2026 P Cr. L J 609

 2026 P Cr. L J 609

[Balochistan]

Before Muhammad Ayub Khan Tareen and Iqbal Ahmed Kasi, JJ

SANAULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 297 and Criminal Revision Petition No. 28 of 2024,

decided on 24th July, 2025.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 364-A, 377 & 34---Qatl-i-amd, kidnapping or abducting a

minor for murder, unnatural offence, common intention---

Appreciation of evidence---Delay of 22 days in lodging the FIR

plausible and justifiable---Accused was charged for abducting the

son of complainant, committing unnatural offence and murdering

him---Prosecution case was that the minor deceased went missing on

July 25, 2021, and the FIR was registered on August 16, 2021, after

the body was recovered---Complainant stated that he reported the

matter on the same day (July 25, 2021); however, the FIR was not

registered because there was no photograph of the minor---During

cross-examination, the complainant provided a reasonable

explanation for the delay in registering the FIR, stating that he had

initially approached the police station, however FIR was only

recorded after the body was recovered---Thus, it could be inferred

that the illiterate complainant, unfamiliar with legal procedures,

was unaware of the consequences of not registering the FIR---

Considering other circumstantial and incriminating evidence, the

delay in lodging the FIR appeared plausible and justifiable---Appeal

against conviction was dismissed, in circumstances, however, the

revision petition filed by the complainant for enhancement of

sentence was allowed by enhancing the sentence from life

imprisonment to capital punishment of death.

Ghulam Husain Soomro v. The State PLD 2007 SC 71 and Muhammad

Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 364-A, 377 & 34---Qatl-i-amd, kidnapping or abducting a

minor for murder, unnatural offence, common intention---

Appreciation of evidence---Last seen evidence---Scope---Accused was

charged for abducting the son of complainant, committing

unnatural offence and murdering him---In the present case, the theory of last saw was pivotal in establishing the guilt of the

accused, in the murder of the minor---Prosecution witnesses

testified that they last saw the accused in the graveyard of their

village, where he was engaged in the suspicious and unnatural act of

digging a grave to bury the deceased---Deceased's dead body was

wrapped in a Sindhi Ajrak, and the circumstances surrounding the

burial raised significant doubts about the accused's intentions---

Proximity of time and place between the last sighting of the accused

with the deceased and the subsequent discovery of the body by the

accused, created a compelling inference that accused was involved

in the crime for which he could not utter a plausible justification---

Witnesses, being chance observers, provided corroborative evidence

that strengthened the prosecution's case, as the last seen theory

necessitated that the accused must offer a plausible explanation for

his actions during that critical time---Further, the burden of proof

might shift to the accused to provide a reasonable explanation for

his presence and actions during the time he was seen with the dead

body---Given the lack of any reasonable explanation from the

accused regarding his presence at the graveyard with the deceased,

coupled with the fact that the accused tried to escape, the evidence

of last seen together served as a crucial link in the chain of

circumstantial evidence, supporting the conviction of accused for

the murder of minor deceased---Appeal against conviction was

dismissed, in circumstances, however, the revision petition filed by

the complainant for enhancement of sentence was allowed by

enhancing the sentence from life imprisonment to capital

punishment of death.

Abdus Samad v. The State PLD 1964 SC 167; Munshi and another v.

the State PLD 1971 Lah. 781 and Qaisar Mehmood and another v. The

State 2021 SCMR 662 rel.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 364-A, 377 & 34---Qatl-i-amd, kidnapping or abducting a

minor for murder, unnatural offence, common intention---

Appreciation of evidence---Motive not proved---Accused was charged

for abducting the son of complainant, committing unnatural offence

and murdering him---In the present case, the absence of an

established motive did not undermine the prosecution's case against

the accused---Lack of motive or the prosecution's inability to prove

motive does not preclude the imposition of the normal penalty of

death if the prosecution has otherwise successfully established its

case against the accused---Motive "shrouded in mystery" does not

serve as a mitigating circumstance for reducing the sentence---

Therefore, the prosecution's case remained robust despite the lack of

a clearly defined motive, supporting the argument for a conviction based on the evidence at hand---Appeal against conviction was

dismissed, in circumstances, however, the revision petition filed by

the complainant for enhancement of sentence was allowed by

enhancing the sentence from life imprisonment to capital

punishment of death.

Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453; Mukhtar

Ahmad and others v. The State PLD 2004 SC 563; Muhammad Saeed v.

Haq Nawaz Khurram and 2 others PLD 2008 SC 416 and Khurram Malik

and others v. The State and others PLD 2006 SC 354 rel.

(d) Criminal trial---

----Circumstantial evidence---Scope---In the absence of direct

evidence, a conviction can be secured if the chain of circumstantial

evidence remains unbroken, directly linking the commission of the

offence to the accused.

(e) Penal Code (XLV of 1860)---

----Ss. 302(b), 364-A, 377 & 34---Qatl-i-amd, kidnapping or abducting a

minor for murder, unnatural offence, common intention---

Appreciation of evidence---DNA evidence---Circumstantial evidence--

-Reliance---Accused was charged for abducting the son of

complainant, committing unnatural offence and murdering him---

Record showed that the testimonies of three witnesses, while not

eye-witnesses, were significant as they confirmed that on July 25,

2021, the deceased went missing---Said witnesses learnt about the

discovery of a dead body in the hospital mortuary through the

police and subsequently identified the deceased---Evidence

regarding the disappearance of minor and the subsequent discovery

of his body, as revealed by the star witnesses, had been found to be

reliable and trustworthy, with their natural presence at the scene

further corroborating their accounts---Additionally, the statement of

Medical Officer, the Police Surgeon, along with the post-mortem

report of deceased and the Medico-Legal Certificates of the

accusedand co-accused provided critical insights---Police Surgeon

opined that the deceased had been subjected to forcible carnal

intercourse and subsequently murdered with a blunt weapon---

Furthermore, Medical Officer confirmed that accused could perform

sexual intercourse and was medically potent---Testimonies of the

remaining witnesses and the DNA result and its conclusion, showed

that seminal material was found on anal swab of deceased, stained

sections taken from shalwar qameez of deceased, and human blood

was identified on stained sections taken from shalwar of appellant---

DNA profile obtained from sperm fractions of items Nos. 1, 4.1, 4.5,

4.10, epithelial of item Nos. 1 and 4.5 matched the DNA of appellant--

-Probability of finding an unrelated individual at random from the population as being the source of DNA obtained from sperm fraction

of item Nos. 1, 4.1, 4.5, 4.10, epithelial fractions of item Nos. 1 and

4.5 was approximately one in 64 sextillion in caucasians---Evidence

presented collectively supported the prosecution's case, establishing

a coherent chain of circumstantial evidence that remained intact---

Appeal against conviction was dismissed, in circumstances,

however, the revision petition filed by the complainant for

enhancement of sentence was allowed by enhancing the sentence

from life imprisonment to capital punishment of death.

Qaisar Mehmood and another v. The State 2021 SCMR 662; Hamid

Mahmood and another v. The State and another 2013 SCMR 1314;

Laxman Naik v. State of Orisa AIR 1995 SC 1387 and Muhammad Latif

v. The State PLD 2008 SC 503 rel.

(f ) Penal Code (XLV of 1860)---

----Ss. 302(b), 364-A, 377 & 34---Qatl-i-amd, kidnapping or abducting a

minor for murder, unnatural offence, common intention---

Appreciation of evidence---Sentence, enhancement of---Accused was

charged for abducting the son of complainant, committing

unnatural offence and murdering him---In the present case, to the

extent of considering mitigating circumstances, and in light of the

established facts surrounding the case of the accused, it was

imperative to enhance the punishment from life imprisonment to

the death penalty, keeping in view the gruesome and shocking act of

the accused---Trial Court's decision to impose a lesser sentence

based on vague reasons could not be justified, as such

considerations did not constitute valid mitigating circumstances---

Awarding a lesser punishment on flimsy grounds, such as those

mentioned in the impugned judgment, effectively granted

individuals a license to commit heinous acts without fear of

appropriate repercussions---Furthermore, the accused had failed to

provide credible evidence to substantiate and draw any inference in

connection with the offence, which would warrant leniency---

Therefore, the normal penalty for murder should be death when the

prosecution had proven its case beyond a reasonable doubt---It was

just and necessary to impose the death penalty on accused to uphold

the rule of law and deliver justice for the grievous crime committed

against the innocent minor---Additionally, the theory of deterrence

was a factor to be taken into consideration, while awarding the

sentence specially the sentence of death---In the case of accused, it

was clear that the accused did not deserve any leniency as granted

by the Trial Court---Facts surrounding this case demonstrated that

the murder was both deliberate and premeditated and shocking,

leaving no room for mitigating circumstances that would warrant a

lesser sentence---Leniency shown in this case, where it was not deserved, constituted a serious dereliction of the Court's duty to

administer justice---Therefore, under the established legal

principles, the Court must impose the maximum penalty of death,

reflecting the seriousness of the crime committed and the necessity

for justice to be served without undue leniency---Appeal against

conviction was dismissed, in circumstances, however, the revision

petition filed by the complainant for enhancement of sentence was

allowed by enhancing the sentence from life imprisonment to

capital punishment of death.

Muhammad Aslam Sajjan v. Liaqat Ali and others 1998 SCMR 1555;

Hamid Mahmood and another v. The State and another 2013 SCMR

1314; Khurram Malik and others v. the State and others PLD 2006 SC

354; Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 and

Emperor v. Nga Tha Hmwe and others AIR 1935 Rang 504 rel.

(g) Penal Code (XLV of 1860)---

----Ss. 302(b), 364-A, 377 & 34---Qatl-i-amd, kidnapping or abducting a

minor for murder, unnatural offence, common intention---

Appreciation of evidence---Presence of eye-witnesses at the spot at

the relevant time established---Accused was charged for abducting

the son of complainant, committing unnatural offence and

murdering him---Eye-witnesses were credible and natural witnesses

whose presence at the crime scene was both plausible and justified--

-Testimony of said witnesses was supported by the fact that they

apprehended the accused at the graveyard, where the deceased

minor s body was found lying next to the grave---Importantly, it was

acknowledged that eye-witnesses were neither relatives of the

complainant nor did they harbor any enmity or ill will towards the

accused---Lack of bias enhanced the credibility of their testimony---

Credibility of the eye-witnesses account was recognized in cases

where witnesses had no motive to falsify evidence---Eye-witnesses

remained firm during cross-examination, and their accounts were

corroborated by medical evidence and other supporting

circumstantial factors---Therefore, the evidence in this case was

credible and deserving of trust, consistent with the established

principles regarding the evaluation of eye-witness testimony---In

conclusion, the evidence presented was both reliable and credible---

Appeal against conviction was dismissed, in circumstances,

however, the revision petition filed by the complainant for

enhancement of sentence was allowed by enhancing the sentence

from life imprisonment to capital punishment of death.

Zahid Imran and others v. The State and others PLD 2006 SC 109 and

Imran Ali v. The State 2018 SCMR 1372 rel. Behlol Khan Kasi and Atta Muhammad Kakar for Appellants (in

Criminal Appeal No. 297 of 2024).

Ameer Hamza Mengal, Addl. Prosecutor General for the State (in

Criminal Appeal No. 297 of 2024).

Nasrullah Kakar and Shah Rasool Kakar for the Complainant (in

Criminal Appeal No. 297 of 2024).

Nasrullah Kakar and Shah Rasool Kakar for the Complainant (in

Criminal Revision Petition No. 28 of 2024).

Behlol Khan Kasi and Atta Muhammad Kakar for Respondent No.

1(convict) (in Criminal Revision Petition No. 28 of 2024).

Ameer Hamza Mengal, Addl. Prosecutor General for the State (in

Criminal Revision Petition No. 28 of 2024).

Date of hearing: 19th June, 2025.

JUDGMENT

MUHAMMAD AYUB KHAN TAREEN, J.---This appeal is directed

against the judgment dated June 15, 2024, passed by the learned

Sessions Judge Sariab Division Quetta in sessions (Murder) case

No.35/2021, whereby the appellant (accused) Sanaullah son of

Rehmatullah was convicted and sentenced in the following terms:

1. Under section 302(b) P.P.C as Tazir to suffer rigorous

imprisonment for life and to pay compensation Rs.200,000/- as

envisaged under section 544-A, Cr.P.C to the legal heirs of

deceased Naqeebullah, in default thereof shall further suffer

imprisonment for six months;

2. Under section 377 P.P.C to suffer imprisonment for life and to pay

fine of Rs.200,000/-, in default thereof to further suffer simple

imprisonment for six months, however 50% of fine amount on

its recovery is ordered to be paid to the legal heirs of deceased

as envisaged under the provisions of section 17 of Anti-Rape

(Investigation and Trial) Act, 2020;

3. under section 364-A P.P.C to suffer rigorous imprisonment for

fourteen years and to pay Rs.200,000/-, in default to further

suffer simple imprisonment for six months.

All the sentences were ordered to run concurrently with the benefit

of section 382-B, Cr.P.C. Similarly, the petitioner (complainant) filed the

Criminal Revision Petition No.28/2024, for enhancement of the

sentence awarded to the appellant (convict) by the trial court. 2. Facts of the case are that pursuant to report (Ex: P/1-A) of

complainant Muhammad Qasim (PW-1), a criminal case, vide FIR

No.123/2021 (Ex: P/14-A), dated 16th August 2021, under sections 302,

364-A, 377 and 34, P.P.C was registered at P.S. Shalkot, Quetta, wherein

he alleged that on 25th July 2021 he was working in an orchard, his

son Naqeebullah was also present with him; at about 3:00 p.m. he sent

Naqeebullah to home and after completion of work in the evening

when he returned home, his wife informed that Naqeebullah had not

reached home; despite efforts he did not know the whereabouts of

Naqeebullah. On 16th August 2021 he came to know that an unknown

person abducted Naqeebullah, committed his murder and thrown his

dead body in Killi Hassani Dasht graveyard.

During investigation, appellant was arrested and on completion of

investigation, challan of the case was submitted, trial commenced, the

learned trial court framed the charge and read over the same to the

appellant to which he did not plead guilty and claimed trial.

3. To substantiate accusation, the prosecution produced and

examined the following witnesses:

PW-1 Muhammad Qasim (complainant), who produced his

application (Ex: P/1-A).

PW-2 Raheem-ud-Din son of Sharaf-ud-Din (circumstantial witness);

PW-3 Haji Abdul Kareem son of Haji Wazir Muhammad

(circumstantial witness);

PW-4 Sardar Sajjad Ahmed son of Mir Behram Khan, who along with

inhabitants of the village apprehended the appellant when he

was burring the deceased in graveyard;

PW-5 Irshad Ahmed son of Behram Khan (eye-witness);

PW-6 Ahmed Shah Naib Risaldar Levies who brought the dead body

of deceased to Levies Station;

PW-7 Dr. Aysha Faiz, who conducted post mortem of the dead body

of deceased Naqeebullah and issued report (Ex: P/7-A). She also

examined the appellant Sanaullah and issued MLC (Ex: P/7-B)

and after examination of co-accused Ehsanullah, she issued MLC

(Ex: P/7-C);

PW-8 Muhammad Haroon Mengal, Judicial Magistrate, who

conducted identification parade of appellant vide identification

parade form (Ex: P/8-A) and issued certificate (Ex: P/8-B);

PW-9 Gul Azam SI is witness of recovery memo. (Ex: P/9-A) of parcel

No.2 (Article-P/2), plastic jar (Article-P/3) containing shalwar and shirt of deceased (Article-P/4 and P/5), two anal swabs (Article-

P/6), one tube of deceased s anal swab (Article-P/7), one blood

tube of deceased (Article-P/8) and parcel No.3 (Article-P/9),

plastic jar (Article-P/10) containing shalwar of appellant

Sanaullah (Article-P/11), blood tube of appellant (Article-P/12)

and buckle swab stick of appellant; recovery memo. (Ex: P/9-B)

of parcel (Article-P/13) containing blood sample tube of co-

accused Ehsanullah (Article-P/14), Buckle swap stick of

Ehsanullah (Article-P/15) and sample of seal (Article-P/16);

PW-10 Liaquat Ali son of Rasool Bakhsh (circumstantial witness);

PW-11 Noor Bakhsh ASI is witness of recovery memo. (Ex: P/11-A) of

parcel (Article-P/17) containing Sindhi Ajrak (Article-P/18) and

sample of seal (Article-P/19); site inspection memo. (Ex: P/11-B);

disclosure memo. of appellant (Ex: P/11-C), recovery memo. (Ex:

P/11-D) of parcel (Article-P/20) containing iron hammer (Article-

P/21), sample of seal (Article-P/22), parcel (Article-P/23)

containing slippers (Article-P/24) and sample of seal (Article-

P/25), parcel (Article-P/26) containing plastic bottle (Article-P/27)

and sample of seal (Article-P/28), pointation memo. of place of

occurrence (Ex: P/11-E), pointation memo. of hotel (Ex: P/11-F),

pointation memo. (Ex: P/11-G) of graveyard and spade (Article-

P/29), recovery memo. (Ex: P/11-H) of parcel (Article-P/30)

containing mobile phone of accused Ehsanullah (Article-P/31),

disclosure memo. of accused Ehsanullah (Ex: P/11-J), pointation

memo. of hut (Ex: P/11-K), pointation memo. of place of

occurrence (Ex: P/11-L) and pointation memo. of room in

graveyard (Ex: P/11-M) from where the accused picked-up the

spade;

PW-12 Bashir Ahmed SI (circumstantial witness)

PW-13 Abdul Ghafoor SI produced FSL reports (Ex: P/13-A and P/13-

B) through challan (Ex: P/13-C);

PW-14 Noor Hassan IP is the investigation officer, who produced FIR

(Ex: 14-A), site map (Ex: P/14-B), Merg report and receipts

(Ex:P/14-C to P/14-F), list of legal heirs of deceased (Ex: P/14-G),

copy of FIR No.212/2013 (Mark-P/1), photographs of deceased

(Ex: P/14-H-1 to P/14-H-9), site map (Ex: P/14-I) of shoes and iron

hammer, pointation map (Ex: P/14-J) of place occurrence,

pointation map (Ex: P/14-K) of hotel, and incomplete challans

(Ex: P/14-L to P/14-N).

On closure of prosecution evidence, the learned trial court recorded

the statements of appellant and co-accused under section 342, Cr.P.C,

wherein they disputed the prosecution story and pleaded their innocence; however, they did not opt to record their statements on

oath provided under section 340(2) Cr.P.C.

4. On completion of trial, the learned trial court (Sessions Judge

Sariab Division, Quetta), vide impugned judgment dated June 15, 2024,

found the appellant guilty, as such, convicted and sentenced him as

mentioned above, while acquitted the co-accused Ehsanullah by

extending benefit of doubt in his favour. Hence, this appeal with the

prayer to set aside the impugned judgment passed by the trial court

and to acquit the appellant of the charge. The petitioner (complainant)

has also filed criminal revision petition for enhancement of the

sentence awarded to the appellant.

5. Learned counsel for the appellant argued that the FIR was lodged

with a delay of 22 days, implying that deliberation and consultation

could not be ruled out. He stated that the prosecution's case is based

on circumstantial evidence, and the chain of circumstances is broken;

therefore, the trial court was not justified in convicting the appellant

on such weak evidence. He further argued that there are several

contradictions in the prosecution's evidence regarding the timings of

different events. Lastly, he requested the court to acquit the appellant

of the charge and dismiss the revision petition filed to increase the

appellant's sentence.

6. Conversely, the learned Additional Prosecutor General, duly

assisted by counsel for the complainant, contended that the delay has

been adequately explained and that the question of deliberation and

consultation could not be raised, as the accused appellant is not named

in the FIR. He argued that the complainant had no enmity with the

appellant to accuse him and that the prosecution witnesses also had no

enmity to depose falsely against him. He stated that circumstantial

evidence has connected the appellant with the commission of the

offence, and even in cases based on circumstantial evidence, a death

sentence can be imposed. Lastly, he prayed for the dismissal of the

appeal and the acceptance of the revision, which would convert the

appellant's life imprisonment sentence to death.

7. We heard the learned counsel for the parties and have pursued

the record with their valuable assistance.

The brief history of the prosecution case is that the minor deceased

went missing on July 25, 2021, and the FIR was registered on August

16, 2021, after the body was recovered. The complainant, Muhammad

Qasim, states he reported the matter on the same day (July 25, 2021);

however, the FIR was not registered because there was no photograph

of the minor, Naqeebullah. During cross-examination, the complainant

provided a reasonable explanation for the delay in registering the FIR, stating that he had initially approached the police station. Still, his FIR

was only recorded after the body was recovered. It can be inferred

that the illiterate complainant, unfamiliar with legal procedures, was

unaware of the consequences of not registering the FIR. Considering

other circumstantial and incriminating evidence, the delay in lodging

the FIR appears plausible and justifiable. This principle was discussed

in the case Ghulam Husain Soomro v. The State (P L D 2007 Supreme

Court 71), and the relevant paragraph is reproduced here for

reference:

6. We have anxiously attended to the submissions of the learned

counsel and found from the record that the delay in lodging FIR

has been adequately explained and accounted for. In any event,

mere delay in lodging of the FIR is not always fatal to the

prosecution case, though in some cases it might militate against

the bona fides of the prosecution. In the cases involving

kidnapping of young ones for extorting huge ransom, parents as

well as the investigating police invariably endeavour their best

to locate the victim rather than promptly lodging FIR for fear of

death of victim, which may sometimes prove to be counter

productive. We are, therefore, not inclined to draw any adverse

inference against the prosecution on the ground of delay alone

in lodging the FIR.

The Honourable Supreme Court of Pakistan took a similar view in a

case titled Muhammad Nadeem alias Deemi v. The State (2011 SCMR

872), A relevant paragraph is reproduced herein below:

6. ..It is an established principle of law and practice that in criminal

cases the delay, by itself, in lodging the FIR is not material. The

factors to be considered by the Courts are firstly, that such delay

stands reasonably explained and secondly, that the prosecution

has not derived any undue advantage through the delay

involved.

8. In the present case, the theory of last seen is pivotal in

establishing the guilt of the accused, Sanaullah, in the murder of the

minor Naqeebullah. The prosecution witnesses, PW-4 Sardar Sajjad

Ahmed and PW-5 Irshad Ahmed, testified that they last saw the

accused in the graveyard of their village at Dasht Area, where he was

engaged in the suspicious and unnatural act of digging a grave to bury

the deceased. The deceased s dead body lying was wrapped in a Sindhi

Ajrak, and the circumstances surrounding the burial raised significant

doubts about the accused's intentions. The proximity of time and place

between the last sighting of the accused with the deceased and the

subsequent discovery of the body by the accused, Sanaullah, creates a

compelling inference that Sanaullah was involved in the crime for which he could not utter a plausible justification. The witnesses, being

chance observers, provide corroborative evidence that strengthens the

prosecution's case, as the last seen theory necessitates that the accused

must offer a plausible explanation for his actions during that critical

time. Further, the burden of proof may shift to the accused to provide

a reasonable explanation for their presence and actions during the

time they were seen with the dead body. Given the lack of any

reasonable explanation from the accused regarding his presence at the

graveyard with the deceased, coupled with the fact that the accused

tried to escape, the evidence of last seen together serves as a crucial

link in the chain of circumstantial evidence, supporting the conviction

of Sanaullah for the murder of Naqeebullah.

The theory, as mentioned above, is also discussed by the Honourable

Supreme Court in myriad cases. Likewise, in Abdus Samad v. The State

(PLD 1964 SC 167), the evidence against the accused was charged with

the offence of raping and murdering a little girl, he was that she was

last seen in his company, and he had also led to the recovery of her

body from a remote place, which was exclusively within his

knowledge. There was also an incriminating recovery from the spot

where the deceased was found, which implicated the accused. On this

evidence, the conviction was maintained, and the appeal was

dismissed with the observation. The relevant extract is reproduced:

the two circumstances mentioned above were, in my opinion,

sufficient to establish the charges of kidnapping and murder

against the accused, being sufficient to exclude all possibility of

his being innocent of the death of the child.

Additionally, in Munshi and another v. The State (PLD 1971 Lahore.

781), Division Bench of the Lahore High Court observed that this view

has undergone some modification and, in that connection, remarked:

Held: But it is not difficult to conceive of a case where the

circumstance that the deceased was last seen alive in the

company of the accused, may raise reasonable presumption

against the latter and he may, justifiably, be expected to give an

explanation, e.g., where a person, who is seen visiting the used

in a room, in the sole occupations of the latter, is found dead

shortly thereafter, with signs of violence on his person. In such a

case the onus of displacing the presumption of guilt shall shift

on the accused and he shall be under an obligation to furnish a

reasonable explanation as to how the deceased met his death.

The Honourable Supreme Court of Pakistan took a similar view in a

case titled Qaisar Mehmood and another v. The State (2021 SCMR 662),

and the relevant portion is reproduced herein below: 4. the Court may rely upon the evidence of last seen, without a

demur, if found free from any taint, constituting a reliable link

between the offender and the victim within the proximity of

time and space.

9. In the present case, the absence of an established motive does not

undermine the prosecution's case against the accused, as established

by the Honourable Supreme Court of Pakistan in various rulings. The

court has consistently held that a lack of motive or the prosecution's

inability to prove motive does not preclude the imposition of the

normal penalty of death if the prosecution has otherwise successfully

established its case against the accused. Furthermore, the Honourable

Supreme Court Pakistan in Mst. Nazakat v. Hazrat Jamal and another

(PLD 2007 SC 453) clarified that a motive "shrouded in mystery" does

not serve as a mitigating circumstance for reducing the sentence. This

principle has been reiterated in case Mukhtar Ahmad and others v.

The State (PLD 2004 SC 563) where the Honourable Supreme Court has

maintained that the absence of motive does not diminish the

culpability of the accused if the evidence presented is otherwise

compelling. Therefore, in light of these precedents, the prosecution's

case remains robust despite the lack of a clearly defined motive,

supporting the argument for a conviction based on the evidence at

hand. The same is held in the case title Muhammad Saeed v. Haq

Nawaz Khurram and 2 others (PLD 2008 SC 416) and the relevant

portion is reproduced for ready reference:

9. Now reverting to the plea of the learned counsel regarding

absence/disproving of motive. Suffice it to say that lack of

motive or inability of prosecution to prove motive does not

effect the imposition of normal penalty of death if the

prosecution otherwise has been able to prove his case against

the accused. Reference in this behalf can be made to Nawaz Ali

and another (ibid.). The view of this Court in the judgment

reported as Ashfaq Ahmad v. The State 2007 SCMR 641, Federal

Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR

1676 and Syed Hamid Mukhtar Shah (ibid.) is that lenient view

should not be taken merely on the ground that the motive had

not, been proved by the prosecution.

In another judgment reported as Mst. Nazakat v. Hazrat Jamal and

another (PLD 2007 SC 453) the Honourable Supreme Court of Pakistan

has held that "motive shrouded in mystery" by itself is not a mitigating

circumstance for awarding lesser sentence and this theory has been

discarded. In the same context the cases of Mukhtar Ahmad and others

v. The State (PLD 2004 SC 563) and Khurram Malik and others v. The

State and others (PLD 2006 SC 354) can be referred. In view of the enormous case law on the subject, the contention of the learned

counsel is ill-founded.

10. The entire case is based on circumstantial evidence. The

principle established by the Honourable Supreme Court of Pakistan

indicates that even in the absence of direct evidence, a conviction can

be secured if the chain of circumstantial evidence remains unbroken,

directly linking the commission of the offence to the accused. In this

context, the testimonies of PW-1, PW-2, and PW-3, while not eye-

witnesses, are significant as they confirmed that on July 25, 2021, the

deceased, Naqeebullah, went missing. They learned about the

discovery of a dead body in the hospital mortuary through the police

and subsequently identified the deceased. The evidence regarding the

disappearance of Naqeebullah and the subsequent discovery of his

body, as revealed by the star witnesses (PW-4 and PW-5), has been

found to be reliable and trustworthy, with their natural presence at

the scene further corroborating their accounts. Additionally, the

statement of PW-7, Dr. Aysha Faiz, the Police Surgeon, along with the

postmortem report of Naqeebullah (Ex.P/7-A) and the medical-legal

certificates MLC) of the accused, Sanaullah, and co-accused (Ex.P/7-B

and Ex.P/7-C), provide critical insights. The Police Surgeon opined

that the deceased had been subjected to forcible carnal intercourse

and subsequently murdered with a blunt weapon. Furthermore, she

confirmed that Sanaullah could perform sexual intercourse and was

medically potent. The testimonies of the remaining witnesses (PW-8

to PW-14) and the DNA result and its conclusion, which shows that

Seminal material was found on item Nos. 1 and 4,1-4.11(anal swab of

deceased Naqeebullah, stains sections taken from Shalwar Qameez of

Naqeebullah) human blood was identified on item No. 10.2(stain

sections taken from Shalwar of appellant Sanaullah. The DNA profile

obtained from sperm fractions of item Nos. 1, 4.1, 4.5, 4.10, epithelial

of item Nos. 1 and 4.5 matches the DNA of Sanaullah (item No. 9). The

probability of finding an unrelated individual at random from the

population as being the source of DNA obtained from sperm fraction

of item Nos. 1, 4.1, 4.5, 4.10, epithelial fractions of item Nos. 1 and 4.5

is approximately one in 64 sextillion in Caucasians. The evidence

presented collectively supports the prosecution's case, establishing a

coherent chain of circumstantial evidence that remains intact. The

established principle is discussed in the case titled Qaisar Mehmood

and another v. The State (2021 SCMR 662), and the relevant paragraph

is reproduced herein below:

Prosecution has relied upon a chain of circumstances comprising

of the complainant and witnesses identifying the victim

departing in the company of accused and co-accused, heading

towards a factory, and again while disposing of the corpse concealed in a gunny bag; and the confession of accused and

co-accused shortly before their arrest and subsequent

recoveries of incriminatory bloodstained articles from their

residential room in the factory. Said uninterrupted continuing

links, synchronized in a chain of circumstances, were tallied by

findings, recorded in the autopsy report that unambiguously

confirmed a carnal assault with the victim within the durations

compatible with the incidence of events related by the

witnesses. Witnesses had no apparent motive either to falsely

implicate the accused and co-accused or swap them with

someone else.

In a similar nature of case titled as Hamid Mahmood and another v.

the State and another (2013 SCMR 1314), same view was taken and the

relevant paragraph is reproduced for ready reference:

23. Similarly, the nature of the evidence produced at the trial is

relevant primarily for the purpose of determining the guilt or

innocence of the accused and not sentenced to be awarded. No

rule exists that the sentence of death cannot be awarded in the

absence of direct ocular evidence, if the guilt of the accused has

been proved beyond reasonable doubt through circumstantial

and forensic evidence.

24. The overall features of the occurrence, the nature of offence and

the events leading thereto, including the motives etc. are

relevant to the extent permitted by law.

In the case reported as Laxman Naik v. State of Orisa (AIR 1995 SC

1387) above principles have been reiterated in the following manner:

"According to the standard of proof required to convict a person on

circumstantial evidence, the circumstances relied upon in

support of, the conviction must be fully established and the

chain of evidence furnished by those circumstances must be so

complete as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused. The circumstances

from which the conclusion of the guilt is to be drawn have not

only to be fully established but also that all the circumstances so

established should I be of a conclusive nature and consistent

only with the hypothesis of the guilt of the accused and should

not be capable of being explained by any other hypothesis,

except the guilt of the accused and when all the circumstances

cumulatively taken together should lead to the only irresistible

conclusion that the accused alone is the perpetrator of the crime.

A similar view is also held in the case, reported as Muhammad Latif

v. The State (PLD 2008 SC 503), it was held by this Court, as follows: 11. As far the contention of the learned counsel that upon

circumstantial evidence, one cannot be convicted and awarded

the penalty of death, this plea is also misconceived because

there is no bar or hindrance to pass the sentence upon a killer of

three human beings when the chain of guilt is found not to be

broken and irresistible conclusion of the guilt is surfacing from

the evidence, which is connecting the accused with the

commission of that offence without any doubt or suspicion. If

the circumstantial evidence brought on the record is of such

nature than the conclusion would be in the shape of conviction

and no other conclusion shall be drawn by any stretch of

imagination in such a case, for the guilt of the accused, penalty

of death or life imprisonment shall be a normal event.

11. The trial court made the following observation as a mitigating

circumstance in connection with the quantum of sentence in

paragraph No. 34 of the impugned judgment, which is reproduced here

for ease of reference:

34. However, there seems to be involvement of mitigating

circumstances as it is still not ascertain as to what happened just

before the occurrence at unknown time is shrouded in mistry

and prosecution evidence is silent in this regard.

Whereas, to the extent of considering mitigating circumstances, and

in light of the established facts surrounding the case of the accused,

Sanaullah, and the relevant legal precedents set forth by the

Honourable Supreme Court of Pakistan, it is imperative to enhance the

punishment from life imprisonment to the death penalty keeping in

view the gruesome and shocking act of the accused. The trial court's

decision to impose a lesser sentence based on vague reasons cannot be

justified, as such considerations do not constitute valid mitigating

circumstances. The Honourable Supreme Court of Pakistan has

consistently held that awarding a lesser punishment on flimsy

grounds, such as those mentioned in the impugned judgment,

effectively grants individuals a license to commit heinous acts without

fear of appropriate repercussions. Furthermore, the accused has failed

to provide credible evidence to substantiate and draw any inference in

connection with the offense, which would warrant leniency. Therefore,

by the Supreme Court's ruling that the normal penalty for murder

should be death when the prosecution has proven its case beyond a

reasonable doubt, it is just and necessary to impose the death penalty

on Sanaullah to uphold the rule of law and deliver justice for the

grievous crime committed against the innocent minor, Naqeebullah.

Reliance is placed on in case law titled Muhammad Aslam Sajjan v. Liaqat Ali and others (1998 SCMR 1555), and the relevant portion of

the paragraph is reproduced:

5. The next question which arises for our consideration is the

quantum of sentence which is to be given to the convict. The

trial Court awarded imprisonment for life to the appellant on

the ground that there existed political differences between the

appellant, Liaqat Ali and Muhammad Ashraf, deceased. Such-like

consideration or ground cannot be a mitigating circumstance for

awarding lesser punishment. If a lesser punishment is awarded

in a case of capital punishment merely on the ground that there

exist political difference between the parties, then shall amount

to giving an open licence to all to kill innocent people on that

flimsy and easily available ground. Basic principles or the

foundations of the democratic institutions are based on

tolerance. The views, of the political opponents are to be heard

and understood with patience and forbearance. These are not to

be silenced by killing the holders of such views by applying

violent means. This, therefore, cannot be a valid ground for not

giving the normal penalty of death in murder cases. Faced with

this situation, learned' counsel attempted to argue that Liaqat

Ali was minor at the time of occurrence and as such, he was

entitled to be given lesser sentence. There was no evidence

having been produced by him to show that Liaqat Ali was minor

when he committed the offence. The heavy burden was on him

to prove his minority during trial on the basis of credible

evidence. His simple statement, without proof, was not enough

to give him the relief asked for. In the circumstances, Criminal

Appeal No.403 of 1994 is accepted. In the result, sentence of

death is hereby awarded to Liaqat Ali to meet the ends of law

and justice. He shall be hanged by neck till he is proclaimed to

be dead. In consequence, the connected Criminal Appeal No. 123

of 1995 is dismissed.

The similar view held in the case titled Hamid Mahmood and

another v. The State and another (2013 SCMR 1314) and the relevant

paragraph is reproduced for ready reference:

20. In the instant case, the accused were involved in a brutal murder

of a young boy who had been kidnapped by them for ransom.

The accused persons were well known to the abductee, hence;

apparently the accused had no intention of ever releasing the

abductee on the receipt of ransom to avoid the risk of

identification and capture. A heinous crime has been committed,

which is a factor to be taken into consideration for

determination of the sentence to be awarded and in the cases of brutal premeditated murder of a young child, death sentence

appears to be appropriate, as has been held by this Court in the

case, reported as Talib Hussain v. The State (1995 SCMR 1538). In

the said case on account of the murder of a young boy, the

sentence of life imprisonment was enhanced to sentence of

death.

12. Additionally, the theory of deterrence is a factor to be taken into

consideration, while awarding the sentence specially, the sentence of

death and in this behalf, reference can be made to the judgment of

Honourable Supreme Court of Pakistan, reported as Khurram Malik

and others v. The State and others (PLD 2006 SC 354), wherein it was

held that:

16. It is also to be noted that justice is not for one but is for all and

while examining the case of convict, the court owe a duty to the

legal heirs/relatives of the convict and also to the society that

justice should also be done with them as well, thus the sentence

should be such which should serve as deterrent for the like

minded person as observed G in the case of Muhammad Saleem

v. The State PLD 2002 SC 558 amd State v. Farhan Ali PLD 1995 SC

1.

Similar view to the extent of deterrence held in case titled Hamid

Mahmood and another v. The State and another (2013 SCMR 1314), and

the relevant paragraph is reproduced for ready reference:

25. In the facts and circumstances of the case, the considerations

pertaining to quantum of sentence, have been examined. The

reasons for the award of the death penalty far out weight the

considerations for the award of lesser sentence. The tender age

of the minor, the brutal and heinous nature of the crime and

pre-mediation persuades us to agree with the sentence awarded

by the learned trial Court as well as the learned High Court. The

deterrent aspect of the sentence cannot be lost sight of either as

it was a crime of kidnapping for ransom of minor, followed by

murder. In such an eventuality, the normal sentence of death

should be awarded and the Court should neither hesitate nor

search for laboured pretexts to award a lesser sentence, as has

been held by this Court, in the case, reported as Muhammad

Sharif (Supra).

Furthermore, it is also held in the case titled Vadivelu Thevar v. The

State of Madras (AIR 1957 SC 614) and the relevant portion of the

paragraph is provided as under:

16. Lastly, it was urged that assuming that the court was inclined to

act upon the testimony of the first witness and to record a conviction for murder as against the first appellant, the court

should not impose the extreme penalty of law and in the state of

the record as it is, the lesser punishment provided by law should

be deemed to meet the ends of justice. We cannot accede to this

line of argument. The first question which the court has to

consider in a case like this, is whether the accused has been

proved, to the satisfaction of the court, to have committed the

crime. If the court is convinced about the truth of the

prosecution story, conviction has to follow. The question of

sentence has to be determined, not with reference to the volume

or character of the evidence adduced by the prosecution in

support of the prosecution case, but with reference to the fact

whether there are any extenuating circumstances which can be

said to mitigate the enormity of the crime. If the court is

satisfied that there are such mitigating circumstances, only then,

it would be justified in imposing the lesser of the two sentences

provided by law. In other words, the nature of the proof has

nothing to with the character of the punishment. The nature of

the proof can only bear upon the question of conviction -

whether or not the accused has been proved to be guilty. If the

court comes to the conclusion that the guilt has been brought

home to the accused, and conviction follows, the process of

proof is at an end. The question as to what punishment should

be imposed is for the court to decide in all the circumstances of

the case with particular reference to any extenuating

circumstances. But the nature of proof, as we have indicated,

has nothing to do with the question of punishment. In this case,

there are no such extenuating circumstances which can be

legitimately urged in support of the view that the lesser penalty

under section 302 of the Indian Penal Code, should meet the

ends of justice. It was a cold-blooded murder. The accused came

for the second time, determined to see that their victim did not

possibly escape the assassins' hands.

13. In the case of accused Sanaullah, it is clear that the accused does

not deserve any leniency as granted by the trial court, particularly

considering the principles established in Emperor v. Nga Tha Hmwe

and others (AIR 1935 Rang. 504). The facts surrounding this case

demonstrate that the murder was both deliberate and premeditated,

and shocking, leaving no room for mitigating circumstances that

would warrant a lesser sentence. The leniency shown in this case,

where it is not deserved, constitutes a serious dereliction of the court's

duty to administer justice. Therefore, under the established legal

principles, the court must impose the maximum penalty of death,

reflecting the seriousness of the crime committed and the necessity for justice to be served without undue leniency. The same principle is also

discussed in the case titled Emperor v. Nga Tha Hmwe and others (AIR

1935 Rang 504):

6. The murder was committed not in selfdefence, nor in retreat, but

was it only before the house was even attacked in order to

intimidate the house owner and the neighbouring villagers.

section 396 I.P.C., was expressly enacted in order to punish with

the utmost severity of the law crimes of this very description.

The dacoits were more heavily armed than usual, and were

undoubtedly a desperate set of men. They must have known

from the outset that murder was likely to be committed if there

was any opposition, and a fortiori if murder was committed

unprovoked there is all the more reason not to refrain from

inflicting the extreme penalty. It has been urged that this penalty

should not be inflicted in the case of the appellant Tha Hmwe,

who after it was committed, seems to have so far repented, or so

far been afraid of the consequences, that he deterred the dacoits

from setting fire to the house-owner, and asked them to move

the children to the bed-room to guard them against stray shots, I

consider however that that would be a pure matter of grace or

clemency, and that this Court would not be justified in not

inflicting the extreme sentence on him also. For these reasons

this appeal will be dismissed, and in revision the sentences

under S. 396, I.P.C., on the four appellants will be enhanced to

ones directing that they be hanged by the neck until they are

dead."

14. Additionally, the eye-witnesses, PW-4 and PW-5, are credible and

natural witnesses whose presence at the crime scene is both plausible

and justified. Their testimony is further supported by the fact that they

apprehended the accused at the graveyard, where the deceased

minor's body was found lying next to the grave being dug by

Sanaullah. The statements of these eye-witnesses are consistent and

free of significant contradictions, reinforcing the reliability of their

accounts. Importantly, it is acknowledged that PW-4 and PW-5 are

neither relatives of the complainant nor do they harbor any enmity or

ill will towards the accused, particularly Sanaullah. This lack of bias

enhances the credibility of their testimony. The Supreme Court of

Pakistan has similarly recognized the reliability of eye-witness

accounts in cases where witnesses have no motive to falsify, The

Honourable Supreme Court emphasized that the prosecution proved

its case beyond a reasonable doubt with clear and concrete evidence.

The court observed that the eye-witnesses remained firm during cross-

examination, and their accounts were corroborated by medical

evidence and other supporting circumstantial factors. Therefore, the evidence in this case is credible and deserving of trust, consistent with

the principles established by the Supreme Court regarding the

evaluation of eye-witness testimony. In conclusion, the evidence

presented above is both reliable and credible. The Supreme Court also

expressed a similar view in the case titled Zahid Imran and others v.

The State and others (PLD 2006 SC 109), and the relevant portion of the

paragraph is reproduced here for reference:

14. Let we make it clear at the outset and as mentioned above that

we agree with the conclusion of learned trial and first appellate

Courts that the prosecution has proved the guilt to the hilt by

producing cogent ant! concrete evidence but we have serious

reservations qua the application of section 316, P.P.C., factum of

sentence and applicability of sections 6 and 7 of the Act, 1997. As

pointed earlier the prosecution has established its case beyond

shadow of doubt. In this regard the statements of Ishtiaq Ahmad

(P.W.11) and Khalid Hussain (P.W.12) can be referred. They were

eye-witnesses and it transpired from an in-depth scrutiny of

their statements that they have fully supported the prosecution

case. They remained firm during the test of cross-examination

and in spite of various searching questions, lengthy and an

exhaustive cross-examination, nothing beneficial rendering any

help to the case of appellants could be elicited. They had no

rancour, enmity or ill-will against the appellants and hence the

question of their false involvement D does not arise specially

when three accused were apprehended at the spot. Their version

also finds support from the medical evidence, motive, factum of

recovery and absconsion. Being worthy of credence and

confidence-inspiring, their evidence has rightly been

appreciated and believed by the learned trial Court

determination whereof has been upheld by the appellate Court

under different sections of Penal Code. Ishtiaq Ahmad (P.W.11)

and Khalid Hussain (P.W.12), by no stretch of imagination, can

be declared as chance witnesses, as pressed time and against by

Mr. Muhammad Latif Khan Khosa, learned Senior Advocate

Supreme Court on behalf of appellants, because they have

rendered a plausible justification for their presence at the place

of occurrence.

Furthermore, it has also been observed by the Honourable Supreme

Court of Pakistan in a case titled Imran Ali v. The State (2018 SCMR

1372) and the relevant paragraph is produced herein below:

4. As regards the sentences passed by the trial court against the

petitioner which sentences had subsequently been upheld and

confirmed by the High Court we may observe that the crimes committed by the petitioner were absolutely horrendous and

barbaric and the same had been committed with a minor and

innocent girl aged about 7/8 years. The petitioner had not only

deceitfully kidnapped her but had also brutalized her by

committing sodomy and rape with her and had then ultimately

killed her mercilessly. In his pleading guilty to the charge as well

as in his statement recorded under section 342, Cr.P.C. the

petitioner had admitted committing similar offences with eight

other minor victims and in that backdrop the petitioner did not

deserve any sympathy in the matter of his sentences.

15. Given the above, the appeal filed by the appellant, Sanaullah, is

without merit; therefore, it is dismissed. The revision petition filed by

the complainant (father of the deceased) of enhancement of sentence

is allowed. The conviction awarded by the learned trial court (Sessions

Judge Sariab Division, Quetta), vide judgment dated June 15, 2024, is

maintained, however, sentence awarded to the appellant (convict)

Sanaullah is enhanced from life imprisonment to capital punishment

of death. The appellant (convict) shall be hanged by the neck until he

is dead.

JK/83/Bal. Appeal dismissed.