Rahmat Hussain Jafferi, J.--The present appeal is directed against the judgment dated 16.2.2001 passed by Anti Terrorism Court-III, Karachi in Special Case No, 177/2000 by which the learned Judge convicted the appellant under Section 302, PPC read with Section 6(c) of Anti Terrorism Act, 1997 (hereinafter referred to as the Act, 1997') and sentenced him to suffer imprisonment for life and fine of Rs, 1,75,000/- or in default thereof to suffer RI for three years; under Section 377, PPC and sentenced him to suffer RI for five years and fine of Rs, 25,000/- or in default thereof to suffer RI for one year; and under Section 365, PPC and sentenced him to suffer RI for two years and fine of Rs, 25,000/- or in default thereof to suffer RI for one year. The appellant was also extended benefit of Section 382-B, Cr.P.C.
2. The brief facts of case are that on 9.10.2000 at 7.30 p.m. deceased Bilal aged about 11/12 years, son of the complainant Wali Muhammad, went outside the house to play with other children but did not return to the house. Therefore, the complainant lodged the report of missing of his son on the same night at 1.30 a.m. of 10.10.2000. On the next day PW-1 Shahzad informed the complainant that the dead body of his (complainant) son was lying in sewerage gutter near House No, 4/980, Liaquatabad, Karachi. The complainant and other persons went there where they found the deceased lying with his hands tied. A blue colour shalwar was wrapped around his face which bore dry-cleaning shop numbers as 1411-T and 1389-A-1. A blue colour string was tied around the neck of the deceased. The complainant informed the incident to the police who arrived at the place of incident, prepared inquest report under Section 174, Cr.P.C. and recorded the statement of complainant against unknown culprits. The statement of the complainant was incorporated in 154, Cr.P.C. Book.
3. The police started the investigation. The dead body was sent to medical officer for examination and report. The doctor opined that unnatural offence was committed upon the deceased and the deceased died due to strangulation. The shalwar wrapped around the face of the deceased was sent to Chemical Analyzer. The dry-cleaning numbers mentioned on the shalwar where traced which belonged to the shops of the complainant and PW-7 Suhail Rana through which it was found that one Qasim had deposited the said shalwar. He was interrogated. Through him the police apprehended the appellant. After interrogation the appellant led the police to a room situated on second floor of his house where the complainant found chappal of the deceased. The police secured the same. Thereafter the appellant pointed out the place of recovery of the dead body.
The police, after usual investigation, challaned the appellant in the Court where he was tried and convicted as mentioned above under the impugned judgment.
4. We have heard the advocates for the appellant, complainant, AAG for the State and perused the record of this case very carefully.
5. The learned advocate for the appellant has stated that the case rests upon circumstantial evidence as there is no eye-witness in the case; that the circumstantial evidence has not been proved in accordance with law, therefore, the same is not reliable. He has further stated that the trial Court had relied upon the 164, Cr.P.C. statement of CW Qasim but before that the appellant was not provided 161, Cr.P.C. statement, as such, the said statement cannot be relied upon.
6. Conversely, the learned AAG has stated that the prosecution case rests upon circumstantial evidence; that the same has been proved in accordance with law. However, he has stated that before recording the 164 Cr.P.C. statement of CW Qasim the 161, Cr.P.C. statement of the witness was not provided the accused, as such, the said piece of evidence cannot be safely relied upon.
However, he has supported the impugned judgment.
7. We have given due consideration to the arguments, gone through the evidence with the help of learned advocate for the appellant and found that the prosecution case rests upon the following circumstantial pieces of evidence:--
(1) Appellant pointed out the place of incident;
(2) Appellant pointed out the place of recovery of dead body;
(3) Recovery of chappal of the deceased from the room of the appellant;
(4) Recovery of Shalwar found wrapped around the face of the deceased; and
(5) Statement under Section 164; Cr.P.C. of CW Qasim.
8. It is pointed out that there is no, eye-witness of the incident as the incident was un-witnessed.
The case rests upon the circumstantial evidence. The fundamental principle of universal application in the cases depending on circumstantial evidence is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt, as held in the cases of Zahid Hussain v. Crown (1969 SCM R 388) and Muhammad Nazir v. Mst: Saira (PLD 1970 S.C. 56). It is also well-settled principle that in circumstantial evidence case no link in the chain should be missing and all the circumstances must lead to the guilt of the accused as held in the case of Ali Khan v. State (1999 SCM R 955).
9. Keeping in view the above principle of law for appreciation of circumstantial evidence we have examined the above mentioned pieces of evidence through the evidence available on the record.
10. First we will take up the point of place of incident and recovery of chappal from the room of the house of the appellant which was shown to the police and witnesses by the appellant. It has been brought on record that the appellant led them to a room situated on the second floor of the house where he disclosed that he committed sodomy and murder of the deceased, where the complainant saw the chappal of the deceased, that was secured by the police. It is pointed out that the statement of appellant disclosing before the police officer that he committed the sodomy and murder of the deceased in the room is inadmissible in evidence in view of Article 38 of the Qanun-e-Shahadat Order, 1984. The trial Court should have not recorded such piece of evidence in the evidence. A distinction has to be made in confession of the accused and a discovery on the information given by the accused. Thus, from the evidence of these two witnesses it is apparent that the appellant had pointed out the room situated on second floor of his house where the complainant saw the chappal of the deceased and the police had secured it. This statement of both the witnesses has not been supported and corroborated by PW-2 Salim Din, mashir of the place of incident who was an independent witness and in whose presence the place of incident was seen by the police. According to him, the place of incident was situated on the first floor of the house and not on the second floor of the house. When confronted with the above position the learned advocate for the complainant and AAG could not controvert the same (sic) nor they could explain the above major contradiction in the evidence. In such a situation it is difficult to rely upon any one of the above two contradictory statements, therefore, a doubt has been created about the said recovery which is according to law is to be extended to the appellant, therefore, we are of the view that the prosecution has filed to prove the above piece of evidence beyond any reasonable doubt.
11. The second piece of evidence is the pointation of place of recovery of dead body. It is pertinent to point out that the said place was known to everybody, therefore, it cannot be termed as discovery within the meaning of Article 40 of Qanun-e-Shahadat Order, 1984. The learned advocate for the complainant and AAG have not relied upon the said piece of evidence.
12. Third piece of evidence is the recovery of shalwar which was found wrapped around the face of the deceased containing two dry-cleaning numbers. The said dry-cleaning numbers were traced and it was found that the shops belong to the complainant and PW-7 Suhail Rana. They recognized the said numbers and stated that the shalwar, as per their record, was deposited by one Qasim.
They further admitted that the father's name of said Qasim was not mentioned in their record and there were several Qasim residing in their area. In such a situation it was incumbent upon the prosecution to have connected this shalwar with CW Qasim, brother of the appellant. Qasim was examined as Court witness No,
4. After such examination prosecution was given an opportunity to cross-examine the witness but it is surprising to note that no question with regard to the said shalwar was put to the witness nor the shalwar was shown to him to Identify the same to be his shalwar so as to connect the same with the house of the appellant. In the absence of such evidence it cannot be held that the shalwar wrapped around the face of the appellant belonged to CW-4 Qasim, brother of the appellant, or to connect the said shalwar with the house of the appellant. The shalwar may be of any Qasim residing in the area where the dry-cleaning shops of complainant and PW-7 were situated. Thus, the prosecution has failed to connect the shalwar with the house of the appellant, hence it is very unsafe to rely upon such piece of evidence.
13. The learned trial Court has relied upon the statement of Qasim recorded under Section 164, Cr.P.C. for relying upon such piece of evidence it is to be proved that the same was recorded in accordance with law. Before recording such statement the appellant should have been provided copy of 161, Cr.P.C. statement of the witness so that he could have cross-examined the witness effectively. The Investigating Officer PW-9 and the Magistrate PW-8 did not state that before recording such statement the copy of 161, Cr.P.C. statement of the witness was provided to the appellant. On the contrary, the appellant examined himself and specifically stated that the police did not provide him a copy of 161, Cr.P.C. statement. The said piece of evidence went unchallenged as the learned Prosecutor did not cross-examine the appellant on the said aspect of the evidence.
Thus, it has been proved that before recording 164, Cr.P.C. statement of the witness the legal requirement was not fulfilled, hence it cannot be termed as a statement recorded in accordance with law. Therefore, the said statement cannot be treated as substantive piece of evidence, hence the learned trial Judge was not justified in relying upon the said statement. The learned advocate for the complainant and AAG have also not relied upon the said statement in view of legal defect in the statement.
14. It is an admitted position that the deceased died on account of strangulation and before that sodomy was committed upon him but the question is who committed the offence. The prosecution has relied upon circumstantial evidence which is not enough to justify the inference of guilt against the appellant. Therefore, following the rule laid down by the Hon'ble Supreme Court of Pakistan in the above mentioned authorities we are of the considered view that the prosecution has miserably failed to prove the case against the appellant.
15. Above are the reasons of our short order dated 21.12.2005, by which we had allowed the appeal.