April 6th, 2021 

By Rehan Piracha 


The Supreme Court has ruled that the constitutional guarantee of fair trial under Article 10A cannot be taken away from an accused even in cases of heinous crimes.

A three-member bench, headed by Justice  Syed Mansoor Ali Shah, stated this in a detailed judgment on 17th December last year, setting aside death sentences of three accused in the murders of five family members.

Qadeer Ahmad, Khurram Shahzad and Naveed Asghar were sentenced to death for murders of Parvez Akhtar, a retired WAPDA employee, his wife Firdous Kausar, his daughters Ghazala and Bushra and his granddaughter Zarmina during a robbery in Jhelum in January, 2010. The high court had upheld the sentence awarded by the trial court in 2016. The petitioners had challenged their conviction in the Supreme Court.

Fair trial in heinous crimes

The Supreme Court noted that an accused person is presumed to be innocent till the time he is proven guilty beyond reasonable doubt, on the basis of legally admissible, confidence inspiring, trustworthy and reliable evidence.

“The ruthless and ghastly murder of five persons is a crime of heinous nature; but the frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused,” Justice Mansoor Syed Mansoor Ali Shah writes in the judgment. The apex court noted that the ‘cases are to be decided on the basis of evidence and evidence alone and not on the basis of sentiments and emotions’.

Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow, the court order reads.

High court bound to reappraise evidence in confirmation of death sentence

The Supreme Court ruled that the high courts were bound under the law to reappraise evidence in confirmation of death sentence awarded by a trial court.

“Normally, the high courts hear and decide the appeal filed by the convicted person and the reference sent by the trial court for confirmation of the death sentence, together. It has been noticed that while doing so the learned Judges of the High Courts sometimes, as it appears to have done in the present case, remain content with examining and deciding only the arguments and contentions advanced in appeal, and do not by themselves scrutinize the whole material available on record of the case,” the court order reads.

In discharge of their statutory duty under sections 375 and 376 of the Code of Criminal Procedure, 1898, the Supreme Court ruled that it is incumbent upon the High Courts to read and appraise each and every piece of evidence, and to examine also whether any evidence has been improperly admitted or excluded, or has been misread or non-read by the trial court.

The Supreme Court observed that on a reference for confirmation of sentence of death, it’s the duty of the high court ‘is not only to see whether the order passed by the trial court is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person.

The high court has to decide on reappraisal of the whole evidence whether the conviction is justified and, having regard to the circumstances of the case, whether the sentence of death is appropriate,” the judgment reads.

Standard for relying on circumstantial evidence

In its order, the court also dilated upon the standard of care for relying on circumstantial evidence for reaching the conclusion of guilt of an accused person.

“In cases that rest entirely on circumstantial evidence, it is of the utmost importance that the circumstances should be ascertained with minute care and caution, before any conclusion or inference adverse to the accused person is drawn,” writes Justice Mansoor Syed Mansoor Ali Shah.

The apex court also asks judges to beware of fabrication of evidence in cases that are based solely on circumstantial evidence.  “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.”

Chain of evidence in murder case

The court also outlined the approach to determine sufficiency of circumstantial evidence for conviction or acquittal of an accused in cases.

“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.”

The Supreme Court remarked that the 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 the 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 the accused person, the judgment stated.