' EJAZ AFZAL, KHAN, J.--- On the day of occurrence Mst. Hussina, mother and Mst. Tillat Yasmin, wife of the appellant, Arshad Rehman, went to the house of his maternal-uncle Tariq Javed for recitation of the Holy Qur'an, whereas he went to Bazar to attend his personal errands. When after doing the needful, he came back at 6 p.m., he found the door of his house locked. When despite waiting for them' non turned up, the appellant went to the house of his in-laws to get an inkling concerning their whereabouts. When found no clue from any quarter, he arranged a stair from his neighborhood and entered the house by climbing over its wall. As soon as he opened the door, he found his mother and wife murdered. The appellant reported the incident and pursuant thereto a case under section 302, P.P.C. Was registered against Najibur Rehman brother-in-law of the appellant, vide F.I.R. No,259, dated 18-6-2000, Police Station City D.I. Khan. The motive the occurrence was a dispute over the money which was taken by the said Najibur Rehman as a loan which was subsequently retained by him as a share of his wife in the legacy of her father.
Notwithstanding the fact that Najibur Rehman who was later examined as P.W.16 was charged directly for enacting this tragedy, he was not treated as an accused at any stage. Instead the table was turned on the complainant and he was looked at as the chief suspect behind this crime.
During the course of investigation when many circumstances tending to disclose the complicity of the appellant in the crime, came to light, the Investigating Agency after his arrest and completion of investigation sent him to the learned Judge Anti-Terrorism Court for trial who on its conclusion sentenced him to death on three counts for killing his mother, his wife and the unborn baby she was carrying in her womb, under section 302, P.P.C. And also awarded a compensation to the tune of Rs,1,00,000 to the legal heirs of Mst. Tillat Yasmin under section 544-A Cr.P.C., vide his judgment dated 29-5-2003. Hence this appeal and murder reference for the confirmation of death sentence.
2. It was argued by the learned counsel for the appellant that investigation in this case was dishonest and mala fide from the very inception as the police investigating the case did everything with a set mind to pin crime on the appellant and in this excitement forgot to fulfil the requisite formalities laid down in sections 169 and 173 of the Cr.P.C. In spite of the fact, that all the material collected in this behalf tended to incriminate the said Najibur Rehman especially when the motive also lay on his part to do away with the life of deceased Hussina. He next argued that though an out of the way effort was made to strain every evidence against the appellant, yet the Investigating Agency failed to collect any evidence as could prove that it was the appellant who killed his mother and wife particularly when the latter was on her family way. When the deceased mother, he submitted, transferred all of her property to her son as is evident from the deed dated 23-5-1997 which is Exh.D.W.3/1 on the record, there, could be no conceivable motive on his part to kill his mother and wife. With regard to the evidence of PW..1, the learned counsel submitted that it beside being planted and riddled with afterthoughts and improvements, is not credit worthy, moreso when there was no entry in the relevant register to show that the appellant ever came to his shop for the repair of his pistol. While referring to the statement of the other' P.Ws., the learned counsel argued that though a systematic effort was made to hush up evidence against Najibur Rehman and create one against the appellant yet no evidence of the type could be created as could reasonably lead to the hypothesis that it was the appellant who was behind this crime. The learned counsel to support his contentions placed reliance on the case of Ali Khan v. The State 1999 SCM R 955.
3. As against that, the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant by referring to the statement of P.Ws. In general and P.Ws.1, 2, 4, 5, 16, 17 and 19 in particular argued that the raving lust of the appellant to have more and more money created bad taste between him and his mother whose logical end inevitably found an expression in death of the two deceased. He next argued that presence of Sindhi cap and long sized Chapple corresponding to the size of P.W.16 were deliberately planted on the spot by the appellant to detract the Investigating Agency from investigating the case on proper lines but the disclosure made by P.Ws.1, 2, 4, 5, 16, 17 and 19, leaves no doubt that it was the appellant who committed this crime to grab all that what could be distributed amongst the legal heirs on the demise of his mother. The death of Mst. Tillat Yasmin, he next argued, is quite obvious and understandable when she being witness of the gruesome murder could not be left alive to depose against him, therefore, the appellant was rightly held guilty and awarded the death sentence.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. The prosecution to prove its case examined as many as 19 witnesses but we would discuss the witnesses whose testimony is significant for the purposes of this case.
6. P.W.1 who is an arms mechanic stated in his evidence that the appellant brought a pistol on his shop for repair and that on its repair he charged Rs,30 from the latter. The question crops up as to how did the Investigating Officer come to know that the arm used in the commission of the crime suffered from some defect and that it was ever repaired by P.W.1, when there is also nothing even in the police statement of the appellant to show that there was a defect in his pistol and that it was repaired by the P.W. Assuming that it was taken by the appellant to the P.W. For repair but how could he remember the appellant and the arm so brought, when many persons come to his shop for repair of their arms. Apart from this, when every arm repaired is required to be entered in the relevant register along with its licence, what was that extraordinary in this case that neither the arm nor its licence was entered in the relevant register. When no explanation much less plausible can be found, we have no hesitation to hold that he is a planted witness and as such is not worthy of reliance.
7. P.W.2 stated that the appellant while being in police custody pointed out that he purchased a cap from him but how could the P.W. Testify about this fact when it bore no specific trade or any other mark to show that it was the same cap which was purchased by him from his shop. Though the I.O. Deposed in the Court that the appellant while being in police custody pointed out the shop wherefrom he purchased the cap but it being inadmissible will not have any probative value.
Similarly the statement of P.W.8 does not prove anything against the appellant when a person selling Chapples on a Push Cart cannot be expected to remember his customers when they are countless in number, unless of course, there is something special either about the Chapples or the person purchasing them. In this context the testimony of both the P.Ws. Because of its being unnatural and unconformable to common human experience has to be left out of account.
8. P.W.4 who is the real sister of the appellant deposed about the motive on the part of the appellant to commit this crime by stating that he was in the habit of teasing her mother in order to collect money from her which she used to receive as pension of her own and that of her late husband but at the same time she also turned the guns towards her husband, though unwittingly when she admitted that there was some litigation in which her father appeared as a witness against him.
9. P.W.5 by giving evidence on the same line though spoke about a dispute over money in between the mother, the son and the son-in-law but in the same breath he admitted without any reservation in his cross-examination that his deceased sister never disclosed anything about any such dispute with the appellant, so the story relating to motive, if at all, true cannot be used against the appellant when it can well be used against P.W. No,16 as well.
10. P.W.6 who simply brought the two deceased ladies from the house of Tariq Javed at the instance of the appellant did not state anything as can link or tend to link the appellant with the crime. P.W.7 though stated about providing stair to the appellant to enter the house but did not state anything as could even remotely connect the appellant with the crime.
11. P. W.11 furnished the details about the investigation but there is nothing in his evidence as could conclusively prove that it was the appellant who. Killed his mother and wife. However, his benign attitude towards the person charged in the F.I.R. For committing the crime is too apparent to be ignored, when there is nothing on the record that he was arrested and later on let off in terms of section 169 or 173, Cr.P.C. Similarly P.W.12 does not state anything in his statement as could give a hint that it was the appellant who engineered this unhappy incident. P.W.14 deposes about the gift deed at the instance of deceased Mst. Hussina but again his testimony does not give any clue as could reasonably lead to the inference that it was the appellant who was at the back of this crime.
12. P.W.16 said a lot about the dispute between the appellant and his mother but at the same time admitted many things which also drag him in the arena. Not only that but also the fact that he was not on visiting terms with his mother-in-law ever since January, 2000. His evasive reply that he does not remember whether the number of his pistol is 748 will set the Court on its guard against placing implicit reliance on his testimony when the number of the pistol recovered from the spot also bears the same number. The presence of a Sindhi cap and Chapples from the spot of occurrence may become more meaningful as according to the evidence on the record, he often wears such type of cap and the size of the Chapples corresponds to his size, thus the story projected by P.Ws.2 and 8 as to pointing out of the shop and the push cart wherefrom the aforesaid articles were purchased appears to be a product of concoction and thus, unworthy of reliance because it is evidence of surrounding circumstances which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics but not the one which is contrived and created to make out a case against an accused. In the case of Fazal Elahi alias Sajawal v. The Crown PLD 1953 FC 214, the Federal Court while attending to this aspect held as under:-- "Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
13. P.Ws.17 and 19 a brother and the father of deceased Mst. Tillat Yasmin respectively gave detailed statements showing a tug of war between the deceased mother, her son and son-in-law over the assets and property but these narrations, even if true, at their best raise suspicion as to the involvement of the appellant in the commission of the crime but do not provide links as could form a chain and connect him therewith. Once the chain is broken and the circumstances on the record are rendered capable of explanation on other reasonable hypothesis, it cannot be said that the case against the appellant is proved beyond any shadow of doubt, because suspicion, however, strong it may be, cannot take the place of truth. It is settled principle of criminal jurisprudence that circumstantial evidence can only form basis for conviction when it is incompatible with the innocence of the accused and is incapable of explanation on all other reasonable hypothesis than that of the guilt of the accused. It was held in A the case of Ali Khan v.. The State (supra) that where the case is resting on the testimony of circumstantial evidence, no chain in the link should be missing and that all the circumstances must lead to the guilt of the accused.
14. When seen in light of the foregoing discussion, we do not think, the case against the appellant has been proved in accordance with the' requirements of law, therefore, it will not be in accord with safe administration of justice to maintain conviction of the appellant.
15. For the reasons discussed above, this appeal is allowed, the conviction and sentence recorded by the trial Court are set aside and the appellant is acquitted of the charge. He be set free forthwith, if not required in any other case. The murder reference is thus, answered in negative.