When is a recovery made on the accused's pointation admissible, when is it doubtful, and can it alone support a conviction? Our research paper studies 100 judgments (84 of the Supreme Court and 16 of the Peshawar High Court) on Article 40 of the Qanun-e-Shahadat Order, 1984. This article summarises what they decide.

What does Article 40 allow?

Article 40 is an exception to the rule that statements to the police are inadmissible. Where an accused in police custody gives information, only the part of it that leads to the discovery of a fact may be proved. Three points follow:

  • The fact must be one that only the accused knew. A fact the police already knew is not "discovered" (2021 SCMR 324). The place of the murder and the dead body were admissible where the accused alone knew of them (Gul Muhammad v. The State, 2011 SCMR 670).
  • Pointing out a place where nothing is recovered discovers nothing, and cannot corroborate the prosecution (Ziaul Rehman v. The State, 2000 SCMR 528).
  • The disclosure should be recorded before the recovery. Where it was not recorded, the recovery was held immaterial (Zafar Ali Abbasi v. Zafar Ali Abbasi, 2024 SCMR 1773).

Joint recoveries

A recovery made on the joint pointation of several accused is inadmissible, even where separate memos are prepared (Muhammad Riaz v. The State, 2024 SCMR 1839). A dead body recovered on the pointation of several accused was likewise excluded (Muhammad Mushtaq v. Mustansar Hussain, 2016 SCMR 2123). The Peshawar High Court has said that the value of a joint recovery "stands in vacuum" (Aleem Ullah v. Khan Pervez, 2025 PCrLJ 690).

Recovery from an open place

A recovery from a place open and accessible to others is not from the accused's exclusive possession, and is unsafe (Usman Ahmed v. The State, 2025 SCMR 1442). In Muhammad Shadeed v. The State (2026 SCMR 1255) the recovery was from a dustbin that had been cleaned in the meantime.

Witnesses to the recovery

Failure to associate independent witnesses makes a recovery doubtful (Iftikhar alias Puppi v. The State, 2026 SCMR 891), and non-compliance with section 103 Cr.P.C. without explanation defeats it (Said Naik Amal Shah v. The State, 2025 PCrLJ 1584). A recovery from a room was held doubtful without an independent witness (Muhammad Zubair v. The State, 2026 YLR 1151). Police officials are, however, competent witnesses where the accused is already in custody (Maqsood Ahmed v. The State, 2006 SCMR 672).

The weapon, the empties and the laboratory

  • Where the empties reached the laboratory before the weapon was recovered, a positive match carries weight (Sh. Muhammad Abid v. The State, 2011 SCMR 1148).
  • Where the empties were sent only after the weapon was recovered, the match is not reliable (Muhammad Imtiaz Baig v. The State, 2024 SCMR 1191).
  • A negative laboratory report makes the recovery inconsequential (Abid Hussain v. The State, 2024 SCMR 1608).

Can a recovery alone support a conviction?

No. A recovery is corroborative evidence. It cannot convict without direct evidence (Muhammad Siddique v. The State, 2026 SCMR 783), and mere recovery is not enough to prove guilt (The State v. Muhammad Yaqoob, 2001 SCMR 308). If the eyewitness account falls, the recovery cannot stand on its own.

Practical checklist: for the defence

  • Was the disclosure recorded in writing, before a witness, before the recovery?
  • Was the place open, accessible or in joint use?
  • Was the recovery made on the joint pointation of several accused?
  • Were private witnesses available but not associated?
  • When did the empties reach the laboratory: before or after the weapon?
  • Does the forensic report actually match?
  • Does the eyewitness account stand? If not, the recovery cannot stand alone.

Practical checklist: for the prosecution

  • Record the disclosure in writing before a witness.
  • Associate independent persons wherever available.
  • Prepare a separate memo and pointation for each accused.
  • Seal and mark the articles at the spot.
  • Send the empties to the laboratory promptly, before the weapon is recovered.
  • Prove the malkhana and dispatch entries, and obtain a matching forensic report.

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This article is general information on the law, not advice on your own case. Time limits can matter, so speak to an advocate promptly about your own matter.