MUHAMMAD FARRUKH MAHMUD, J.-Ishtiaq Hussain alias Shaki (since dead) and Muhammad Younus were tried by the leamed Sessions Judge, Sargodha, in lieu of case F.I.R. No,111 registered at Police Station Bhalwal on 24-4-1993 for offences under sections 302/392/34, P.P.C. Vide judgment dated 11-7-1998, the learned trial Judge convicted and sentenced each of them as follows ;--
(I) For offence under section 302 (b), P.P.C, to death plus payment of Rs,30,000 to the legal heirs, of the deceased, in default in payment whereof to, undergo S.I. For six months each; and
(II) For offence under section 392, P.P.C, to ten years' R.I. With a fine of Rs,20,000 to each or in default in payment thereof to suffer R.I. For two years each.
2. Ishtiaq Hussain alias Shaki and Muhammad Younus, convicts-appellants, have challenged their above-noted convictions and sentences through the instant appeal Murder Reference No,430 of 1998 seeking confirmation or otherwise of death sentence inflicted upon the appellants 'has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. It may be mentioned here that Ishtiaq Hussain alias Shaki, one of the convicts/appellants, as per letter dated 11-3-2005, placed on the record, has expired on 9-12-2(X)4 as natural death. So the appeal as well as murder reference to his extent stand abated.
4. Briefly, the prosecution case per F.I .R. Exh.PG recorded at the instance of Muhammad Sibghat Ullah/P.W.15 by Muhammad Azam, Moharrer/P. W. 1, are that Muhammad Abdul Wahab, elder brother of the complainant, used to drive his own car bearing Registration No,MNN- 864 Alto-Suzuki Model 1989 Engine No,423275 Chasiss No,615319 red colour as a taxi. On 22-4-1993 at 8-00 a.m., the complainant, his uncle Farooq Arshad and Muhammad Iqbal/P.W.16 were going towards the city when Abdul Wahab (deceased) while going towards Kot Moman in his taxi, met them. Ishtiaq Hussain alias Shaki-accused (since dead), Abu-ul-Hassan and another unknown person were boarding the car. The deceased told them that he was taking them to Kot Moman and would return by the evening. Abdul Wahab did not return, whereupon on Friday, the complainant went to Taxi Stand and inquired about his brother and came to know that the deceased had gone with Shaki Shah. The complainant suspected that Shaki Shah etc. Had abducted his brother for the purpose of snatching the car and that they might have murdered him.
5. On 24-4-1993, Muhammad Boota, A.S.-I./P.W.13, resumed the investigation. On the same date at 9-50 p.m. He along with Farooq Arshad and Muhammad Iqbal, P.Ws., inspected the place of occurrence; prepared its rough site-plan Exh.PG. On 24-4-1993 when the Investigating Officer (I.O.) was present in the Baithak of Mumtaz Khan Pathan in Chak No,7/SB in connection with the investigation of the case, Riaz-ul-Hassan/P.W. 17 met him there and told that he had a garden in Killa No,S of Square No,17 wherein wheat crop had been sown; during the round of said wheat crop, he saw blood lying on the earth near Kinnu tree and it looked that some one had dug ditch beneath the Kinnu tree and then had filled the same with earth, whereupon the I.O. Along with Riaz- ul-Hassan went to the said place and after digging out the same a dead body was brought out from it. The dead body was put on a cot and the I.O. Sent for Sibghat Ullah/complainant, who along with Muhammad Iqbal and Zafar Iqbal reached there and identified the dead body to be that of Abdul Wahab. The I.O. Prepared its injury statement Exh.PH and inquest report Exh.PI, sent the dead body to the mortuary for post-mortem report and prepared the rough site-plan Exh.PJ of the place from where the dead body was got recovered. He collected blood-stained earth from the said place and sealed the same into parcel vide memo. Exh. PK. The last-worn clothes of the deceased, i.e, shirt P-1 and Shalwar P-2, were taken into possession through memo. Exh.PB. Then the investigation was resumed by Muhammad Anwar Rana, S.-I./P.W.21. On 16-6-1993, the I.O.
Interrogated both the accused. Ishtiaq-accused led to the recovery of blood-stained Chhuri P-6 which was taken into possession vide memo. Exh.PN, attested by Muhammad Iqbal/P.W. I6 and Zafar Iqbal. On the same day, i.e, 16-6-1993, Ishtiaq led to the recovery of Kassi P-7, which was taken into possession through memo. Exh.PO, attested by the same witnesses. On the same date, Muhammad Younus/appellant led to the recovery of blood-stained knife P-8, which was taken into possession vide memo. Exh.PP, attested by the above said witnesses. After completion of investigation, the accused were sent up to face trial.
6. The prosecution produced as many as twenty two witnesses to support its case at the trial. Last scene evidence was furnished by Sibghat Ullah, complainant/ P.W.15, Muhammad Iqbal/P.W. I6 and Muhammad Rasheed/P.W.
10. P.Ws. 15 and I6 also identified the dead body of Abdul Wahab deceased. Sarwar Hayat Khan, Retired AC/MIC/P.W.20, stated about the arrangements and supervision of identification parade wherein the P.Ws, identified the appellant and Ishtiaq (since dead) as accused. Sarfraz Hussain/P.W.9 and one Muhammad Aslam (given up P.W.) has seen the accused in Car No,864/MNN near Gujrati Hamam at Quetta and on their inquiry the accused told them that they had purchased the said car from Abdul Wahab and that they were living with Tanveer Hussain resident of Chak No,7/SB, who was presently living in Police Lines, Quetta. Muhammad Tufail, A.S.-I./ P.W.19, stated that Muhammad Sabir Lasi/S.H.O., Police Station Civil Lines, Quetta, took into possession registration book (P-9) of Car No, 864/MNN, bearing name of owner as Ashiq Nawaz son of Malik Fazal Abbas resident of Shamsabad Colony, Multan, Driving Licence P-10 bearing name of Abdul Wahab (deceased), his Identity Card P-11, two receipts of token P-12/1-2, one card of Ch. Muhammad Riaz D.S.P. P-13 from the dash board of Car No,864/MNN in his presence through memo. Exh.PQ. The car of the deceased was taken into possession under section 550, Cr.P.C, vide Rapt No,49 dated 8-5-1993 (Exh.PR) by Iftikhar Ahmad, MHC, which has been verified by Muhammad Tufail/P.W.19 under whom said Iftikhar Ahmad had been working. Mulazim Hussain Shah, A.S.-I./P.W. 14, stated about the recovery of Suzuki Car No, 864/MNN along with the documents mentioned in Exh.PR from Police Station Civil Lines, Quetta, through memo. Exh.PL. Riaz- ul-Hassan/P.W.17 stated about the recovery of the dead body of Abdul Wahab from his garden. Dr. Riaz Ahmad/P.W.7, who conducted post-mortem examination on the dead body of the deceased on 25-4-1993 at 11-00 a.m., while observing ten incised wounds on the person of the deceased, opined that the death had occurred due to haemorrhage and shock under Injuries Nos.l to 10, which were sufficient to cause death in the ordinary course of nature. According to him, Injuries Nos. 1, 2, 3, 8 and 9 were individually fatal and that all the injuries were caused with sharp-edged weapon. He further opined that time between injuries and death was immediate, while it was 70 to 72 hours between death and post-mortem examination. Muhammad Khalid/P.W.Ll stated about the confession of the crime before him by Ishtiaq accused, while Abdul Qayyum/P.W.12 stated about the confession made by Muhammad Younas before him. In addition to that, they also stated about the recovery of wrist watch of the deceased P-3 and his golden ring P-4 from Ishtiaq and that of golden locket P-5 from Muhammad Younas, which were taken into possession by the I.O.
Through memo. Exh.PF and PE respectively, attested by them. Muhammad Boota, A.S.-I./ P.W.13 and Muhammad Rana, S.-I./P.W.21 stated about the investigation of the case. The rest of the evidence, being formal in nature need not be discussed.
7. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication in the case. However, neither he appeared as his own witness as contemplated by section 340(2), Cr.P.C, nor did he produce any witness in defence.
8. Learned counsel for the appellant contends that the matter was reported to the police after an inordinate delay; that the extra-judicial confession is very weak type of evidence and in this case, the conduct of the P.Ws, relating to extra-judicial confession is not above board; that neither the dead body nor the stolen car was recovered at the pointation of the appellant; that the recovery of watch, wring and locket of the deceased is a planted one, as it was not mentioned in the F.I.R, that the deceased was wearing the above noted articles; that the recovery of blood-stained weapons has not been judicially proved; and that the case of the prosecution is replete with doubts.
9. Conversely, the learned counsel for the complainant has submitted that the complainant had no previous enmity against the appellant to depose falsely against him; that the delay in this case does not matter; that Ishtiaq (since dead) had been named in the F.I.R.; that Younas was correctly identified by Sibghat Ullah and Muhammad Iqbal, P.Ws., during identification parade; that P.W.10 Muhammad Rasheed, who had no enmity with the accused, has deposed about the evidence of last scene and that Muhammad Rasheed duly identified both the accused in the identification test; that his testimony was not seriously challenged in cross-examination; that both the accused were seen along with the stolen car in Quetta by P.W.9 Sarfraz; that P.W.9 was also an independent witness; that after arrest Ishtiaq accused led to the recovery of blood-stained Chhurri and one Kassi from his house, while Younas led to the recovery of blood-stained knife from his house; that P.W.12 Nazar Hussain/S.-I. Has stated that Tanvir Hussain, who was related to the accused, told him that two guests were staying with him in the police line, who had come there to sell the car and subsequently, the car belonging to Abdul Wahab was taken into custody under section 550, Cr.P.C, from the police line; that the dead body was recovered from the village where both the accused were living; that the prosecution has proved its case beyond doubt against the appellant through circumstantial evidence, which is trust worthy and independent. The Iearned counsel appearing on behalf of the State has adopted the line of arguments of the learned counsel for the complainant.
10. We have heard the learned counsel for the parties and have also gone through the record of the case.
11. It is an unwitnessed occurrence and the prosecution case rests on circumstantial evidence. The requirement of law is that different pieces of circumstantial evidence should interlink like a chain whose one end should point to the deceased and the other to the neck of the accused. According to Sibghat Ullah brother of the deceased and Muhammad Iqbal, P.W.15 and I6, they came across Abdul Wahab (deceased) on 22-4-1993 at 8-00 a.m. Abdul Wahab, who was a taxi driver, informed the P.Ws, that he was taking the passengers Ishtiaq Hussain alias Shaki appellant, Abu-ul-Hassan, who was not tried, and another person who was not known to the P.Ws, to Kot Moman. He further stated that he would return by the evening. As Abdul Wahab did not return to his house, the complainant went to the Taxi Stand on the next day and inquired about Abdul Wahab. He was informed that Abdul Wahab had left with the passengers mentioned above. Thereafter, on the next dated at 9-25 p.m. On 24-4-1993, the matter was reported to the police. The dead body was recovered on 25-4-1993 from the garden of Riaz-ul- Hassan/P.W. 17 situated in Chak No,T/SB. Both the accused were arrested on 18-5-1993 and sent to judicial lock-up and on 22-5-1993, an application Exh.PS was moved for deputing a Magistrate to conduct proceedings of identification parade. On 26-5-1993 Sarwar Hayat Khan/P.W.20 conducted the identification parade in judicial lock, Sargodha. During this identification parade, Muhammad Rasheed/P.W.10, Sibghat Ullah/P.W.15 and Muhammad Iqbal/P.W.16 identified both the accused. During the proceedings Ameer Sultan and Muhammad Farooq Arshad, P.Ws: also identified the accused. However, they were not produced during trial. The proceedings of identification parade recorded by the Magistrate Exh.PS/2 reveal that the identification test suffers from serious flaws and was not worthy of reliance.
Firstly, as against various pronouncements of the superior Courts, both the accused were not got identified separately; secondly, as against the established practice, the ratio of the strangers and the accused should be 1-9 or 1-10, while in this case fourteen passengers/dummies were mixed up with the accused; thirdly, no description of either of the accused is given in the report of the proceedings nor it has been mentioned therein that the dummies had resemblance with the two accused; fourthly, the statements of the accused or their objections were not recorded. Most importantly, the name, parentage and address of Ishtiaq accused was given in the F.I.R, itself, so there was no occasion to get him identified by P.Ws. 15 and I6. As far as Younas is concerned, no description about his physique, his height, his complexion or age or features was given in the F.I.R.
The names of the accused were already known to the P.Ws, much earlier than the identification test.
12. According to prosecution case, on 15-5-1993, Ishtiaq accused approached P.W.11 Muhammad Khalid and made confession before him, while according to P.W.12, Younas-accused approached him on 16-5-1993 and made confession before him. Surprisingly both Khalid and Abdul Qayyum advised the accused to reach the Dera of Malik Ahmad Khan on 18-5-1993. At the time of confession of Ishtiaq, Khalid P.W. Was sitting alone. Similarly, at the time of confession of Younas Khalid was not present and only Abdul Qayyum was there. In these circumstances, how could both the P.Ws, advise the accused to reach the Dera of Ahmad Khan on 18-5-1993, which was at a distance of 20 miles from Chak N0.7/SB where the accused lived. According to prosecution, both the accused as per advice reached the Dera of Malik Ahmad Khan. The accused would not do so until and unless they were under some hypnotic influence. Ahmad Khan was never produced. The statements of both the witnesses also suffer from material contradictions, as, according to Khalid, no confession was made before Ahmad Khan, while according to Qayyum, both the accused jointly confessed before Ahmad Khan. The conduct of both the P.Ws, is also strange and implausible, as none of them informed the police or tried to produce confessing accused on the same date. Most importantly, there is nothing on record as to what compelled the accused to make confession before these two P.Ws. It may be mentioned here that according to P.W.11, Ishtiaq narrated the story in question-answer form, while according to this witness, he did not know about the murder of Abdul Wahab prior to the making of confession. Then how could he put any question to the accused.
13. At the time of arrest, Ishtiaq took out Seiko watch P-3 and golden ring belonging to the deceased from his pocket and these were taken into possession vide memo. Exh.PE, while Muhammad Younas took out locket P-5 from his pocket and the same was taken into possession vide memo. Exh.PF. This is a clear-cut case of fabrication of evidence, as it was not mentioned in F.I.R, or till the arrest of the accused that Abdul Wahab was wearing the afore-noted articles.
14. Muhammad Rasheed P.W.10 stated that after knowing about the occurrence, he went to the house of complainant on 26-4-1993 and informed him that on 22-4-1993 he and Amir Sultan had seen Abdul Wahab deceased in the company of the accused. He did not know the accused previously and as already noted above, the test identification is replete with flaws; hence; the statement of this witness who is related to other witnesses Sarfraz and Muhammad Aslam is of no consequence.
15. According to prosecution case, both, Sarfraz/P.W.9 and Muhammad Aslam, who was not produced during trial, relate to P.W.10. They saw both the accused in the Suzuki Car belonging to the deceased in Quetta and were informed by the accused that they had purchased the car from Abdul Wahab and had taken it to Quetta and were staying in Police Line, being guests of Tanvir Hussain Shah- Constable. But the aforesaid Tanvir Hussain Shah never appeared before the learned trial Court and instead Nazar Muhammad/S.-I. Appeared before the learned trial Court as P.W.18 and stated that he was informed by Tanvir Hussain that two guests were staying with him who had come, from Punjab to sell a car which had met with an accident. The statement of P.W.18 is inadmissible, being hearsay, while no reliance can be placed on the statement of Sarfraz who was a chance witness and was related to the other witnesses. Further more, the other witness of set was withheld. This P.W. Admitted that he did not know the parentage of the accused and did not own any house in Quetta. He further stated that his statement was recorded by the police in the presence of one of the accused and that both the accused used to work at Service Station at Bhalwal where the deceased used to get fuel/petrol. However, according to Nazar Muhammad, S.- I./P.W.18, the stolen car was recovered from the police line and was taken into possession. The car contained the registration book, identity card and driving licence of Abdul Wahab deceased. The fact remains that nothing was recovered from the car to connect the accused with it. It is also noteworthy that neither the dead body nor the stolen car was recovered at the instance or pointing of any of the accused.
16. Now we are left with the recovery of blood-stained weapons from both the accused.
Muhammad Iqbal/P.W.16 stated that in his presence and the presence of Zafar Iqbal, who was not produced during trial, on 16-6-1993, while in custody, Ishtiaq-accused led to the recovery of blood- stained Chhuri P-6 from an iron box lying in his house, which was taken into possession vide memo.
Exh.PN. Ishtiaq also led to the recovery of Kassi P-7 which was lying in the veranda of the house and the same was also taken into possession through memo. Exh.PO. According to this witness, on the same date, Younas, while in custody, led to the recovery of bloodstained knife P-8 from a box lying in the room of his house. The recovery evidence is not worthy of credence for the reason that it is in evidence that the accused washed their blood-stained clothes and left their house after changing the dress. The same accused would not keep the bloodstained weapons intact in boxes to produce the same as souvenirs to the I.O. At a latter stage, especially when they had ample time to destroy this incriminating piece of evidence. It is trite law that one weak piece of evidence cannot corroborate or strengthen the other weak piece of evidence. Suspicion however strong it may be would remain a suspicion and cannot be treated as proof.
17. In view of the above noted circumstances, we are of the opinion that the prosecution case is not free from doubts. This appeal is allowed and the judgment passed by the learned trial Court is set aside. Muhammad Younas appellant is acquitted of all the charges and would be released forthwith, if not required in any other case.
18. The death sentence is not confirmed. The Murder Reference is answered in the negative.