1. ' JEHANZAIB RAHIM, J.---By this judgment we propose to dispose of. Cr.A. No,480/2005 and Cr.R.No,127 of 2005 as both are directed against the judgment dated 5-7-2005 passed by the learned Additional Sessions Judge III, Nowshera whereby appellants, Fazal Maula, Rahatullah, Anwar Shad sons of Badshah Gul, Badshah Gul son of Rustam Khan and Attaullah son of Nasrullah Khan, were convicted under section 302(b), P.P.C. Read with section 109 ibid and sentenced to imprisonment for life and shall also pay Diyat to the legal heirs of the deceased.
2. ' Brief facts of the case are that complainant, Ihtisham-ur-Rehman reported to Rehmat Shah, S.I.
3. On the spot that he along with his sister Mst. Farhat Jabeen in a Motorcar No,LHM-14 driven by Rahatullah (appellant No,2), was returning from Village Kandi Taza Din to the village Pashtoon Ghari and, when he reached near the place of occurrence, he found that some branches of tree were lying on the road, Rahatullah stopped the car and in the meanwhile an unknown person duly armed with pistol appeared and opened the rear door of the car. He asked his sister to hand over whatever she had and with these words he fired a shot at his sister and without saying anything gave butt blows to Rahatullah and then escaped from the spot. She with the fire-shot sustained injuries on her head and was immediately removed to the Civil Hospital Pabbi, where she succumbed to the injuries. Rehmat Shah, S.I. Recorded the report in the shape of Murasila and sent to the police station for registration of the F.I.R. Accordingly, a formal F.I.R. No,259 dated 13-4-2001 was registered against an unknown person under section 302/109, P.P.C. At Police Station Pabbi.
4. ' The investigation in pursuance of the above was carried out. Rehmat Shah, S.I. Soon thereafter reached the Civil Hospital Pabbi, prepared the injury sheet and inquest report of the deceased and sent her dead body to the mortuary for post-mortem examination where the Medical Superintendent, for lack of facility, referred the dead body for autopsy to KMC, Peshawar. He prepared the site plan, collected bloodstained clothes of the deceased and recorded the statements of some of the P.Ws. Ain-ud-Din, Inspector recovered pillar, broken branches of tree, damaged motorcar along with registration book, made addition in the sit plan on the pointation of complainant, recorded the statements of P.Ws. Qazi Inamullah, DSP took into possession revenue documents, arrested appellant Fazal Maula and got his custody, recorded the statements of P.Ws.
5. As well as of appellant Fazal Maula, obtained warrants under section 204, Cr.P.C. And proclamation notices under section 87 ibid against the appellants.
6. ' The appellants, on completion of investigation, were challaned to the Court for trial. The copies of the relevant documents as required under section 265-C, Cr.P.C. Were supplied to them. The charge was accordingly framed against them to which they pleaded not guilty and claimed trial.
7. ' The prosecution in order to prove the charge and substantiate the allegations levelled against the appellants, produced thirteen witnesses at the trial. Abdur Rauf, LHC (P.W.1) was the marginal witness to the recovery memo. Exh.PW-1/1 vide which the Investigating Officer took into possession bloodstained garments of the deceased. Dr.Munila Khattak (P.W.2) had examined the dead body of the deceased and found fire-arm entry wound on the right side skull from midline above the ear.
8. Brain matter was oozed out and underlying bone was fractured. Fire-arm exit wound on the left side skull from midline above the ear and underlying bone was fractured. The blackening present inside and outside the wound. Adam Khan, Inspector NAB (P.W.3) had submitted complete challan in Court. Badan Khan, A.S.I. (P.W.4) had registered the F.I.R., Exh.PA. Zamir Khan was also examined as P.W.4, who had escorted the dead body to the mortuary for post-mortem examination. Khadim Hussain P.W.5) had identified the dead body. Muhammad Iqbal, S.I. (P.W.6) was marginal witness to the recovery memos. Exh.PW-6/1 and Exh.PW/6/2.Qazi Inamullah, D.S.P. (P.W.7) had prepared the recovery memo.Exh.PW-7/1 vide which he had taken into possession revenue documents, Exh.P-1 to Exh.P-11, arrested appellant Fazal Maula and vide application Exh.PW-7/2 got his custody, recorded the statement of P.Ws as well as of appellant Fazal Maula, obtained warrants under section 204, Cr.P.C. And proclamation notices under section 87 ibid against Badshah Gul, Rahatullah, Anwar Shad, Ataullah and Mst. Gulzara vide applications Exh.PW-7/4, Exh.PW-7/5 and Exh.PW/7/6. Dauran Shah, Constable (P.W.8) had met appellant No,5 before the occurrence, who apprised him about the occurrence and accordingly went to the spot. Hawaldar Khan, H.C. (P.W.9) was entrusted with warrants under section 204, Cr.P.C. Against appellants and Mst. Gulzara alias Mastana vide Exh.PW- 9/1 to Exh.PW-9/4 but returned unserved vide Exh.PW-9/5 to Exh.PW-9/8. Similarly, he was entrusted with proclamation notices, Exh.PW-9/9 to Exh.PW-9/12 and, except the proclamation notice of Mst.
9. Gulzara, the remaining notices were returned un-served as he was informed that the appellants had approached the Court for pre-arrest bail. Muhammad Ali, S.-I. P.W.10) had recorded the statement of appellant, Fazal Maula under section 161, Cr.P.C. And produced him before the Court for police custody, Muhammad Ihtisham-ur-Rehman Khan, complainant (P.W.11) had reiterated the entire occurrence on oath and further deposed that on the day of occurrence he had charged nobody for the murder of his sister and later on he came to know that his sister was killed by the appellants. The motive for the occurrence was misappropriation of cash amount of the deceased's husband and attempt to outrage the deceased's modesty during her stay at USA by the appellant, Badshah Gul. Ain-ud-Din, Inspector (P.W.12) had taken into possession a pillar vide recovery memo.
10. Exh.PW-6/1, motorcar Exh.P-2 bearing Registration No,LHM-14 in the name of Badshah Gul with broken front head light and window pan vide recovery memo. Exh.PW-6/2, made addition in the site-plan Exh.PB on the pointation of complainant and recorded the statements of P.Ws. Under section 161, Cr.P.C. He was well-conversant with the handwriting of Rehmat Shah, S.I. And verified the murasila Exh.PA/1, recovery memo. Exh.PW-1/1, site plan, Exh.PB, injury sheet Exh.PW-12/2 and inquest report Exh.PW-12/3 of the deceased. On the written request of prosecution, Mst. Zakia Begum, mother of the deceased was examined as C.W.13. She deposed that the deceased along with Ihtisham-ur-Rehman, at the instant of Haji Gul, had accompanied Rahatullah to Hayatabad, Peshawar for the purchase of plot. She, at about 9-00 p.m., was telephonically informed by the daughter of appellant No,4 (Badshah Gul) that deceased had been fired at by the decoits.
11. ' The appellants, on the conclusion of prosecution evidence, were examined under section 342, Cr.P.C. They, in their statements, denied the charge and pleaded innocence. They did not opt to lead any evidence in their defence or appear themselves as their own witnesses in terms of section 340(2), Cr.P.C.. The trial Court, after hearing the parties and appraising the evidence convicted and sentenced the appellants in terms above stated. Feeling dissatisfied with the conviction and sentence, the appellants have come to this Court in the instant Cr.A. No,480/2005. Similarly, the complainant, Ihtisham-ur-Rehman being aggrieved with the sentence has filed Cr.R.No,127 of 2005 titled M. Ihtisham-urRehman v. Fazal Maula for enhancement of sentence.
12. ' We have heard the learned counsel for the appellants, learned counsel for the State duly assisted by the learned counsel for the complainant and have gone through the record with their able assistance.
13. ' The learned counsel for the appellants contended that the complainant (P.W.11) at the time of lodging the F.I.R. Had not charged anyone and, after due consultation, charged the appellants for the murder of his sister, Mst. Farhat Jabeen; except the statement of complainant made after 7 days of the occurrence/registration of F.I.R., there is no other evidence on the record to connect the appellants with the offence; motives alleged by the complainant for the offence was neither proved nor believed by the trial Court; alleged conspiracy to kill Mst. Farhat Jabeen by the appellants was not established and the circumstances are not such which could exclude the possibility of appellants' innocence and prove the charge against them beyond all reasonable doubt.
14. ' On the other hand, the learned counsel for the State and the complainant contented that statement of complainant (P.W.11) is duly supported by Dauran Shah (P.W.8) and Mst. Zakia Begum (C.W.13); it was not a case of decoity but a planned murder for the motives provided by P.W.11 and C.W.13 and appellants were the members of conspiracy to kill Mst. Farhat Jabeen and they had rightly been convicted and sentenced by the trial Court.
15. ' As evident from the record, Ihtisham-ur-Rehman, complainant (P.W.11) is the brother of the deceased, Mst. Farhat Jabeen and also an eye-witness of the occurrence. The appellants Nos.1 to 3 are the brothers and No,4 is the father of Haji Gul, the husband of deceased. Attaullah is the cousin of appellants. Rahatullah, the appellant No,2 being an eyewitness of the occurrence was driving the car in which the complainant and the deceased were travelling. The complainant knew the appellants being closely related but did not charge any of them for the crime. He did not charge even appellant No,2, who was present with him at the time of occurrence. He charged to an unknown person armed with pistol for firing at his deceased sister and delivering butt blows to the appellant. The first investigation in pursuance of the F.I.R. Was conducted by Rehmat Shah, S.I., who found the case one of murder but Haji Gui, the deceased's husband did not agree with the conclusion of investigation and requested through an application to the IGP, N.W.F.P., Exh.PW-12/D-2 for holding fresh investigation through the Crime Branch. The second investigation at the instant of deceased's-husband was conducted by Ain-ud-Din, Inspector (P.W.12), who concluded the incident as one of robbery.
16. ' The complainant in his statement dated 20-4-2001 recorded after 7 days of the occurrence/registration of the F.I.R. Had charged appellants for the murder of his sister on the basis of circumstances, which he had observed before and soon after the occurrence and for the motive disclosed to him by his mother (C.W.13). The motive for the offence was directed against the appellant No,4 (deceased's father-in-law) i,e, that he had attempted in America to outrage the modesty of deceased and for which he was sent back to Pakistan by the deceased's husband and for misappropriation of money of the deceased's husband. He deposed that he came to know about the first motive from his mother after the occurrence and about the second, from the deceased. Both the motives were neither proved by the prosecution nor believed by the trial Court as attempt to disgrace deceased had occurred in the first year of her marriage, which was performed twelve years before the occurrence and that too in USA. Such an old incident was not possible for the prosecution to prove particularly when the incident related to the deceased honour allegedly abused by her father-in-law. Equally, the misappropriation of money could have proved only by the deceased as the prosecution had no details of the money sent by the deceased's husband to the deceased.
17. ' The circumstances which led the complainant to charge appellants for the crime, were the suspicious activities of the appellants, Rahatullah and Anwar Shad before and after the occurrence, i,e, Anwar Shad had met him and had talked with Rahatullah in Taj Kutabkhana, Peshawar, Rahatullah had met with unconcerned persons in Hayataabd and later went to the office of PDA and had long conversation with someone on telephone; he was using delaying tactics on return from Peshawar so that night might fall; he instead of taking them to village Pashtoon Ghari, took them to Kandi Taza Din; on his way to Kandi Taza Din, appellant No,5, (Attaullah) along with 4/5 persons sitting in another car had exchanged gestures with Rahatullah and gave signals to him and ultimately when they went ahead and found the road blocked; Rahatullah instead of crossing over the small branches of tree, stopped the car and did not resist the culprit while firing at the deceased; Rahatullah was not beaten severely by the culprit but when he reached the hospital, he seemed to have been beaten severely and Badshah Gul, the appellant was not allowing the deceased's post-mortem to be conducted rather started preparing for her funeral.
18. The complainant did not disclose the above suspicions circumstances either in the F.I.R. Or in the his subsequent statement. Dauran Shah, Constable (P.W.8) deposed that he had seen deceased's car and after sometime the car driven by Attaullah. On the information of Attaullah, he went to the spot where he found the deceased in injured condition. He left the injured on the spot and went for searching accused. He, in cross-examination, expressed his ignorance regarding facts observed by him at the place of occurrence, whether the car was lying in a ditch or parked on the road, road was blocked with cement pillar or branches of tree, distance between the place of occurrence and Kandi Taza Din, his meeting with Alam and Azam, hearing the report of fire-shots prior to the occurrence about which he had earlier expressed himself in this statement under section 161, Cr.P.C. It is interesting to note that he had remembered the motorcars of complainant and the appellant with registration numbers but not the crucial facts, which he, as first police official who reached the spot, might have observed and was supposed to know and note with responsibility.
19. The deposition of Mst. Zakia Begum (C.W.13), the mother of deceased was totally hearsay and reiteration of, facts already stated by the complainant with slight improvement in which she had attempted to implicate Haji Gul, her son-in-law in the crime for securing the deceased's life insurance of 70,00,000 (seven million) dollars from a Insurance Co. In USA.
20. ' The trial Court, while convicting appellants, had relied upon the evidence of Dauran Shah (P.W.8), Ihtisham-ur-Rehman (P.W.11), Mst. Zakia Begum (C.W.13) and in support thereof on the post- mortem report, deceased's blood-stained garments, motorcar having bullet marks and recovery of cement pillar. In the circumstances, whether the above evidence would be sufficient to prove existence of conspiracy to kill Mst. Farhat Jabeen or the circumstances were such which exclude the possibility of innocence of appellants.
21. It is settled law that in order to establish conspiracy, the prosecution has to prove agreement between the appellants to kill deceased . Generally, the agreement between the conspirators cannot directly be proved but its existence can certainly be inferred from the facts established on the record. The prosecution witnesses had not mentioned either the names of conspirators or their agreement to kill or the names of witnesses of conspiracy. No evidence whatsoever of the conspiracy or sequence of circumstances from which the existence of conspiracy can be inferred was led at the trial. No inference of conspiracy to kill can be drawn from the facts narrated by the P.W.8, P.W.11 and C.W.13. No evidence either direct or circumstantial of any overt act or omission is available on the record to suggest a pre-concert or a common design between or amongst the appellant to commit Qatl-i Amd of the deceased. It is equally settled that in order to record conviction for a murder charge, circumstantial evidence must be of a high value and degree and all circumstances must lead to the guilt and be wholly incompatible with any reasonable hypothesis of the innocence of accused; Mst. Sairan alias Saleema v. State PLD 1970 SC 56, Muhammad Aslam v. Muhammad Zafar PLD 1992 SC 1.
22. ' Similarly, the medical evidence would only disclose the cause of death etc. And could never indicate the person who caused the fatal injury to the deceased. In Muhammad Iqbal v. Abid Hussain alias Mithu 1994 SCM R 1928 the Hon'ble Supreme Court had observed_that "medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence, duration between the injuries and the death and the presence of injured prosecution witness or the accused on the spot, but it would not connect the accused with the commission of the crime". The blood-stained garments would only prove through Serologist Report that the same were stained with the same group of human blood which the deceased had as the garments were proved to have taken out from the deceased's body at the time of autopsy or the blood recovered from the spot where the deceased was last found lying.
23. Similarly, the recovery of motorcar having bullet mark would prove that the hole in the car was made of firearm shot. The above evidence is not substantive/real but circumstantial, which could not independently prove the identification of the person, who had fired at the deceased or the car.
24. ' The trial Court had merely acted on presumptions and probabilities and convicted the appellants.
25. It is settled law that no one can be convicted on presumptions how strong it may be or probabilities how high it may be as the same could not be the substitute of real evidence/proof.
26. The P.W.11 did not charge the appellants in the F.I.R. And not even named them in his statements - subsequent to the F.I.R. He charged five appellants for a single fire-shot for the motives disbelieved by the trial Court. The statement of C.W.13 is based on hearsay. There is nothing on the record to believe conspiracy to kill the deceased and the circumstances are not such which could exclude the possibility of appellant's innocence. The prosecution has failed to discharge his burden in the manner laid down by the Hon'ble Supreme Court in the case of Muhammad Luqman v. State PLD 1970 SC 10 wherein it was observed: "It may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of.Doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught."
27. Consequently, the appeal is accepted. The judgment dated 5-7-2005 is set aside and the appellants are acquitted of the charge. They be released forthwith if not required in any other case.
28. The Cr.R.No,127 of 2005 titled M. Ihtisham-ur-Rehman v. Fazal Maula for the enhancement of sentence is dismissed.
29. ' Above are the reasons for our short order dated 2-11-2005.