul Qadir Audda). Specific exception is added in Mujella () meaning "of his respondent be an influential person. "

8. A very interesting and rational explanation of these word is given in Sharh ul Majella, Vol. V, p. 178 (printed in Hams 1355 Hijra). Its translation is reproduced: "Thirdly the words "litigant i.e. respondent being an influential person" point to the fact that to be of influence does not necessarily mean a man in authority. It is merely by chance or common usage that this has been often qualified by words tyrant man in authority which means that even though he (the respondent) is neither a man in authority nor any of his subordinates, but he exercises an influence and distinction with wicked enough to fabricate false criminal cases against those who resist oppose him then he shall be considered an influential person. Nay his influence in such a case would be stronger than it would have been if he were himself a man in authority. For awe have often seen the like of them, may Allah save His servants from their evils, who have captured land and property and on the other hand we have seen people whom fear from their evil often prevents from bringing any case against them in any Court: In such cases, therefore, passage of time shall not be a bar from hearing the case against such people except if any passage of time occurs after the end of their influence. The Mujellah deals with the question of limitation for suits in its Book XIV, Chapter II beginning with S. 1660. Section 1663 clarifies that the lapse of time which prevents the hearing of actions, is the lapse of time which had taken place without excuse. It reads: 1663. In this chapter is considered, that is to say, the lapse of time which prevents the hearing of actions, is the lapse of time which has taken place without excuse. On the other hand consideration is not given to time which passes, in consequence of one of the excuses allowed by Sharia Law. Such as, a person being an infant or madman or person of unsound mind, whether the plaintiff has a guardian or not, or person being in a foreign country a long away off (muddet sefer), or his opponent being a person in power. Therefore, the beginning of the time which elapses is considered to be from the removal of the excuse. For example. The time when a person is an infant is not considered in the time passed. The time elapsed from the date when he arrived at full age is considered alone. Likewise, when a person's action is with one who is in power, if time elapsed in consequence of his not being able to bring his action, while the power of his opponent lasts, it does not prevent the hearing of that action. The time elapsed is only considered from the, date when the power ceased." There is no reason why this exception should not apply to criminal cases.

9. Taqadum is applied by the Hanafi Jurists to only three categories of Hadd punishment i.e. punishment for adultery, for drinking and for theft, since all these punishments pertain to matters concerned with the rights of Allah. The limitation is not applicable to the punishment of Qazf since it involves the rights of the people (Haqooqul Ibad). It was for this reason that it was argued by Maulana Ali Muhammad that Taqadum is not applicable to Talaq (divorce). He cited in support of this from Fatawa Alamgiri, p.339 in which is recorded the verdict that Haqooqul Ibad extends to such matters as Nikah and Talaq.

10. Ibn‑e‑Abi Laila said that Taqadum hits not only the evidence but also confession (Sharah Fathul Qadeer, Vol. V, page 56). According to Iman Abu Hanifa confession in case of drinking only is hit by Taqadum and in this he is supported by Abu Yousuf but Muhammad bin Al Hasan differed from both on this point. In this view confession is not hit (not even confession of drinking) by Taqadum (Sharah Fathul Qadeer, Vol.V, page 56).

11. Imam Abu Hanifa left it to the Qazi to determine the limitation of Taqadum but Imam Muhammad (with whom Imam Abu Yousuf agreed) fixed one month's time. Some other Jurists fixed it at six months.

12. But Imam Malik, Imam Shafie, his pupils, Zaidee and Zahiree are against the principle of Taqadum and are in favour of acceptance of delayed evidence as well as delayed confession. (Almughni, Vol X, page 187, Almuhalla, Vol.

11. Page 144, Sharhulazhar Vol. IV, page 339, Attashriul Janai‑ul‑Islami by Abdul Qadir Auda, Vol. II, page 417).

13. Two different opinions are attributed to Imam Muhammad bin Hanbal. One is that he agreed with Imam Abu Hanifa and the other is that he agreed with the opinion of Imam Malik, Shafie and the second opinion prevails now among the Hanblis.

14. The principle of Taqadum is not a principle laid down either in the Holy Qur'an or the Sunnah. There is also no Ijma on it, since only the Hanafies favour it. It should therefore, be tried for its correctness and applicability to modern age on logical rational. Before proceeding to do that I would like to clarify my inability to agree with the propositions about the applicability of Taqadum to voluntary confessions and execution of sentence.

15. Three of the Hadd cases only are made subject to the principle of Taqadum and one of the Salutary principle which is recognized by all the Jurists is that in Hadd matters it is open to the accused to retract the confession not only during trial but also before the execution of the sentence. It would be meaningless to give sanctity, to the principle in respect of Taqadum or to apply it to a confession which though delayed is not retracted by the accused himself. Similarly it would be a strange proposition to allow a person to nullify the sentence passed by a Court by his own illegal act of running away or escaping from it. I could understand the rationality of this principle if it had been made applicable to execution of decree passed in civil matters since it can be said reasonably that a decree‑holder who fails to take active steps for the execution of his decree and would like merely to keep the Sword of Damocles hanging over the head of his judgment‑debtor for the satisfaction of some personal vendetta should remain cognizant and aware of the possibility of losing that edge on account of limitation, but to apply it to criminal, cases in the manner proposed would amount to giving the convict a lesson in transgression of law and in deprecating and minimizing the authority of the Court.

16. And why after all and on what logical ground can Taqadum against execution of legal sentence and in respect of confession he extended to at most three Hadd cases and denied to others.

17. It is quite possible that while extending the principle to execution of the sentence of Hadd the Jurists may be having in view the story of Maaiz who tried to run away at the time of stoning but was not allowed to do so by those who were executing the sentence on him. When this was narrated to the Holy Prophet (p.b.u.h.) he observed that he ought to have been brought to him. But this precedent cannot be cited in favour of Taqadum, since we do not know whether the Prophet (p.b.u.h.) would have considered it as retraction of his confession or he would have given him some other advice. By entering into the realm of conjecture we can derive some principle from this, and the Jurists have derived the principle that retraction of confession is possible till before the execution of the sentence, but it cannot lead to the application of the principle of Taqadum on it.

18. Now out of these two grounds which are made the basis of this principle I cannot agree with the‑ground that a witness has any option in giving evidence in matters of. The injunctions of Allah are: 65: 2 "And keep your testimony upright for Allah" 2: 283 "Hide not testimony. He who hideth it, verily his heart is sinful." 2: 140 "And who is more unjust than he who hideth a testimony which he hath received from Allah." 18‑A. In the face of these injunctions the tradition of the Holy Prophet (p.b.u.h.) cannot be interpreted as laying down something contradictory and allowing concealment of evidence. Mr. Justice Muhammad Siddiq, agreed with the views of Zahoorul Haq, J. He however, did not agree with the generalized principle propounded by the Chairman (Chief Justice) Federal Shariat Court. He held that without laying down the general principles, the delay in criminal cases always adversely affects the prosecution, unless satisfactorily explained. He observed that the delay in criminal cases has to be examined in each case and it is the duty of Court/Qazi to judge the delay in each case. It is therefore not proper to make any generalization in this behalf. The effect of delay in each case depends upon the facts of that particular case: Justice Pir Karam Shah Al‑Azhari, also dealt with the issue of Taqadum (effect of delay in giving evidence in a criminal case). In substance he supported the view taken by Aftab Hussaiin and Zahoorul Haq, JJ. Taking into consideration the facts and circumstances of the present case, we are of the opinion that there is no reasonable excuse for delay on the part of P.Ws. Naimuddin Qureshi and Liaquat Samoo, particularly when the Governor Rule in the Province was imposed on 30‑10‑1998 and the two witnesses appeared before the Investigating Officer on 5‑12‑1998. In addition to the unexplained delay, the testimony of these witnesses is fraught with contradictions, discrepancies and improbabilities. Consequently, no reliance can be placed on the un corroborated testimony of these witnesses. Now we come to the second category of evidence i.e. identification test. Evidence of identification test cannot be relied upon, first, for the reason, that the accused persons have been identified by the two eye‑witnesses whose presence at the place of incident is highly doubtful and withholding of evidence on their part for 5 months has made their testimony unreliable, secondly, we find substance in the contention of Mr. Azizullah Shaikh, that the presence of the Investigation Officer at the time of identification test and his association with the proceedings in the identification proceedings as a Mashir has made the identification test partial. It is provided in Rule 26.32 of the Police Rules, 1934 containing guidelines for the identification of suspects, that "it is advisable that, whenever possible, an independent and reliable person unconnected with the police should be present throughout the proceedings at the place where the witnesses are kept, and should be required to devote his attention entirely to the prevention of collusion. It is important that, once the arrangements for the proceedings have been undertaken, the officer investigating the case and any police officer assisting him in that investigation should have no access whatever either to the suspects or to the witnesses. The value of tests arranged by the Investigating Officer or his subordinates is inevitably liable to be called in question by the defence." Mr. Habib Ahmed, learned AAG, is not able to rebut the contention of Mr. Azizullah Shaikh, that the identification test has become unreliable because of the presence of the Investigating Officer during the entire proceedings and his acting as Mashir of the, identification test. We are persuaded to agree with the submissions of Mr. Azizullah Shaikh and identification test is ruled out of consideration. The result of the above findings is that the prosecution is left with judicial confessions only. The contentions of Mr. Azizullah Shaikh, have already been recorded in the earlier part of this judgment. The learned A.A.‑G. is not able to rebut the contention that no independent corroboration to the retracted judicial confessions is available and consequently such retractive judicial confession can not form basis for awarding capital sentence. For the foregoing reasons, we are of the considered opinion that the prosecution has failed to bring home the guilt to the appellants and consequently they are entitled to be acquitted. The impugned convictions and sentences are therefore, set aside. All the three appellants/convicts/ accused are acquitted of all the charges against them. The appeal is allowed accordingly. The confirmation reference is rejected. All the appellants were serving out the sentences and are hereby directed to be released forthwith if not required to be detained in any other case. N.H.Q./M‑40/K Appeal accepted.