' SYED YAHYA ZAHID GILANI, J.--- Since all these are arising from a single judgment of Mr. Sajjad Anwar, learned Additional Sessions Judge-V, D.I. Khan dated 14-6-2006, the instant Criminal Appeal No,79 of 2006, the Criminal Jail Appeal No,75 of 2006, Criminal Appeal No,87 of 2006 and Criminal Revision No,23 of 2006 are proposed to be disposed of through this single judgment.
2. Succinctly, it is the case of prosecution that Lal Khan (deceased) left home on 15-4-2005 for the house of his father-in-law but did not return. His brother Ghulam Qasim (complainant) reported the incident to police on 17-4-2005, alleging that he has been killed by his brother-in-law, "Ashiq"
(convict-appellant), per information received from his mother-in-law, "Mst. Tajo Bibi" (convict- appellant) because of animosity over marriage of the young daughter of Lal Khan, and then the dead body has been concealed somewhere. Consequently, the case was registered vide F.I.R.
Exh.P.A. Bearing No,156 dated 17-4-2005 of Police. Station Saddar, D.I. Khan, under sections, 302/201, P.P.C. Read with section 13, Arms Ordinance.
3. It should be clarified at the outset that Lal Khan deceased and Ghulam Qasim complainant are brothers inter se and their wives are sisters inter se being daughters of Mst. Tajo Bibi named above.
As such, the relations of the complainant and deceased with Mst. Tajo Bibi and her son, Ashiq, convict-appellants are identical.
4. When police arrested Mst. Tajo Bibi, she pointed out the place where the dead body of Lal Khan was buried. On recovery of the dead body, the autopsy revealed that the throat of Lal Khan was cut with sharp-edged weapon and there was a stab wound at right flank. At the time when the buried dead body was recovered from the ditch, watch of the deceased from his wrist; valet containing Rs,545 and his NIC No,149-55-350750 from his front pocket and small diary, two handkerchief and one optical from his side pocket were also recovered, besides the cover of a dagger lying at some distance from the ditch. All these articles were taken into possession along with the blood-stained earth.
5. Thereafter, convict-appellant Ashiq was arrested who pointed out a room in his house where the deceased was allegedly killed with the assistance of two persons namely Muhammad Nazir and Muhammad Zakria (both acquitted accused). On his pointation, blood-stained dagger (crime weapon) wrapped in a towel and buried at the bank of a water course were recovered. He also led to the recovery of spade and pick axe (Vahola) which were alleged used in digging to bury and conceal the dead body. The blood-stained shirt of the deceased having cut mark was also taken into possession. Subsequently the acquitted accused, Muhammad Nazir and Muhammad Zakria, were- also arrested and they also pointed out the places of killing and burying the deceased. The blood-stained earth, shirt of the deceased and the blood-stained dagger were sent to F.S.L. And a positive report was received that blood on all the three articles was of human origin and of the same group.
6. The four accused namely Ashiq, his mother Mst. Tajo Bibi and his friends Muhammad Nazir and Muhammad Zakria were tried for Qatle-Amd of Lal Khan deceased and disappearance of dead body and . Evidence. Vide the afore-mentioned judgment, the accused Muhammad Nazir and Muhammad Zakria were acquitted. The widow of deceased Mst. Latifan Bibi has filed Criminal Appeal No,87 of 2006 against their acquittal. Mst. Tajo Bibi has been acquitted under section 302, P.P.C. But convicted under section 201, P.P.C. And sentenced to the period already undergone. Ashiq accused has been convicted under section 302(b), P.P.C. And sentenced imprisonment for life with a fine of Rs,50,000 recoverable as arrears of land revenue under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. Both of them have jointly filed Criminal Appeal No,79 of 2006 to challenge their conviction. Mst. Latifan Bibi has filed Criminal Revision No,23 of 2006 for the enhancement of quantum of their sentence. Ashiq convict-appellant has also instituted a separate appeal against his conviction from jail, bearing No,75 of 2006. This Criminal Appeal No,75 of 2006 moved from Jail has become redundant due to proper appeal filed by Ashiq convict through his counsel bearing Criminal Appeal No,79 of 2006. Criminal Jail Appeal No,75 of 2006 was thus not pressed and it stands dismissed being redundant.
7. We have heard arguments of Muhammad Waheed Anjum Advocate for the convicts-appellants and respondent-acquitted accused. Mr. Salimullah Khan Ranazai Advocate was heard for State as well as the complainant party because the widow Mst. Latifan Bibi, present in Court, stated that she would rely on the arguments of State Counsel. Record has been gone through.
8. Learned counsel for the convicts-appellants and the acquitted accused argued that in fact this is a case of no evidence. He emphasized that the complainant Ghulam Qasim P.W.7 as well as Mst.
Latifan Bibi P.W.8 wife of the deceased, are not eye-witnesses. Their statements are based on hearsay. None of the acquitted or convicted accused has confessed his guilt through judicial or extra-judicial confession. The pointation of different places allegedly related to the Qatl-e-Amd of deceased Lal Khan are firstly not proved with satisfactory evidence and if proved, since those places were already in the knowledge of police and nothing was newly discovered, are not admissible in evidence. The alleged recoveries at the pointation of convicts-appellants are highly doubtful and the relevant recovery memos are clear manipulations which could not be proved with cogent evidence. The cases based on circumstantial evidence are required to be proved with unbroken chain of established evidence but in the instant case there is no even a single ring of the chain, what to say of complete chain of proof for conviction. Therefore, the acquitted accused were rightly acquitted but the convicted appellants have been wrongly convicted due to misappreciation of evidence and reliance on doubtful as well as inadmissible evidence. Hence, they also deserve benefit of doubt and acquittal.
9. Learned State Counsel invited our attention towards the statement of Mst. Latifan Bibi P.W.8 who is the widow of deceased. She furnished evidence that on 15-4-2005 her husband Lal Khan left home, for the house of her mother. She also furnished direct evidence about dispute in between her brother Ashiq convict-appellant and her husband Lal Khan deceased over the marriage of her daughter. Then he invited our attention towards the statement of Ghulam Qasim P.W.7/complainant that he was informed by Mst. Tajo Bibi convict-appellant that deceased was murdered after quarrel with her son Ashiq. He further argued that this evidence coupled with the pointation of place of murder, recovery of dead body, recovery of blood-stained dagger, recovery of instruments of burying dead body sufficiently prove that. Lal Khan was done away by the convict-appellant Ashiq and the two acquitted accused because the occurrence and concealment of evidence as well as dead body could not be the doing of one person. He, therefore, prayed that the sentence of Ashiq and Mst. Tajo Bibi may be enhanced as it is a case of cold blooded brutal murder and the acquittal of respondents-accused Muhammad Nazir and Muhammad Zakria may be converted into conviction.
10. We have thoroughly scanned the record and found that it is true that Mst.. Latifan Bibi is not eye- witness .Of the occurrence but it is equally true that she has furnished direct evidence on two points. Firstly, that her husband Lal Khan had departed on 15-4-2005 for going to the house of his in-laws; and secondly, that there was animosity in between her brother. Ashiq and her husband Lal Khan over the marriage of her young daughter. We have also noted that on both these crucial points Mst. Latifan Bibi was not cross-examined and thus, these parts of her unchallenged statement shall be considered to be proved as held by Honourable apex Court in the case of Sheraz Tufail v. The State 2007 SCM R 518(b). We can, also not ignore the glaring fact that Mst.
Latifan Bibi is deposing her own mother acid brother and we do not expect her to falsely depose against her near and dears.
11. Next comes the evidence of recovery of dead body at the pointation of Mst. Tajo Bibi vide memo.
Exh.P.W.4/1 which was proved with the statement of Muhammad Nawaz IHC P.W.4. It was objected that P.W.4 is a police official and a non-official witness should have been produced. We have seen the relevant recovery memo. Exh.P.W.4/1 which has also been signed by two local inhabitants as marginal witnesses, besides the P.W.4, who was preferred over others and there is no good ground to discard his statement. The dead body was recovered after two days of the occurrence and Mst.
Tajo Bibi knowingly concealed this fact which was in her knowledge. Therefore, we hold that she was rightly convicted under section 201, P.P.C. And her sentence of imprisonment already undergone is also considered to be appropriate in the facts and circumstances of the case. Her alleged active involvement in Qatl-e-Amd is not backed by any other admissible evidence.
Therefore, we also conclude that her acquittal under section 302, P.P.C. Is according to law.
12. As far as, the case of convict-appellant Ashiq is concerned, the pointation of a room in his house where he allegedly killed the deceased is irrelevant because from this place nothing incriminating like human blood etc. Was recovered. Similarly, the spade and pick axe, allegedly recovered on the pointation of Ashiq convict-appellant are also not incriminating articles because they were not stained with human blood and these articles being normally available in every village house, their nexus with the crime is not proved beyond doubt. As such, we do not find any substantive evidence on record to prove that Ashiq convict-appellant was the person who committed Qatl-e-Amd of deceased Lal Khan and to this extent he deserves benefit of doubt.
13. However, there are a few strong pieces of proved evidence which make a chain for his conviction under section 201, P.P.C. Firstly, there is statement of the real sister of Ashiq convict- appellant that deceased Lal Khan had left house for going to the house of her parents. This is unrebutted and proved evidence as discussed above. Secondly, in answer to question No,10 of his statement recorded under section 342, Cr.P.C., the convict-appellant Ashiq has admitted his knowledge that Lal Khan was killed by his enemies belonging to Zhob. Thirdly, is the recovery of blood-stained dagger at his pointation which was concealed by burying at the bank of a water channel and this place was not known to anyone else prior to his leading up to its recovery vide memo. Exh.P.W.4/4 and this memo. Has been proved with the statement of Muhammad Nawaz IHC P.W.4. Fourthly, and lastly, the blood on the dagger matched with the blood of deceased Lal Khan contained in the earth recovered from the ditch where he was buried as well as his blood on the shirt which he was wearing at the time of occurrence. This is an unbroken chain of circumstantial evidence which proves that Ashiq convict-appellant at least knew that deceased Lal Khan was killed by his enemies and then he concealed the dagger used in the crime to disappear evidence pertaining to his Qatl-e-Amd. As such he is proved guilty under section 201, P.P.C.
14. As far as the case of acquitted accused Muhammad Nazir and Muhammad Zakira is concerned, nothing incriminating was recovered and nothing new was discovered from their alleged pcintation of different places. Therefore, the recovery memos pertaining thereto prove nothing, and hence, they were rightly acquitted from the charges on the basis of benefit of doubt.
15. Consequently, while dismissing Criminal Jail Appeal 75 of 2006, Criminal Appeal No,87 of 2006 and Criminal Revision No,23 of 2006, we maintain the conviction of Mst. Tajo Bibi convict-appellant and partially accepting the Criminal Appeal No,79 of 2006 acquit Ashiq convict-appellant under section 302(b), P.P.C., but convict him under section 201, P.P.C. And sentence him to seven years' R.I.
He is further directed to pay Rs,1,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C.. In default of payment of compensation, he shall suffer six months' S.I and the amount shall be recovered according to law for payment to the legal heirs of Lal Khan deceased, according to their Shari share.