IN THE SUPREME COURT OF PAKISTAN 
              (APPELLATE JURISDICTION) 
 
PRESENT: 
MR. JUSTICE EJAZ AFZAL KHAN. 
MR. JUSTICE QAZI FAEZ ISA.  
MR. JUSTICE MAQBOOL BAQAR.  
 
CRIMINAL APPEAL NO. 178-L OF 2009.  
 (On appeal against the judgment dated 
30.04.2009 passed by the Lahore High Court, 
Lahore in Criminal Appeal No. 739 of 2006 
and M. R. No. 69-T of 2006).  
 
Nasir Javaid and another.   
 
 
 
…Appellant(s) 
 
VERSUS 
The State. 
 
 
 
 
 
 
…Respondent(s) 
 
 
For appellant No. 1: 
 
Syed Iftikhar Hussain Gillani, Sr. ASC  
 
For appellant No. 2: 
 
Mr. Jalees Ahmed Meer, ASC. 
 
For the State : 
 
 
Ch. Zubair Ahmed Farooq, Addl. P. G. Pb. 
 
Date of Hearing:  
 
15.03.2016 (Judgment Reserved) 
 
J U D G M E N T 
 
 
 
EJAZ AFZAL KHAN, J.- This appeal with the leave of the 
Court has arisen out the judgment dated 30.04.2009 of a Division 
Bench of the Lahore High Court, Lahore whereby it dismissed the 
appeal filed by the appellants and answered the Capital Sentence 
Reference No. 69 of 2006 in the affirmative.  
2. 
 
Brief facts of the case, as can be culled from the FIR and 
the statements of the PWs recorded in the Court are that on 
23.09.2004 at about 1:30 PM, Husnain Riasat a son of the complainant 
who was 4 years old left his house to purchase toffees but did not 
come back. The complainant went far and wide in search of his son, 
made announcements on loudspeakers of the mosques and also 
reported the matter in Police Station, Dhulla, District, Gujranwala but 
CRIMINAL APPEAL NO. 178-L OF 2009 
2 
of no avail. On the night intervening 24 and 25.09.2004 when the 
complainant alongwith his brother while searching Husnain Riasat, 
reached a street adjoining his residential house, he noticed a nylon 
bag lying near the gate of his factory wherefrom blood was oozing. 
The brother of the complainant on opening the bag found the dead 
body of the latter’s son soaked in blood. It was without footwear. 
“Asif is a dog; it is the result of his cruelty; my blood boils when I see 
him” were the words written on the bag. Nasir Javed and Qaisar 
Javed the appellants alongwith their two brothers, Tariq Javed and 
Asif Javed, the acquitted co-accused, were charged for committing 
the gruesome murder in a case registered against them under 
Sections 302/34/364A PPC and 7(a) ATA vide FIR No. 318 of 2004 
dated 23.09.2004 at Police Station Dhulla, District Gujranwala. The 
motive for the occurrence is that the complainant supported one 
Muhammad Nadeem in a case of murderous assault registered 
against Nasir Javed appellant and purchased a shop the latter was 
working in, which also resulted in exchange of threatening words in 
between the complainant and the appellants a few days before the 
occurrence.  
3. 
 
   During the course of investigation the appellants and 
their acquitted co-accused were found linked with the commission 
of the crime. After the completion of investigation, they were 
forwarded to the Court of the learned Judge Anti-Terrorism Court No. 
1, Gujranwala for trial who on its conclusion convicted and 
sentenced the appellants to death on three counts under Section 
364-A, 34, 302(b) PPC and 7(a) ATA and to pay compensation of one 
lac each or in default to undergo six months S.I., acquitted the co-
accused vide judgment dated 25.4.2006 and sent the capital 
CRIMINAL APPEAL NO. 178-L OF 2009 
3 
sentence reference to the High Court for its confirmation. The 
appellants preferred an appeal before the High Court against the 
conviction and sentence which was dismissed while the capital 
sentence reference was answered in the affirmative.  
4. 
 
Learned ASC appearing on behalf of the appellants 
contended that the occurrence is blind and un-witnessed; that the 
circumstantial evidence collected during the course of investigation 
does not form a chain as could link the appellants with the crime; 
that the last seen evidence, appears to be concocted because of its 
belated appearance; that the evidence relating to disposal of the 
dead body at 11:00 PM near the workshop also appears to be 
concocted when no source of light near or around the place has 
been indicated in the site plan nor any recovery thereof has been 
made. Extra-judicial confessions, the learned ASC argued, have 
been attributed to the appellants and the acquitted co-accused but 
they being of weak probative worth cannot be used as either 
evidence or corroborative of the charge, that too, when no reason 
much less plausible has come forth for making such confession 
before Ghulam Ahmed, Basharat Ali and Muhammad Zaman. 
Discoveries so called, the learned ASC argued, cannot boost up the 
case of the prosecution when none of the pieces of evidence 
commands credence.  
5. 
 
Learned ASC appearing on behalf of the respondents 
contended that motive, last seen evidence, extra-judicial confession, 
recoveries and evidence relating to disposal of the dead body not 
only form a chain but connect the appellants with the dead body of 
the deceased. He next contended that these pieces of evidence 
when linked together rule out the hypothesis of innocence of the 
CRIMINAL APPEAL NO. 178-L OF 2009 
4 
appellants, therefore, both the Courts have rightly convicted and 
sentenced them. Such finding, the learned ASC maintained, being in 
line with the principles laid down by this Court for appraisal of 
evidence in criminal cases is not open to any exception.  
6. 
 
We have gone through the entire record carefully and 
considered the submissions of the learned ASCs for the appellants as 
well as the learned Addl. P. G. Punjab for the State.  
7. 
 
   This case, so to speak, hinges on circumstantial 
evidence. What tempts the Court to believe this type of evidence is 
the maxim that men may lie but circumstances don’t. We don’t nor 
can we doubt and dispute its centuries old well tested wisdom. We 
rather use it as a touchstone for assessing and evaluating the 
evidentiary worth of the circumstantial evidence. It enables us to 
reason unknown from the known if the circumstances are reported 
fairly and faithfully. Deduction about the guilt of the accused could 
well be drawn from the circumstances as are well authenticated. But 
where the circumstances so reported are tinkered and tampered 
with, or contrived and conjured up, they cannot be accepted 
without careful and critical analysis. Circumstantial evidence can 
form basis of conviction if it is incompatible with the innocence of the 
accused and incapable of explanation upon any other reasonable 
hypothesis than that of his guilt. This case thus has to be analyzed 
and adjudged in this perspective.  
8. 
 
The first significant piece of evidence in this case is 
motive. The motive for the occurrence is that the complainant 
supported one Muhammad Nadeem in a case of murderous assault 
registered against Nasir Javed appellant and purchased a shop the 
latter was working in, which also resulted in exchange of threatening 
CRIMINAL APPEAL NO. 178-L OF 2009 
5 
words in between the complainant and the appellants a few days 
before the occurrence. The statement that the complainant 
supported the said Muhammad Nadeem remained unproved. In 
case it is true, it was not of a nature as could drive the appellants to 
go to such an extreme when the matter between the said 
Muhammad Nadeem and the appellant Nasir Javed ended in a 
compromise? How could purchasing of the shop incense any of the 
appellants to commit such a gruesome crime, when the shop was 
admittedly purchased by Muhammad Arif, a cousin of the 
complainant? When, where and in whose presence the appellants 
exchanged the threatening words with the complainant remained 
unproved and unsubstantiated. We, thus, don’t think such a tragic 
incident could be a fall out of a motive of this type.  
9. 
 
The other evidence in the sequence is that of last seen 
which has been furnished by PW-11. According to this witness, he 
and Mohammad Akhtar the abandoned PW saw the deceased in 
the company of the appellants on a motorbike at 2:00 PM on the 
day of occurrence. But strangely enough he did not inform the 
complainant about this episode nor did he report it, notwithstanding, 
disappearance of the child became talk of the town on the same 
day on account of its having been proclaimed through the 
loudspeakers of the mosques in the village. When questioned as to 
why he remained silent for three days, he replied that he went to 
Lahore. Accepted, for a while that he went to Lahore and came 
back three days later. But what about Muhammad Akhtar who did 
not go anywhere? Why did he choose to be silent? We don’t find 
any answer to the aforesaid questions. The story of going to Lahore is 
thus nothing but a lie to lend crutches to another lie. The PW stated 
CRIMINAL APPEAL NO. 178-L OF 2009 
6 
that he saw the deceased sandwiched in between the appellants 
on a motorbike from the shop of Abdul Razzaq. What business this 
witness had in the village when he is a landlord of village Alipur 
Chatha and Hafiz Abad. He stated that he came to the Dairy Form 
of Zafarullah to purchase a buffallow but he was not available. Did 
he meet anybody on the Dairy Form? Did he inquire from anybody 
about Zafarullah? If not how did he come to know that Zafarullah 
was not available? Answers to these questions and examination of 
the person informing him about Zafarullah could have proved his 
presence in the village but his failure to answer the questions 
mentioned above and failure on the part of the prosecution to 
examine the witness would negate his presence in the village. Given 
that he was in the village, what brought him to the shop of Abdul 
Razzaq? His reply was that Muhammad Akhtar wanted to purchase 
cigarettes. But neither Muhammad Akhtar nor Abdul Razzaq has 
been examined as PWs.  Their examination could have established 
the presence of the PW and his companion in the shop but failure on 
the part of prosecution to examine them not only belied his presence 
in the shop but also gave rise to an adverse inference against it 
under Article 129(g) of the Qanoon-e-Shahadat Order, 1984. Given 
that he was present in the shop of Abdul Razzaq, but how could he 
see the deceased and the appellants when according to the site 
plan, gate of the house of the appellants as well as the street across 
it are not visible from the shop. He craned his presence to the 
veranda of the shop and then to the corner of the street but this 
addition appears to be an afterthought as neither the veranda nor 
the corner of the street has been indicated in the site plan. Given 
that street as well as the gate were visible from the shop, but what 
CRIMINAL APPEAL NO. 178-L OF 2009 
7 
was that extraordinary or unusual which attracted the PW to watch 
the events with such an amount of keenness particularly when it is 
not the case of the prosecution that the child was crying or resisting 
his carriage on the motorbike. Why should the appellants carry the 
child so openly on a motorbike and thereby expose their identity 
when their ultimate aim was to do away with him? Both the 
questions, in the absence of any explanation, raise serious doubt 
about the veracity of the witness. Testimony of this witness with all his 
deftness and dexterity does not inspire confidence. We, therefore, 
don’t feel inclined to place any reliance thereon.  
10. 
 
Then comes the evidence relating to disposal of the bag 
containing the dead body of the child. PW-10 furnished the 
evidence of this episode. According to the PW, he visited workshop 
of Muhammad Riaz situated at Mohallah Tufail Town, Rajkot District 
Gujranwala at 11:00/11:15 p.m. but the workshop was closed. He, 
thus, went to the residence of Muhammad Riaz which was lying on 
the back of the workshop. He after knocking at the door of the 
residence was waiting for the response, that he saw the appellants 
on a motorbike dispose of a nylon bag. The statement accounting 
for the presence of the witness at the alleged place of disposal of 
the dead body of the child is not free from doubt when there is 
absolutely nothing in the statement to show any emergency 
necessitating such a dash to the workshop located at a distance of 
38/40 kilometers, at such odd hours, notwithstanding, the desired 
spare parts could be had from the nearby market on the following 
day. How could he see and identify the appellants when the tube-
lights which were allegedly lit at the relevant time have not been 
indicated in the site plan nor have they been recovered. The 
CRIMINAL APPEAL NO. 178-L OF 2009 
8 
testimony of this witness appears to be unnatural and even 
unconformable to common human experience and observation and 
thus does not inspire confidence. We, therefore, leave it out of 
account.  
11. 
 
Next is the evidence of extra-judicial confessions. 
Evidence of this type because of its being concocted easily is always 
looked at with doubt and suspicion. It could be taken as 
corroborative of the charge if it, in the first instance, rings true and 
then finds support from other evidence of unimpeachable 
character. If the other evidence lacks such attribute, it has to be 
excluded from consideration. Extra-judicial confessions of the 
appellants when examined in this light neither ring true nor agree 
with truth nor fit in with the surrounding circumstances of the case. 
The circumstances disclosed therein that the complainant made 
their lives miserable, implicated them in criminal cases and insulted 
their mother are not supported by the prosecution evidence. 
According to the statement of PW-13, the appellants were driven by 
their immense sense of guilt to make extra-judicial confessions. But 
why should they make extra-judicial confessions before PW-13, who 
being closely related to the complainant was expected to do them 
more harm than good. Why should they make such confessions 
before the said witness who did not hold any authority nor did he 
wield any influence as could hold out any hope to the appellants 
and thereby tempt them to make any confessions. We don’t find any 
answer to the aforesaid questions nor any other justification for 
believing them. We are rather amazed to note as to why did the Trial 
Court and the Court of Appeal believe the extra-judicial confessions 
of the appellants and discard those of the acquitted co-accused. 
CRIMINAL APPEAL NO. 178-L OF 2009 
9 
Notwithstanding all of them suffering from alike infirmities deserve 
alike treatment. We don’t find any plausible reason to treat them 
differently. We, thus, hold that the extra-judicial confessions are not 
worthy of reliance and cannot be taken even as corroborative of the 
charge.  
12. 
 
The medical evidence, too, does not support the 
prosecution version as the swelling on the anus of the victim has not 
been accounted for. This injury on the face of it would tend to point 
the accusing finger to some maniac or sadist who derives pleasure 
from an act of this type. Withholding of the original report of the 
chemical analysis would give added strength to the inference. We, 
therefore, don’t think the medical evidence supports the prosecution 
version. 
13. 
 
The last piece of evidence consists of recoveries. This 
evidence at its best can be taken as corroborative rather than 
evidence of the charge. The reason is that it, per se does not name 
or nominate any accused, nor does it prove or point to his guilt. It 
simply supplements the other evidence on the record, if it, in its own 
rights, inspires confidence. Having thus analyzed, the evidence of 
recoveries does not inspire confidence as the witnesses attesting 
them being closely related to the complainant are highly interested. 
Such recoveries also appear to be contrived and conjured up when 
nothing incriminating came forth, pursuant to the first raid of the 
appellants’ house made soon after the occurrence and then 
everything incriminating so-called popped up from the same places 
of the house pursuant to another raid made 10/15 days later. The 
evidence of recoveries against this background has little evidentiary 
worth. So is the case with the evidence of the handwriting expert 
CRIMINAL APPEAL NO. 178-L OF 2009 
10 
whose opinion, that specimen handwritings have been executed 
cautiously and consciously, not only speaks for itself but takes it far off 
precision and accuracy. This is but natural because the techniques 
of this branch of expertise have not been perfected to a level where 
opinion based on comparison could be treated as unerring and 
infallible. It thus follows that none of the pieces of evidence discussed 
above, either individually or collectively, is compatible with the guilt 
of the appellants nor is it incapable of explanation on any other 
reasonable hypothesis than that of the guilt of the appellants. It 
would not thus be safe to maintain the finding of conviction on this 
evidence.       
14. 
 
For the reasons discussed above, we allow this appeal, 
set aside the conviction and sentence of the appellants and acquit 
them of the charges. They be set free forthwith, if not required in any 
other case.  
  
 
 
 
 
 
 
 
 Judge 
 
Judge 
 
Judge 
 
Announced in open Court at Islamabad on ________________ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
‘Not approved for reporting’ 
M. Azhar Malik