2026 PLP 1205 (YLR)

Sadiq Ali, J.

At a trial held by learned Additional Sessions judge-VI / MCTC, Abbottabad in case FIR No. 69 dated 03.02.2017 registered under Sections 302 / 364 / 365 / 149 / 109 / 201 / 202 P.P.C at Police Station Havelian District Abbottabad, appellants namely, (1) Amjad son of Khaliq Dad and (2) Khawar Ali son of Muhammad Riaz, after having been found guilty for abduction and committing brutal murder of deceased namely, (1) Nadeem Abbasi and (2) Bilal, have been convicted and sentenced as under:- "Under Section 302 (b) P.P.C to death as Ta zir with a fine of Rs.10,00,000/- each, payable to legal heirs of both the deceased under Section 544-A Cr.P.C or in default to suffer further three (03) years S.I. Under Section 364 P.P.C to life imprisonment with a fine of Rs. 2,00,000/- each or in default to suffer further six (06) months S.I. Under Section 365 P.P.C to seven (07) years SI with a fine of Rs.50,000/- each or in default to suffer further three (03) months S.I. All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C."

2. According to the prosecution version, on 13.01.2017 at 18:20 hours, the complainant, Sabir Sultan (PW-04), lodged a report through Daily Diary No. 21 (Ex.PW-4/1), alleging that his son, Nadeem Abbasi (deceased then alive) had sold his Suzuki vehicle two (02) days prior. Since 16:00 hours on 12.01.2017, Nadeem had gone somewhere with his friend Bilal (deceased then alive) without informing anyone, and had not returned home that night. The complainant stated that despite his efforts, he could not trace their whereabouts, and both individuals' mobile phones were found switched off. He further stated that he neither had any motive nor harbored suspicion against anyone at that stage. The report was marked to AST Zanfar Khan (PW-09), who initiated an inquiry under Section 157 Cr.P.C. Subsequently, on 30.01.2017 the complainant (PW-04) submitted an application (Ex.PW-4/2) to the DPO Abbottabad, requesting for registration of an FIR against the accused namely, (1) Amjad, (2) Sajid, (3) Wajid, (4) Arif, and (5) Muhammad Iqbal. He alleged that these individuals had been previously charged in the murder case of his wife, Mst. Muslim Bibi, via FIR No. 475 dated 03.06.2014 under Sections 302 / 148 / 149 P.P.C. They had allegedly attempted to pressurize him into a compromise in that case. He further claimed that his son, Nadeem Abbasi, was lured through his friend Bilal and was either taken hostage, abducted, or killed by the said accused. On the basis of this application, FIR No. 69 (Ex.PW-7/1) was registered on 03.02.2017 under Sections 364 / 365 / 149 P.P.C. Following the investigation, one of the accused namely, Amjad, was arrested. At the time of his arrest on 03.03.2017, the Investigating Officer also apprehended his companion i.e appellant Khawar Ali from Dhaka Rakh Banda Sahib Khan, who was an absconder in FIR No. 31 dated 14.01.2017 and their arrest memos were marked as Ex.PW-11/11 and Ex.PW-11/12. According to the prosecution, based on the pointation of the accused (Ex.PW-11/13), the police recovered the dead bodies, allegedly buried near the CPEC route, on the same day i.e 03.03.2017. A recovery sketch was prepared on the spot. Injury sheets (Ex.PW-11/14-A and Ex.PW-11/14-C) of the deceased were prepared, and the bodies were sent for postmortem examination. On the following day i.e 04.03.2017, the I.O. allegedly recovered two (02) 30-bore pistols, considered the crime weapons, on the pointation of the appellants from the house of one Waqas Ahmad (not produced during the trial).

3. Upon completion of the investigation, a report under Section 173 Cr.P.C was prepared and duly submitted before the trial court. During the course of trial proceedings, the prosecution produced a total of eleven (11) witnesses in support of its case. After the prosecution concluded its evidence, the statements of the appellants and their co-accused were recorded under Section 342 Cr.P.C by the learned trial court. In their statements, they denied the charges and professed innocence, refuting all allegations leveled against them. Upon conclusion of the trial, the learned trial court acquitted the co-accused; however, the appellants were convicted and sentenced as detailed above, hence, the present appeal.

4. We have heard arguments of learned counsel for the parties as well as learned Assistant Advocate Generals and gone through the record with their valuable assistance.

5. It appears from record that initially the complainant had lodged a report about missing of his son Naveed Abbasi and his friend Bilal (deceased then alive) on 13.01.2017, whereafter on 30.01.2017 i.e after eighteen (18) days he submitted a written application to DPO for registration of FIR against the appellants and others, whereupon the FIR (Ex.PW-7/1) was registered on 03.02.2017 i.e after four (04) days of the application. Admittedly, the occurrence was unwitnessed one and there was no ocular account, thus, the prosecution case hinges upon circumstantial evidence in the shape of recovery of dead bodies of the deceased on the alleged pointation of the appellants coupled with confessional statement of one of the appellants namely, Amjad, however, it is golden principle of law that when there is no direct evidence of an offence and prosecution case pivots upon circumstantial evidence then the courts have to reappraise the entire evidence with due care and caution in order to reach at a just conclusion.

6. In the initial report, lodged on 13.01.2017, the complainant (PW-04) stated that he had neither any motive nor any doubt about anyone for kidnapping or otherwise of the deceased then alive whereas after long eighteen (18) days he submitted a written application to DPO for registration of FIR against the appellants and others with allegations that as in the murder case of his wife (Mst. Muslim Bibi) registered vide FIR No. 475 on 03.06.2014 he had been extended threats of dire consequences by the appellants' side for compromise, thus, it was none else but the appellants, who had kidnapped the appellants for pressuring him or committed their deaths. The ibid story is not at all appealable to a prudent mind, if really he had been pressurized by the appellants' side prior to the present incident then why he remained mum at the time of lodging initial report. Besides, during the course of his cross-examination when asked he admitted as correct that his wife had been murdered in the year 2014, wherein the appellants were acquitted. If they were already acquitted then how he could be pressurized for compromise, is a question looking askance. In next lines when further questioned, the complainant stated that he had not remembered the date as to when the accused party put pressure on him in the murder case of his wife. The ibid cross-examination badly put the version of complainant into doubt as the same was not found in consonance with the variety narrated in the application while nomination the appellants for commission of the offence. Furthermore, the complainant also failed to explain the reason of delayed nomination of the appellants for commission of the offence and that too without disclosing the source of satisfaction except with a plea that as he had been extended threats of dire consequences, which factum he could easily narrate in his initial report but the same was not mentioned therein. There were chances of fabricating evidence in cases that were based solely on circumstantial evidence, therefore, the court, in such cases should take extra care and caution to examine the evidence with pure judicial approach on strict legal standards to satisfy itself about its proof, probative value and reliability. When there were apparent indications of possibility of fabricating evidence by the investigating officer in making the case, the court must be watchful against the trap, which may mislead to draw a false inference and satisfy itself about the fair and genuine collection of such evidence. The failure of the court to observe such care and caution could adversely affect the proper and safe administration of criminal justice. Hence, in the case in hand, keeping in view the conduct of the complainant by not narrating the motive coupled with delayed charging of the appellants for commission of the offence, put the case of prosecution to be insufficient of circumstantial evidence by fabricating evidence in the case. In this respect reliance may here be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Naveed Asghar and 02 others v. The State" reported as PLD 2021 SC 600 where it was held as under: - "The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accused person on such conclusion; however, if such facts and circumstances can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality, it will be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence will a better and a safer course."

7. According to pointation memo (Ex.PW-11/13) prepared on 03.03.2017 in presence of Murad Javed son of Muhammad Javed and complainant (Sabir Sultan) the appellants alleged to have made pointation of the places where they had allegedly buried the dead bodies of both the deceased and in their presence the dead bodies had statedly been unearthed. No doubt both these witnesses recorded their statements under Section 164 Cr.P.C on 11.03.2017 i.e on the 8' day of pointation memo but astonishingly Murad Javed, who was brother of deceased Bilal, could not be produced by the prosecution during trial so as to strengthen its case, meaning thereby that nomination of the above referred witnesses at the time of pointation by the appellants was nothing but just to fill in the blanks or at the instigation of complainant party because despite presence of number of independent witnesses none from the locality was associated with the pointation process. In absence whereof, pointation memo, containing unearthing of dead bodies of the deceased, lost its efficacy and no weight could be given to it under the law. It is important to be noted that the pointation memo was not of simple nature but containing dead bodies of both the deceased, thus, in such eventuality non-association of independent witnesses to such pointation memo badly affected the case of prosecution. Besides, associating father and brother of the deceased also raises finger towards another presumption that the police had already recovered the dead bodies of both the deceased but just to fabricate evidence in the case solely, based on circumstantial evidence, the appellants were shown to have pointed out the places of burial of both the deceased.

8. Another prominent aspect of the matter is that as per pointation memo (Ex.PW-11/13) the I.O had discovered the dead bodies of both the deceased on the pointation of appellants in presence of the complainant (PW-04) and another witness (not produced at the trial), however, the complainant (PW-04) during his examination-inchief stated that on 03.03.2017 the appellants while in handcuffs brought to the village Khokhar Maira and then they pointed out the place from where they had abducted both the deceased and then murdered them, followed by burying them in the soil of CPEC. The complainant further stated that both the appellants led the police party to the place situated within the vicinity of village Banda Sahib Khan and pointed the soil of CEPEC by disclosing that they had buried both the deceased after committing their murders. Similarly, during his cross-examination the complainant when questioned also deposed that he along with other co-villagers were present at the place of recovery / discovery when the appellants were brought in handcuffs and on their pointation the dead bodies were recovered. Here a question arises that who informed the complainant and his other co-villagers about recovery / discovery of dead bodies of the deceased and whether the presence of the complainant or relatives of the deceased at the time of recovery of dead bodies at the pointation of the accused affects the admissibility or evidentiary value of such discovery under Article 40 of the Qanun-e-Shahadat Order, 1984. If there is no plausible explanation as to how the complainant came to know the exact time and place of pointation/recovery, it may cast doubt on the naturalness and credibility of the recovery proceedings. Besides, the presence of the complainant and brother of the deceased at that moment, without any plausible explanation, raises a presumption that they had prior knowledge of the place or proceedings, which may suggest collusion or foreknowledge. If the investigating officer fails to provide a plausible explanation for their presence, it may affect the credibility of the recovery but not its admissibility per se under Article

40. In identical matter the Hon'ble Supreme Court of Pakistan while mentioning essential requirement of Article 40 of the Qanun-e-Shahadat has held in the case of "Mst. Askar Jan v. Muhammad Daud" reported as 2010 SCMR 1604 as under: - "How much of information received from accused may be proved. Essentials: Firstly, there should be an information or statement of the accused whether it may be confession or otherwise and that too when he was in police custody and; secondly on the basis of such information or statement of some fact is discovered. If there is no statement of the accused or information given to the police, which is an essential requirement of Article 40 of the Qanun-e-Shahadat, 1984, then the subsequent discovery would become inconsequential." Further reliance in this respect also may be placed on the judgments delivered in the case of "Hayatullah v. The State" reported as 2018 SCMR 2092 and in the case of "Zafar Ali Abbasi v. Zafar Ali Abbasi" reported as 2024 SCMR 1773.

9. As per injury sheet (Ex.PW-11/14-A) one firearm injury was found on left side of chest on the person of deceased Nadeem while one firearm injury was found on the left side of back whereas according to Dr. Asad Ali Shah (PW-10) he had found three (03) wounds on the person of deceased i.e. (1) firearm entry wound on the left anterior chest near left nipple about 1/2 x 1/2 cm (2) A firearm exit wound on the back of chest size 2 x 2 cm (3) An entry and exit wounds on right forearm near elbow joint", meaning thereby that the injury sheet was not found in line with the postmortem examination of deceased Nadeem, which aspect of the case badly affected the prosecution case, benefit of which must goes to the appellants.

10. There were two types of circumstantial evidence, one was discussed earlier i.e. recovery of dead bodies on the pointation of appellants while the other is confessional statement recorded by one of the appellants namely, Amjad. So far as confessional statement of appellant i.e. Amjad is concerned, no doubt he during his short confessional statement admitted commission of the offence by narrating therein that some 2 / 3 days prior both the deceased had opened firing upon them and then after 2 / 3 days they met with the deceased, thus, they kidnapped them and took to Banda Sahib Khan, where motorway work was in progress, thus, they fired and buried them there and then, however, the moot point for consideration before the court is that whether the confessional statement, recorded by the appellant, had complied with standards of legal confession or otherwise? A glance over the alleged confessional statement recorded by appellant (Amjad) divulges that undeniably he had admitted commission of the offence along with his co-appellant, wherein he had attributed the role of firing to himself as well as to his co-appellant upon the deceased but his statement was found fully silent to the extent of recovery and discovery, allegedly made on joint pointation of the appellants. Keeping in view the very short narration of confession by not even mentioning the solid reason for committing the crime, the confession was neither voluntary nor truthful in nature as according to certificate annexed with the confessional statement, the learned Judicial Magistrate (PW-05) did not mention that specific time was provided to him for thinking over the recording of confessional statement. Besides, as is evident from the certificates annexed with the confessional statements that the accused was handed over back to Naib Court after recording his statement. Nothing could be brought on record to show that whether the appellant was medically examined before and after recording confessional statement, which procedure was mandatory under the High Court Rules and Police Rules. It is also necessary to be noted that both the appellants, after their arrest, had remained in police custody for long seven (07) days as they were arrested in the case on 03.03.2017 and on 10.03.2017 the appellant (Amjad) had statedly confessed his guilt, thus, possibility of use of third degree tactics by the police cannot be ruled out of consideration. The prime consideration for admissibility of a judicial confession is its voluntary nature and secondly the truth it contains. A slightest doubt about the judicial confession having been made involuntarily is destined to discard it. The importance of voluntary nature of confession stands reflected from the legislative wisdom behind Articles 37, 38 and 39 of Qanun-e-Shahadat Order, 1984. It evinces from the above quoted Articles that the confession of accused either made due to inducement, threat, promise or made in police custody is inadmissible. Reliance in this respect may here be placed on the judgment delivered in the case of "Muhammad Pervez and others v. The State" reported as 2007 SCMR 670 wherein it was held as under: - "In case all the facts are put in a juxtaposition, then it is crystal clear that confessional statement was recorded after five days as the appellant Pervez was remained in the custody of the local police. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law aid down by this Court in Naqeebullah's case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement. This fact created doubt qua the confessional piece of evidence. See Khan Muhammad's case 1981 SCMR

597. It is no doubt that mere delay of 24 hours in recording the confessional statement is not fatal but surrounding circumstances are also to be considered qua believing or not believing the confessional statement. The circumstances in view of the statement of D.W.1 and D.W2 show that the appellants were tortured by the local police, therefore, Courts below were not justified to come to the conclusion that confessional statement was voluntarily made by the said appellants. It is admitted fact that after recording the confessional statement of the appellants was handed back to the police. Such type of confession keeping in view the peculiar circumstances highlighted hereinabove appears to be irrelevant as law laid down by this Court in Khuda Bakhsh's case 1969 SCMR

390. It is an admitted fact that convict remained in police custody before and after recording confessional statement for 24 hours and the Magistrate, had taken only one hour to record the confession of the convict. Such type of confession would not fall in the category of voluntary confession." Apart from the above, the accused had subsequently retracted the confession. Keeping in view the conflict with the other pieces of evidence, brought on record, the retracted confession of the accused had lost its evidentiary value and legal efficacy, hence, it was absolutely unsafe to rely on it and that too for recording punishment on a capital charge. Besides, on one hand during the course of his examination-in-chief the complainant alleged that the appellants were charged for the murder of his wife in case FIR No.475 wherein he had been extended threats of dire consequences for compromising the matter, while on the other hand when questioned neither he could mention about the date and time of persuading him for compromise rather admitted in his cross that in the referred FIR the appellants had earlier been acquitted. Furthermore, the Judicial Magistrate while appearing in the witness box as PW-05 during his cross-examination admitted that the appellants were produced before him on the said date in three (03) cases i.e in case FIR No. 69 (instant case) in case FIR No. 475 and in case FIR No. 31 and in all the cases the appellant had confessed his guilt. No doubt under the law an accused can record multiple statements on the same date in different cases but in such situation standards and procedure, provided by law, for a truthful confession cannot be complied with, as discussed earlier. All these discrepancies and lacunas if taken in juxtaposition with each other, the retracted confessional statement appears to be of no credence. In this respect reliance is placed on the judgment delivered by Hon' ble Supreme Court of Pakistan in the case of "Hashim Qasim v. The State" reported as 2017 SCMR 986 where it was held as under: - "Keeping in view the above conflict with the other pieces of evidence, brought on record, the retracted confession of the accused has lost its evidentiary value and legal efficacy, thus, it would be absolutely unsafe to rely on it and that too for recording punishment on a capital charge."

11. The superior Courts since long have laid down stringent principles for placing reliance on circumstantial evidence by observing that in the cases involving capital punishment, such evidence shall be of the nature, where, all circumstances must be so inter linked, making out a single unbroken chain, where one end of the same touches the dead body and the other neck of the accused, whereas any missing link in the chain would destroy the whole prosecution case and would render the same unreliable for recording a conviction. Reliance in this respect is placed on the judgment rendered by Hon'ble Supreme Court of Pakistan in the case of "Hashim Qasim and another v. The State" reported as 2017 SCMR 989 where it has been held as under: - "Keeping in view the above, the case of the prosecution appears to have been based entirely on circumstantial evidence. Placing reliance on circumstantial evidence, in cases involving capital punishment, the superior Courts since long have laid down stringent principles for accepting the same. It has been the consistent view that such evidence must be of the nature, where, all circumstances must be so inter-linked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. Any missing link in the chain would destroy the whole and would render the same unreliable for recording a conviction on a capital charge. Reference is made to the cases of Muhammad Aslam v. The State (PLD 1992 SC 254) and Ch. Barkat Ali v. Major Karam Elahi Zia (1992 SCMR 1047)." Further reliance in this respect may also be placed on the judgments delivered by Hon'ble Supreme Court of Pakistan in the case of "Azeem Khan and another v. Mujahid Khan and others" reported as 2016 SCMR 274 and in the case of "Akhtar v. The State" reported as 2020 SCMR 2020.

12. No doubt as per recovery memo the I.O had also taken into possession one plus one crime empty of 30-bore pistol from the places of each appellant on 03.03.2017, whereafter on the pointation of appellants he had also recovered two (02) crime weapons i.e. 30-bore pistols from the house of one Waqas on 04.03.2017, whereafter the I.O drafted application for sending both the recovered empties and weapons to FSL on 21.03,2017 i.e after seventeen (17) days. A glance over the FSL, report divulges that no doubt report in respect of the recovered crime empties and weapons i.e. 30-bore pistols was found in positive, however, intriguing aspect of the matter is that the crime empties were shown to have been recovered from the spot on 03.03.2017, followed by recovery of weapons of offence on pointation of the appellants on 04.03.2017 and the same was received in the FSL on 21.03.2017 i.e. after considerable delay of seventeen (17) days. In such eventuality a question of safe custody of the case property would also arise that where the same were lying during the intervening period, for which no explanation whatsoever could be offered by the prosecution. In support, case law reported as "Muhammad Younus Khan v. The State" 1992 SCMR 545, "Jehangir v. Nazer Farid and another" 2002 SCMR 1986 and "Ghulam Akbar and another v. The State" 2008 SCMR 1064 can well be referred. It is also well settled that delayed sending of case property to FSL would depreciate the evidentiary value of such piece of evidence rendering it unsafe to be relied upon. Therefore, no reliance can be placed on the positive FSL report as the possibility of substitution of the empties as well as crime weapons cannot be ruled out. Delay of seventeen (17) days in sending the empties and weapons of offence to FSL definitely destroyed the evidentiary value of the recoveries. In such like situation the Hon'ble Supreme Court of Pakistan while delivering its judgment in the case of "Ali Sher and others v. The State" reported as 2008 SCMR 707 has held:- "The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony." Further reliance in this respect may also be placed on the judgment delivered in the case of "Mir Ahmad Shah v. The State and another" reported as 2013 YLR 982.

13. From the above discussed evidence, it has become clearer than crystal that case of the prosecution is full of doubts and while acquitting an accused even a single reasonable doubt is sufficient. Reliance in this respect may be placed on the judgments delivered by the Hon'ble Supreme Court of Pakistan in the cases reported as 1997 SCMR 449 and 2007 SCMR 1825. Further reliance in this respect may also be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Muhammad Akram v. The State" reported as 2009 SCMR 230 where it has been held; "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

14. In view of what has been discussed hereinabove, we are of the firm view that prosecution has miserably failed to establish its case against the appellants. Resultantly, on allowing this appeal, benefit of doubt is extended to the appellants and they are accordingly acquitted of the charges levelled against them. They be set at liberty forthwith, if not required in any other case. The Murder Reference, sent by learned trial Judge confirmation of death sentence is, thus, answered in the negative. These are the detailed reasons for our short order of even date. JK/223/P Appeal allowed.