1. non-mentioning of watch in the F.I.R. Does not create any doubt in the prosecution tale. The learned counsel further argued that complainant also testified that all three accused persons called out Muhammad Shafique, but no suggestion was put to the complainant by the defence about the absence of Shoaib accused. The learned counsel maintained that Qazi Abdul Latif P.W.4 has clearly stated that some unknown person had made a telephonic call to him to ask the complainant to arrange rupees 10 lac ransom for the liberty of the deceased. The learned counsel, after referring to the certain portions of the prosecution evidence, submitted that all the recoveries have been proved by the prosecution through 'reliable and convincing evidence. The learned counsel craved that injuries Nos.1 to 8 mentioned in post-mortem report are by itself sufficient to prove the story of prosecution which shows multiple scratches and abrasions upon the body of the deceased. It also shows three injections marks in view of Lt. Cubital fossa. The learned counsel further maintained that according to the opinion of Dr. Abdus Salam Exh.P.R., death was possible due to Pentothal injections. The learned counsel pressed into service the submission that the report of Chemical Examiner does not negate the prosecution version because the Chemical Examiner has not reported that he could not find out the traces of Pentothal injections. The learned counsel while dealing with the statement of Dr. Fardous (D.W.5) argued that according to Dr. Muhammad Fardous Chaudhary, if Pentothal injection is injected without precautionary measures, death can occur, therefore, the prosecution version stands proved by the defence evidence. The learned counsel finally submitted that the accused persons have committed two offences, one kidnapping for ransom and the other murder of the deceased, therefore, taking into consideration the intention of the accused persons and having knowledge of the act committed, the accused persons are to be sentenced to death on two counts which is normal penalty of murder. In support of his contentions, the learned counsel cited the following authorities:-- ' (1) 1969 SCM R 558; (2) 1973 PCr.LJ 722; (3) PLD 1975 (AJK) 12; (4) PLD 1979 SC (AJK) 130; (5) 1985 PCr.LJ 391; (6) 1996 PCr.LJ 1522; (7) 1996 PCr.LJ I 144 (SC AJ&K); (8) 1997 PCr.LJ 331; (9) 2001 YLR 1924;
(10) 2001 PCr.LJ 524..
2. ' Mr. Tayyab Gillani, the learned Assistant Advocate-General, appearing on behalf of the State, has fully owned and supported the arguments advanced by the learned counsel for the complainant.
3. ' I have given my dispassionate thought to the arguments addressed at Bar and very carefully examined the record. The prosecution case rests wholly on circumstantial evidence, therefore, the prosecution evidence has to be appraised in detail so that it may be ascertained as to whether the evidence is of such nature from which an inference of guilt can be drawn and the circumstances form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused persons and none else.
4. ' In support, the prosecution examined Mst. Zahida Parveen (P.W.1) who testified that on 27-4-1997 at 10-00 a.m. Shoaib accused called out her son Muhammad Shafique but he did not go out.
5. Thereafter at 10-30 a.m. Muhammad Shafique went out but did not come back therefore, she started locating him. Meanwhile, at about 3-00 p.m. Tariq Mahmood (P.W.2) and Muhammad Zaheer-ud-Din (P.W.3) told her that they saw Muhammad Shafique riding in a red Car No,5674 IDD with the accused persons going towards Bandral toll post. She strongly suspects that accused persons have kidnapped her son for ransom and have taken him away to some unknown place.
6. She also testified that a written F.I.R. Exh.P.A. Lodged by her at Police Post Thothal Mirpur, was duly signed by her. The aforesaid report Exh.P.AA. Was registered at Serial No,23 of Daily Register of Police Post at 1610 hours, which was also signed by her. The aforesaid report No,23 was sent by Ghulam Akbar S.-I. Police (P.W.19) to City Police Station Mirpur where a Case No,110 of 1997 was registered by Mirza Tufail Hussain S.-I./S.H.O. Police (P.W.20).
7. ' The learned counsel for the accused-appellants laid great stress upon the point that Parcha Illat Exh.P.AA./1 was not signed by Mst. Zahida Parveen, therefore, it loses its importance. The learned counsel further contended that the case was not registered on the basis of F.I.R. Exh.P.A. And furthermore Ghulam Akbar S.-I. Police, who registered the F.I.R. In Daily Register, was also not produced before the trial Court, therefore, it has been proved that F.I.R. Was filed after the registration of case, I do not find much substance in this plea of the learned counsel because the F.I.R. Exh.P.A. Was lodged at Police Post Thothal, which was duly registered in Daily Register Exh.P.AA.
8. Both the F.I.R. Exh.P.A. And Daily register Exh.P.AA. Were signed by Mst. Zahida Parveen. The copy of report No,23 Exh.P.AA./4 was sent to City Police Station for registration of case whereat a Case No,110 of 1997 was registered in the light of endorsement Exh.P.AA./5, which was duly proved by Mirza Tufail Hussain (P.W.20) S.H.O. City Police Station Mirpur, who has explained the reason during his statement before the trial Court that Parcha Illat Exh.P.AA./1 does not bear the signature of Mst.
9. Zahida Parveen, complainant, because she did not appear before him. In this view of the matter, it cannot be said that the F.I.R. Was registered after commencing the investigation.
10. ' At this stage, it will not be out of place to mention that a mere defect in recording the F.I.R. Or even recording of F.I.R. After the investigation, does not make the whole trial illegal. In this regard reference can be made to a case titled as Ali Asghar Khan v. The State 1973 PCr.LJ (AJK) 722, wherein it has been opined at page 727 of the report in the following manner:-- "It is no doubt correct that when the F.I.R. Is entered after the police had started the investigation, the first information report is not admissible into evidence but this cannot mean that we can throw out the prosecution case on the score of the first information report having been entered after the start of the investigation by the police."
11. ' The same view was affirmed in a case titled as Sajawal Khan v. The State PLD 1979 SC (AJK) 130, wherein it has been laid down at page 136 of the report as under:-- "It is further contended that F.I.R. Was lodged after start of the investigation and as such it loses its evidentiary value. According to the information given to the A.S.-I. Muhammad Akram, this argument is a fallacious one and cannot be accepted. F.I.R. Is never considered as a substantive piece of evidence and carries small evidence in it. Nevertheless, whatever Was said to Muhammad Akram A.S.-I. Was exactly reproduced in F.I.R. In extenso by Faqir Muhammad P.W.1. Apart from it, even if the F.I.R. Is excluded from consideration, it makes little difference as it is otherwise proved beyond doubt that the accused had committed the offence exactly in the fashion in which the prosecution alleges."
12. ' The above mentioned principle was reaffirmed in the case of Khalid Hussain and another v. The State and another PLD 1984 Sh.C. (AJK) 1, wherein it was held at page 8 of the report as under:-- "The F.I.R. Was always used as corroborative piece of evidence. In this view of the matter, even if it was accepted for the sake of argument that the F.I.R. Which was not a substantive piece of evidence, was prepared after the preliminaries, it would not affect the case of the prosecution so much so to record acquittal of the convict."
13. ' The same view was also affirmed in a case titled as Mst. Rehmat Bibi v. Muhammad Najib and another 1997 PCr.LJ SC (AJK) 331, wherein it was observed at page 336 of the report that:-- "Even if an F.I.R. Not proved the sentence and conviction of an accused person cannot be set aside, if the case is otherwise proved."
14. The above mentioned authorities lay down the rule that the F.I.R. Is not a substantive piece of evidence and even if an F.I.R. Is recorded after commencing of formal investigation, it does not destroy the whole trial and it will not materially affect the main case of the prosecution.
15. ' It was also agitated by the learned counsel for the accused-appellants that the writer of the F.I.R.
16. Is not known according to the prosecution evidence, therefore, it cannot be considered as a genuine report. In support of Debendra Chandra Sarkar and other's case AIR 1934 Cal. 458 was cited, wherein it was recorded by the learned Judge that if the writer of F.I.R. Is not examined it cannot be ascertained as to whether the writing represented a genuine version given by the informant himself or a version coloured by interference from other sources.
17. ' In the light of above discussion and the ratio decidendi in cases mentioned above, this point has been discussed in detail, therefore, the authority cited by the learned counsel for the convict- appellant needs no further analytical survey.
18. The evidence of last seen was given by Tariq Mahmood (P.W.2), Muhammad Zaheer-ud-Din (P.W.3) and Abid Hussain (P.W.5). According to Tariq Mahmood (P.W.2) and Zaheer-ud-Din (P.W.3), the deceased was last-seen alive in the company of accused. They saw them together riding in a car, near workshop situated in Sector F/1, Mirpur at about 11 O'Clock while going towards Bandral Toll Post but Muhammad Shafique did not come back alive and thereafter his dead body was recovered on the pointation of accused-appellants. In spite of lengthy cross-examination, the testimony of both the aforesaid witnesses could not be shattered. However, the evidence of Abid Hussain (P.W.5) as last-seen evidence cannot be taken into consideration. His statement under section 161, Cr.P.C. Was recorded on 10-5-1997 after 13 days of the occurrence but he could not furnish any plausible explanation about the fact that if the deceased was last-seen alive in the company of accused by him then why he kept quiet and did not inform the police. Therefore, his evidence is not worthy of any credence, which is ruled out of the consideration.
19. ' It was vehemently argued by the learned counsel appearing on behalf of convict-appellant that if at all both the P.Ws. Knew that the deceased was last-seen in the company of accused and they also told this fact to the complainant then why P.Ws. Went to find out the whereabouts of the deceased from different people and as to why the complainant chose for the proclamation (URDU TEXT). This argument of the learned counsel for the accused-appellants did not cut much ice because it was natural reaction of the complainant to try her best to find out her nine years old son whose father was out of the country for earning his livelihood, therefore, she being alone mother left no stone unturned to find out her dear one. In this respect, the contention of the learned counsel, that both the prosecution witnesses are closely related to the complainant, therefore, their evidence cannot be relied upon, is not tenable and is rejected because it is by now a celebrated principle of law that mere relationship is no ground for discarding the evidence of related witnesses who otherwise seem to be natural and truthful witnesses. An interested witness is one who has motive for falsely implicating an accused, therefore, relationship with the deceased will not be sufficient to brush aside the veracity of witness if the evidence rings true. A plethora of authorities can be referred to in support of the proposition but I have decided to quote only two cases Abdul Rasheed and 3 others' case 2001 PCr.LJ 524 and Abdul Aziz and another's case 2001 YLR 236.
20. ' The other substantive circumstance which fully supports the prosecution story, is recovery of dead body on the pointation of Muhammad Asif, accused-appellant, in presence of Abdul Aziz (P.W.6) and Muhammad Khalil (P.W.7). Both the above named witnesses are impartial and their evidence is quite reliable and confidence inspiring. Similarly, the recovery of Chappal of the deceased at the instance of Muhammad Asif, accused, also stands proved by Muhammad Zaheer-udDin (P.W.3) and Muhammad Abdullah (P.W.8). The factum of recovery of plastic bag P.5 containing two disposable syringes of 10 cc P.6, two used Pentothal sodium injections P.7, two used sterile water P.8, one Pentothal injection P.9 and one sterile water P.10, taken into possession from Gayan jangle nearby the dead body of the deceased at the instance of Shahid Anjum, accused, was supported by the above stated P. Ws. A watch of the deceased P.1, recovered from the house of Shahid Anjum, accused, at his instance was also proved by Tariq Mahmood (P.W.2) and Zaheer-ud-Din (P.W.3).
21. The circumstance of hiring of a Car No,5674 IDD P.11, from Kh. Muhammad Ishaq (P.W.11), a receipt of rent book P.13, a photostat copy of identity card of Shahid Anjum, accused, P.14, signature of Kh.
22. Muhammad Ishaq P.15 on the receipt and two currency notes of rupees five hundred P.16 and P.17 which were received by Kh. Muhammad Ishaq as fare of car were clearly proved by Kh.
23. Muhammad Ishaq (P.W.11) and Muhammad Ehsan Head Constable Police (P.W.12). The site plan Exh.P.L. Is another piece of circumstantial evidence proved by Muhammad Rashid Patwari (P.W.17) which proves the places of recovery of dead body, the recovery of Chappal of the deceased, the recovery of used and unused Pentothal injections along with disposable syringes and sterile water etc. ' The prosecution story also stands supported by medical evidence, which shows three injection marks in view of left cubital fossa along with other multiple scratches and abrasions with leaves of bushes and thorns on face, legs and other parts of the body of deceased. The cause of death has also been described due to intravenous injections of a sedative/hypnotic drug leading to cardio pulmonary arrest.
24. ' The learned counsel zealously argued that the post-mortem report Exh.P.N. Cannot be relied upon because according to the report all organs of the body of the deceased were found healthy and according to the report of Chemical Examiner poison .Was not detected from his body, therefore, the cause of death is fictitious which cannot be taken into consideration. Even, otherwise, the non- appearance of Dr. Abdul Salam (P.W.1) also adversely affects the prosecution case whereas on the contrary, the evidence of Dr. Muhammad Fardos Chaudhry (D.W.5) negates the prosecution version. In my careful consideration, this argument having no substance for the simple reason that the post-mortem has been conducted and report has been prepared by Dr. Abdul Salam (P.W.18) who could not appear before the Court on account of non-availability and Muhammad Ishtiaq record-keeper who was, well-conversant with the handwriting and signatures of the said doctor, was produced by the prosecution to identify and verify the handwriting and signature of Dr. Abdul Salam, who has testified and verified that the report Exh.P.N. Was written and signed by Dr. Abdus Salam. It is settled position of law that in case of non-availability of a witness, the secondary evidence is admissible under Article 46 of Qanun-e-Shahadat Order.
25. ' In the instant case, an application was filed by prosecution before the trial Court that Dr. Abdus Salam has gone to a foreign country and his presence cannot be procured without unreasonable amount of delay, therefore, Muhammad Ishtiaq Record Keeper DHQ Hospital, Mirpur, who is well- conversant with the signatures of Dr. Abdus Salam, may be summoned as secondary evidence.
26. The trial Court after applying its judicious mind granted permission vide its order, dated 6-12-2001.
27. Thereafter, the evidence of Muhammad Ishtiaq Record Keeper was recorded, which is admissible in evidence. In this view of the matter, the provisions of Article 46 of Qanun-e-Shahadat Order about the non-availability of the witness who could not be procured without unreasonable amount of delay or expense were fully complied with. My aforesaid view stands fortified by a case titled as Muhammad Anwar v. The State PLD 1997 Lah.
28. 202.
29. ' It has also been admitted by Dr. Muhammad Fardous Chaudhary (D.W.5) that the death is possible by injecting a Pentothal injection in absence of precautionary measures.
30. ' Let me deal with another point of objection raised by Ch. Ali Muhammad Chacha, the learned counsel for the convict-appellant, that in the light of statement of Mirza Tufail Hussain S.-I. Police (P.W.20), the recovery evidence is fake and doubtful, wherein he deposed that Ghulam Akbar, S.-I.
31. Police (P.W.19) (not appeared before the trial Court) told him at the night of occurrence that he has arrested the accused-persons and recovered the dead body whereas according to prosecution story all recoveries were made on 28th April, 1997 including the recovery of dead body. I have carefully examined the above stated deposition of Mirza Muhammad Tufail (P.W.20) and find that this contention of the learned counsel is not tenable because it is a casual assertion by an unconcerned witness which cannot destroy the case of prosecution. Neither the accused were arrested by him nor were the dead body along with other incriminating articles recovered by him.
32. The statement of Ghulam Akbar, S.-I. Polic(P.W.19), the Investigating Officer, could not be recorded because of his non-availability who had gone to Kosovo on official duty. Akram Hussain D.S.P.
33. (P.W.21) appended as secondary evidence, who deposed that he is well-conversant with the signatures of Ghulam Akbar. He recognized the signatures of Ghulam Akbar on all recovery memos. And the reports prepared by him. Furthermore, it is the case of prosecution that the dead body of the deceased was recovered on 28th April, 1997, along with recovery of Chappal of the deceased, injections and syringes, clothes of the deceased and the watch of the deceased. The post-mortem of the deceased was also performed on 28-4-1997 and all the relevant witnesses have deposed in like manner fully supporting the prosecution tale. The P.Ws. Have no ostensible reason to depose in like manner fully supporting the prosecution tale. The P.Ws. Have no ostensible reason to depose falsely against the accused-appellants. No enmity was proved between the P.Ws. And the accused-appellants, therefore, I do not find any justification to brush aside their straightforward and confidence-inspiring evidence on the ground that Mirza Tufail Hussain S.-I.
34. Police, an unconcerned witness, has given some undue concession to the defence.
35. ' It is necessary to note here that all the above P.Ws. Were subjected to lengthy cross-examination by the learned defence counsel but the defence failed to shake their testimony, so I see no reason to discard their evidence.
36. ' Asmat Ullah (P.W.10), a driver of ambulance, stated that on 28-4-1997 he went to Gayan Jungle, the place of recoveries, along with police and brought the dead body of the deceased in his ambulance and left in the mortuary is also a strong link in the chain of circumstantial evidence.
37. ' The inquest report Exh.P.H. Shows that the deceased was done to death by injecting Pentothal injections.
38. ' A perusal of injury form Exh.P.HH. Also shows three marks of injections, abrasions on face' and scratches marks on both feet. A letter addressed to C.M.O. DHQ Mirpur Exh.P.R. Dated 5-8-1997 for seeking his opinion along with opinion of Dr. Abdus Salam (P.W.18), shows that the death can occur due to Pentothal injection, which is also a strong circumstance to bring guilt home to the accused persons.
39. ' A trousers P.2 and a shirt P.3 of deceased Muhammad Shafique handed over by Dr. Abdus Salam and taken into possession vide recovery memo. Exh.P.H., further strengthens the case of prosecution.
40. ' The motive of the offence stands proved by the evidence of Qazi Latif (P.W.4), retired Section Officer, an impartial witness, who testified that on 27-4-1997 at 5-30 p.m. He received a telephone call and he was told that abductee son of Zahida Parveen is in their custody and he should tell Zahida Parveen to arrange ransom rupees ten lac. He further deposed that when he inquired about the caller, the telephone was disconnected.
41. ' I cannot subscribe to the view of the learned counsel for the appellants that if the accused - appellants had returned the hired car at 1-00 p.m. And before that they had committed the murder of the deceased then the question of making call for ransom does not arise. Suffice to note that the intention of the accused-appellants was to grab money from their close relative woman, whose husband was earning his livelihood in Saudi Arabia and he was supposed to be a rich person, therefore, in spite of the murder of the deceased they did not despond and put their best effort to despoil the complainant.
42. ' The accused-appellants also produced evidence in defence. Muhammad Ramzan and Zahid Hussain D. Ws. Tried to prove that on the day of occurrence accused Shahid Anjum was accompanying them to purchase wood for construction of his house, whereas Ghulam Farid deposed that Tariq Mahmood (P.W.2) asked him to proclaim that Muhammad Shafique is missing.
43. Aamir Hussain D.W. Brother of Muhammad Asif and Shoaib accused persons, also deposed in the like manner about the proclamation. Therefore, when both the versions are taken into a juxtaposition and appraised in its true perspective, the prosecution version is more probable, clear and confidence-inspiring whereas the version taken by defence seems to be improbable, concocted and afterthought. For the reasons, the accused-appellants simply denied the guilt in their statements recorded under section 242, Cr.P.C. And never raised any plea of 'alibi'. Similarly, in their statements under section 342, Cr.P.C. They also did not plead any specific defence of alibi and claimed to be innocent.
44. ' The next question which requires consideration is as to whether the chain of prosecution evidence has been broken on account of non-production of Nadeem Iqbal (P.W.14), Muhammad Hanif (P.W.15) and Muhammad Javaid (P,W.16) because according to the prosecution story, the Pentothal injections were purchased from Muhammad Hanif proprietor of Azeem Medical Store Jatti Dhari. The accused-appellants obtained petrol for their car from Nadeem Iqbal (P.W.14) and they asked for water from Muhammad Javaid (P.W.16). It needs to be emphasized that the prosecution was under no obligation to examine all the witnesses. A perusal of the record shows that Nadeem Iqbal (P.W.14), Muhammad Hanif (P.W.15) and Muhammad Javaid (P.W.16) were abandoned by the prosecution on account of being won over by the defence but the defence did not examine them as its own-witnesses or as a Court-witnesses, therefore, no adverse inference can be drawn against the prosecution. My aforesaid view finds support from a case titled Ali Asghar Khan v. The State 1973 PCr.LJ (AJK) 722, wherein the following principle was enunciated:-- "We agree with the learned Advocate-General that the prosecution is under no obligation to examine a witness whom they consider to have been won over and it is open to the defence to examine such witness as their own witness or to request the Court to examine such persons as Court-witnesses. The defence not having availed of these two remedies, no adverse inference can be drawn against the prosecution for their failure to examine Rafique and Abdul Hamid."
45. ' I have examined the authorities cited by the learned counsel for the accused-appellants. These are beyond the controversial issues and nothing is common with the instant case. For instance, in Muhammad Faisal Shahzad and others' case PLJ 2000 Cr. Case Lah. 123 the dead body of the deceased was not recovered on the pointation of appellant, therefore, the accused was acquitted of the charge. The other authorities lay down the principle that each circumstance must be satisfactorily established and if any particular circumstance is doubtful, the benefit of doubt goes to the accused or if there are two hypotheses which are possible one in favor of accused is to be given preference.
46. ' All the above mentioned circumstances of the prosecution story prove the fact that the accused- appellants hired a Car No,5674 IDD from Kh. Muhammad Ishaq (P.W.11) and kidnapped a nine years old boy, Muhammad Shafique, for the sake of ransom. During the occurrence they killed him by injecting two Pentothal injections and thereafter went to Gayan Jungle (Pirgali) and threw away his dead body which was later on recovered at their instance.
47. ' In light of above stated discussion, no glaring defect or any legal infirmity could be pointed out in the findings of the Court below. The P. Ws. Were found `Adil' during purgation. Circumstantial evidence has been found incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of their guilt. All the circumstances have been established beyond all doubt, therefore, furnish better basis for decision than any other kind of evidence.
48. ' So far as the case of Muhammad Shoaib acquitted respondent is concerned. It has been admitted by the prosecution that he was alighted from the car by other accused-persons before the commission of offence. No incriminating article was recovered on his pointation, therefore, he was not at all aware of the intention of other accused persons, thus, the benefit of doubt was rightly extended in his favor. In this view of the matter, the order of acquittal does not-warrant any interference by this Court, which is maintained.
49. ' The overall and accumulative affect of circumstantial evidence is that it is clear, convincing, trustworthy, confidence-inspiring and sufficient to prove guilt of both the accused-appellants, Muhammad Asif and Shahid Anjum beyond any shadow of doubt. Although, the trial Court did not discuss the mitigating circumstances for not awarding them the penalty of death, while it was incumbent upon the trial Court to give reasons after considering all the circumstances of the case and award the sentence which is in its view befitting because normal sentence which must (sic) the basis of following reasons, I am not inclined to enhance the sentence already recorded by the trial Court, therefore, the same is maintained:--
(i) The prosecution case is not supported by any ocular evidence.
(ii) The trial Court did not award the death penalty to the accused-appellants.
(iii) The name of writer of F.I.R. Is yet not known.
(iv) Ghulam Akbar, S.-I. (P.W.19), the Investigating Officer, and Dr. Abdus Salam were not produced before the trial Court and a valuable right of cross-examination was denied to the accused.
50. ' In view of the aforesaid position, it is not deemed expedient to interfere with the impugned judgment. It is, therefore, sustained and both the appeals are dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.