' ANWAR ZAHEER JAMALI, This Criminal Appeal, with the leave of the Court, is directed against the judgment of a learned Division Bench of High Court of Balochistan, Sibi Bench, dated 12-4-2006, passed in Criminal Appeal No,(S)32 of 2005 whereby the said appeal was dismissed, while the murder reference No,23 of 2005, made by the trial Court for confirmation of death sentence awarded to both the appellants in Sessions Case No,8 of 2002, vide its judgment dated 8-10-2005, was confirmed.
2. As per prosecution case, on 28-2-2000, at 1100 hours, complainant Muhammad Azam son of Saleh Muhammad caste Mengal, lodged F.I.R. No,5 of 2000, Police Station Levies Thana Sanni, District Bolan, stating therein that about three months back, his father, who was dealing in cattle business, had gone missing. He used to frequently visit Khan Muhammad son of Noor Muhammad for the purpose of his business, and lastly he had also taken with him Rs,2,00,000 in cash for this purpose. The complainant made hectic efforts to know about the whereabouts of his father, and for this purpose, he also contacted Khan Muhammad (Appellant No,1), at Sibbi Maila, due to his non-availability at home, who falsely told him that his father Saleh Muhammad has gone to the house of his brother-in-law at Shikarpur Si ndh, while another person Taj Muhammad told him that father of complainant had visited him three months earlier and had left with him sixteen cows/buffalos as "Amanat", but thereafter he did not turn up. Through another source, he further came to know that in the account of his father said Khan Muhammad has taken an amount of Rs,30,000 in two instalments from Lachhmandas son of Khatshamdas by posing himself to be Muhammad Qasim, younger son of said Saleh Muhammad, and for all these reasons he has strong apprehension that the amount carried by his father was snatched and he was done to death by these persons i,e, family of Khan Muhammad.
3. During the investigation of crime, on 5-3-2000, appellant No,1 Khan Muhammad led to the recovery of dead body of Saleh Muhammad deceased from an abandoned house at Lehriabad Dhadu, in presence of witnesses Abdul Waheed (P.W.4), Ghulam Qadir (P.W.10) and Hussain Bux (given up P.W.) vide statement dated 14-12-2000. However, no postmortem of recovered dead body was conducted. In addition to it, section 164, Cr.P.C. Statement of appellant No,2 Ghulam Muhammad was also got recorded before the Judicial Magistrate Jamal Din Achakzai P.W.6 on 13- 3-2000, wherein he admitted that his brother Khan Muhammad has recovered Rs,13,000 from the pocket of Saleh Muhammad deceased as well as Rs,30,000 from Lachhmandas and they have also killed him.
4. After the investigation of crime, both the appellants along with four other absconding accused, Misri Khan alias Miskan, Jumma Khan son of unknown, Mst. Janat Bano wife of Muhammad Noor and Mst. Noor Bibi wife of Misri Khan, all close relatives of appellants, were challaned before the trial Court on 20-3-2000. Thereafter on 5-8-2000, appellants were charged by the trial Court for the commission of offence, punishable under sections 302, 201, 147, 148 and 149, P.P.C., to which they pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution examined twelve witnesses and produced all the relevant record/documents about the investigation of the crime through these witnesses.
6. After conclusion of prosecution evidence, section 342, Cr.P.C. Statements of both appellants were recorded on 2-8-2001, and vide judgment dated 27-3-2002, they were convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life, with benefit of section 382-B, Cr.P.C. However, the appeal preferred by the appellants against such judgment of conviction passed by the trial Court, met with success before the High Court, with the result that said judgment was set aside and the Sessions Case was remanded to the trial Court, vide order dated 17-9-2004, with directions to re-examination appellant:, under. Section 342, Cr.P.C. In the light of incriminating pieces of evidence produced against them during prosecution evidence. Further it was observed that the accused will be entitled to give statements on oath, and also to produce evidence in defence, if they so desire. Consequently, the show-cause notice for enhancement of sentence earlier given by the High Court was also withdrawn.
7. After remand of the case, section 342, Cr.P.C. Statements of both the accused were again recorded on 3-2-2005, whereafter on 16-2-2005, appellant No,1 Khan Muhammad also got recorded his statement under section 340(2), Cr.P.C. However, the other appellant did not opt to examine himself under section 340(2), Cr.P.C. On oath nor they produced any evidence in their defence. Similarly, the prosecution also did not produce any further evidence in support of their case against the appellant. After compliance of the directions contained in the order of remand dated 17-9-2004, arguments of the parties' counsel were heard by the trial Court and, vide its judgment dated 8-10-2005, both the appellants were again convicted for commission of offence punishable under section 302, P P.C., and this time awarded death penalty with fine of Rs,100,000 each, which, on recovery, was to be paid to the legal heirs of the deceased Saleh Muhammad, as compensation.
8. Against such judgment, both the appellants again preferred criminal jail appeal No,S(32) of 2005, which was heard along with murder reference No,(S)23 of 2005 made by the trial Court for seeking confirmation of death sentence awarded to them. By common judgment dated 12-4-2006, as mentioned above, this appeal was dismissed and consequently conviction and sentence of both the appellants were maintained.
9. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court, representing the appellants vehemently contended that the impugned judgments passed by the Balochistan High Court as well as the trial Court against the appellants suffer from patent misreading of evidence, therefore, they are liable to be set aside. Dilating upon the facts of the case and the evidence adduced by prosecution, he contended that after the investigation of crime, six persons, including two appellants, (who are real brothers) were nominated in the crime, who all are members of same family and close relatives. Except the appellants, other nominated accused were declared proclaimed offenders before the trial Court and till date none of them has been apprehended.
Admittedly, as per case of prosecution, Saleh Muhammad deceased, father of the complainant, has gone missing three :months prior to the lodging of the FIR: and careful reading of the contents of F.I.R. Clearly goes to show that it was only on the basis of suspicion shown by the complainant, because of business dealing of the deceased with P.W.3 Taj Muhammad and appellant No,1, that he was trapped in the crime along with his other family members. Looking at the section 164 statement of appellant No,2, strongly relied by the trial Court, one can see that it was not a voluntary statement on his part, as evident from the reply of question No,4. Further it was exculpatory .In nature, and mostly hearsay, therefore, of no help to the case of prosecution. He also argued that although the dead body allegedly of Saleh Muhammad (deceased) was recovered on the pointation of appellant No,1 Khan Muhammad, but it was not identified by any responsible person nor sent for postmortem report to ascertain the cause of his death. On the contrary, Doctor Lal Muhammad P.W.11, who accompanied the police party at the time of recovery of dead body, clearly stated in his report (Exh.P/11-A) that there were no apparent external marks of injuries on the dead body recovered on the pointation of appellant No,1 Khan Muhammad, which was not in identifiable condition and the cause of death also could not be ascertained. His further submission was that in such circumstances, when neither the dead body was properly got identified as of deceased Saleh Muhammad, father of the complainant, nor it was ascertained through postmortem report that whether he died some unnatural death, no case for commission of offence under section 302, P.P.C. Was made out against any of the appellants. He also argued that neither even recovery of any crime weapon was attributed to any of the appellants nor any report of Forensic Science Expert or Chemical Examiner was obtained by the prosecution, which may justify a conclusion that the deceased was done to death by the two appellants. Referring to the evidence of Taj Muhammad (P.W.2), who was examined by the prosecution to support its case as last seen evidence of the deceased Saleh Muhammad with appellant No,1, Mr. Bhatti also argued that such statement of the P.W.2 was hearsay and recorded much after the lodging of F.I.R. And recovery of dead body on the pointation of appellant No,1, therefore, it can be safely concluded that he was a set up and tutored witness to support the case of prosecution.
10. Raja Abdul Ghafoor, learned Advocate Supreme Court for the State, through supported the two impugned judgments of conviction against tue appellants. However, he was unable to show from the record that there was no reasonable doubt in the case of prosecution, to the extent that the dead body recovered on the pointation of appellant No,1 Khan Muhammad was dead body of deceased Saleh Muhammad; lie had died unnatural death or the appellants were guilty of causing his qatl-eamd.
11. We have carefully considered the submissions of the learned counsel, perused the whole case record of Sessions Case No,22 of 2000 (8 of 2002), arising out of Crime No,5 of 2000, Police Station Levies Thana Sanni, and also gone through the impugned judgments of the two Courts below, wherein the evidence of all the prosecution witnesses has been discussed in a cursory manner and conclusion has been drawn that both the appellants were guilty for the commission of offence of causing qatl-e-amd of deceased Saleh Muhammad, punishable under section 302(b), P.P.C.
12. Some of the salient features of this case, which create reasonable doubts in the case of prosecution and need careful consideration, are as follows:--
(a) The of the incident was lodged by complainant Muhammad Azam on 28-2-2000, after about three months, when his father Saleh Muhammad had gone missing and was untraceable. However, in his deposition, he has stated that the accused were not known to him before occurrence, and F.I.R. Was lodged by him after the arrest of appellant No,1.
(b) As per contents of the F.I.R.; deceased was engaged in cattle business and was carrying Rs,200,000 cash with him at the time when he had lastly left his house. But no explanation has come on record about the purchase of fourteen cows by him during the intervening period, which according to the deposition of Taj Muhammad (P.W.2) were handed over to him by the deceased as "Amanat".
(c) Since then, till the lodging of F.I.R., efforts were made by the complainant to know about his whereabouts, but he remained unsuccessful, as from different sources he received different replies and information in this regard. However, he did not make any written complaint before any authority in this regard.
(d) Based on these circumstances suspicion was shown by the complainant on the appellants and four other family members including two ladies, who after investigation of the crime, were challaned before the trial Court.
(e) As per document Exh.P.I./1 and deposition of P.W.3 Zahoor Hussain Shah, on 5-3-2000, on the pointation of appellant No,1 Khan Muhammad, about two months old dead body of one male person was recovered from an abandoned house consisting of three rooms, without doors, of which photographs were taken, and dead body was sent to the hospital. But no one from the family of the deceased or his friends was examined to depose that how and when he had seen and identified the discovered dead body as of Saleh Muhammad deceased. Moreso, when P.W.4 Abdul Waheed has clearly deposed that dead body was not in identifiable condition.
(f) Doctor Lal Muhammad (P.W.11) who first examined the dead body neither found any mark of injury on the dead body nor he could ascertain the cause of death that whether it was a case of unnatural death or otherwise.
(g) Identification of the dead body was purportedly shown by two pnotographs Exh.P.10/B and Exh.P.10/C through Ghulam Qadir Naib Tehsildar, who did not depose that deceased was already known to him, therefore, he had rightly identified him, despite poor condition of two months old recovered dead body.
(h) On the application of complainant dated 16-3-2000, the said dead body was handed over to him without postmortem, therefore, cause of death could not be ascertained.
(i) Section 164, Cr.P.C. Statement of appellant No,2 Ghulam Muhammad, recorded on 13-3-2000, does not seem to be voluntary in nature, as evident from his reply to question No,4. Moreover, this statement, to a greater extent, was exculpatory and hearsay, thus, having little evidentiary value to support the case of prosecution. As such recording of evidence of Judicial Magistrate Jamaluddin Achakzai P.W.6 was also of no consequence or help to the case of prosecution.
(j) Evidence of P.W.8 Amardas, regarding fraudulent collection of Rs,30,000 from him by appellant Khan Muhammad, personating himself as Muhammad Qasim son of deceased Saleh Muhammad has no nexus to the commission of crime, for which the two appellants were charged and sentenced. Even no charge was framed against them for any such offence.
13. After careful consideration of the whole evidence adduced by the prosecution, keeping section 342, Cr.P.C. Statements of both the appellants and section 340(2), Cr.P.C. Statement of appellant No,1 in juxtaposition, we find that the prosecution has failed to prove beyond reason' 'e doubt that dead body recovered on the pointation of appellant No,1 was dead body of Saleh Muhammad deceased, who had died unnatural death due to some cause; or that the two appellants were responsible for his murder. In such circumstances, duly supported with the above noted salient features of the case, it is difficult for us to sustain the findings of two Courts below holding the appellants guilty for commission of qatl-e-amd of Saleh Muhammad deceased. At best, from the evidence of P.Ws.3, 4 and 10, and relevant record about the recovery of exhumed dead body it could be said that the appellant No,1 knew but concealed the fact about the secret burial of some dead body inside a three rooms abandoned house, from where it was recovered on 5-3-2000, on his pointation. Thus, in our opinion, the prosecution has only succeeded to prove the guilt of appellant No,1 for commission of offence under section 201, P.P.C., while conviction and sentence awarded to the appellants by the two Courts below for commission of offence under section 302, P.P.C. Is not proved beyond reasonable doubt, due to lacunas and deficiencies cited above.
14. It is for the foregoing reasons that this appeal was allowed in terms of the short order dated 17- 2-2010, which reads as under:-- "For the reasons to be recorded later on, we while allowing the appeal, set aside the conviction and sentence under section 302(b), P.P.C. Of both the appellants, passed by the Courts below and they are acquitted of the above offences/charges. However, Khan Muhammad (appellant No,1), is found guilty of offence punishable under section 201, P.P.C. For concealing the evidence and he is accordingly, convicted and sentenced to seven years R.I. With a fine of Rs,10,000 (ten thousand) or in default thereof, six months S.I. He is extended benefit of section 382-B, Cr.P.C. Ghulam Muhammad (appellant No,2), be released forthwith, if not required in any other case."