20/08/2026
VVVVI. MUST READ JUDGEMENT.
آرٹیکل 40 قانون شہادت اور لاسٹ سین شہادت پر سپریم کورٹ کا انتہائی معلوماتی فیصلہ۔
ESSENTIALS OF ART. 40 QANOON-E-SHAHADAT ORDER, 1984.
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(i) The accused must be in lawful police custody in that particular case at the time of making the disclosure. A voluntary disclosure made outside the custodial context does not attract the operation of Article 40.
(ii) The information must be specific and must distinctly relate to the fact discovered. Generalised or vague statements are not covered; the discovery must be directly traceable to the information furnished.
(iii) There must be a tangible discovery of a material fact, such as the recovery of an object, article, weapon, or place, which was previously unknown to the investigating agency.
(iv) There must be a clear causal link between the disclosure and the discovery. The fact must be discovered as a direct and immediate consequence of the information provided by the accused.
(v) Only that portion of the statement which relates distinctly to the fact discovered is admissible. The remainder of the statement, including any confessional or incriminating parts not tied to the discovery, remains inadmissible
(vi) The recovery must be genuine, verifiable, and documented through credible and preferably independent witnesses. The authenticity of the discovery is not presumed and must be established through cogent evidence.
(vii) The evidentiary value of the discovery must be assessed in conjunction with other corroborative evidence. A discovery alone, even if admissible, is insufficient to sustain conviction unless it fits into an unbroken chain of circumstances.
Firstly, the term “fact” as used in the law of evidence includes both physical and psychological states or mental conditions. Secondly, a critical distinction must be drawn between the term’s “discovery” and “recovery”, which are often mistakenly used interchangeably. According to Black’s Law Dictionary, “discovery” refers to the act or process of finding or learning something that was previously unknown, whereas “recovery” means the regaining or restoration of something lost or taken away. For instance, where an accused discloses, “I have kept the firearm concealed behind the old house in a heap of wood,” the fact discovered is not merely the firearm, but the accused’s knowledge of its location and act of concealment. The discovery thus lies in the disclosure of the place and manner in which the article is hidden. Although an object may constitute a “fact” in itself, discovery under Article 40 entails a broader cognitive element than simple recovery.
LAST SEEN EVIDENCE
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While the principle of “last seen together” is recognised in the jurisprudence of this Court as a relevant circumstance, it is equally well-settled that such evidence must satisfy strict legal scrutiny before it can be relied upon as a basis for conviction. In order for this doctrine to have probative value, it must be established that
(i) the accused and the deceased were last seen together in such proximity of time and place to the occurrence that no possibility of the deceased having met any other person in the interval can reasonably be entertained (Muhammad Abid v. The State, PLD 2018 SC 813; Fayyaz Ahmad v. The State, 2017 SCMR 2026; Akbar Ali v. The State, 2007 SCMR 486), and (ii) the time of death must be established with sufficient medical or circumstantial clarity so as to correlate with the alleged last seen incident (Muhammad Abid v. The State, PLD 2018 SC 813; The State v. Ahmed Omar Sheikh, 2021 SCMR 873).
Although this category of circumstantial evidence may, under appropriate conditions, contribute to the chain of guilt, it remains a weak type of evidence and cannot form the sole basis for a conviction unless it is corroborated by other independent and credible material (Qaisar Mehmood v. The State, 2021 SCMR 662; Fayyaz Ahmad v. The State, 2017 SCMR 2026; Akbar Ali v. The State, 2007 SCMR 486). Courts have repeatedly emphasised that the evidentiary value of last seen evidence depends on the presence of cogent reasons for the deceased to be in the company of the accused, the proximity of time and location of the alleged sighting to the occurrence, the absence of delay in reporting, and the exclusion of the possibility of third-party involvement (Fayyaz Ahmad v. The State, 2017 SCMR 2026). It has also been affirmed that where the last seen witness is a close relative of the deceased, additional corroboration may be required (Akbar Ali v. The State, 2007 SCMR 486). In the absence of such corroboration, and particularly where the prosecution evidence suffers from contradictions or delay in disclosure, the benefit of doubt must accrue to the accused (Muhammad Abid v. The State, PLD 2018 SC 813; Akbar Ali v. The State, 2007 SCMR 486).
The practice of producing recovery memos without signed statements from the Investigation Officer or without attestation by witnesses, and without corresponding departure entries from the police station, undermines the credibility of police evidence. In many cases, the prosecution has failed to produce even a written disclosure by the accused or a contemporaneous record of the circumstances surrounding the alleged discovery. The result is a troubling pattern where recoveries are manipulated or exaggerated to secure convictions, leading not only to wrongful incarceration but also to erosion of public confidence in the criminal justice system.
Pakistan’s judicial system, though empowered to rectify individual injustices through acquittals, remains institutionally ill-equipped to address the profound harms, irreversible trauma, reputational erosion, financial ruin, and unjust deprivation of liberty, inflicted on accused individuals during protracted trials, often precipitated by flawed investigations. These systemic failures stem from entrenched deficiencies, including the absence of statutory mechanisms to ensure investigational transparency and a lack of professional accountability within law enforcement, which collectively corrode public trust and undermine the integrity of the justice framework. Addressing these gaps transcends procedural reform; it constitutes a constitutional obligation under Articles 4, 9, 10-A, and 14, which enshrine due process, fair trial, and the preservation of human dignity. A justice system’s legitimacy hinges not on punitive severity but on equitable, rigorous processes that safeguard accused individuals’ rights against institutional expediency, thereby reinforcing the critical balance between state authority and individual liberty.
In consideration of the documented systemic disparities, this Court is duty-bound to act in order to prevent the continued occurrence of institutional practices that fail to meet established legal and ethical standards. To remain inactive or neutral in the face of recurrent investigative and procedural deficiencies would contravene our constitutional obligations to ensure justice and equality under the law. Therefore, this Court in view of criterion as outlined in Para 16, judicial propriety demands that: the following measures to ensure adherence to due process, safeguard the principles of justice, and uphold the equitable application of the rule of law: (i) Inspectors General of Police of all Provinces and the Islamabad Capital Territory shall ensure that all disclosure statements leading to the discovery of facts under custody are:
o reduced to writing;
o signed by the Investigating Officer;
o attested by at least two independent witnesses; and
recorded with a corresponding departure entry from the relevant police station.
o These documents must be placed on record and produced during trial proceedings.
(ii) The Police Rules of each province and territory shall be amended, in consultation with the appropriate executive and legislative stakeholders, to institutionalize the abovementioned procedural safeguards.
(iii) The Prosecutor Generals of all Provinces and the Islamabad Capital Territory shall ensure dissemination of this judgment to all public prosecutors under their jurisdiction. Prosecutors must scrutinize the case files received under Section 173 Cr.P.C. for compliance with these requirements and advise the Investigating Officers accordingly.
(iv) The Registrars of all High Courts are directed to circulate this judgment to all Criminal Courts and Special Courts functioning under their administrative control for guidance and judicial implementation.
(v) The Legislature is earnestly urged to consider appropriate statutory amendments to codify the procedural safeguards for custodial disclosures and recoveries, ensuring mandatory documentation, transparency, and accountability.
(vi) The Office of this Court is directed to circulate this judgment without delay to the relevant ministries, departments, and authorities.
Crl.P.L.A.532/2018
Zunair Younas v. The State thr. P.G., Punjab & another
Mr. Justice Salahuddin Panhwar
22-04-2025.
