Mst. ASKAR JAN and others vs MUHAMMAD DAUD and others

' ANWAR ZAHEER JAMALI, J.---Criminal Appeal No,251 of 2005, filed by Mst. Askar Jan, mother of deceased Muhammad Khurshid for challenging the acquittal of respondent No,2, Gohar Sultan, respondent No,3 Shajar-ul-Haq alias Feroz, non-awarding of compensation under section 544-A, Cr.P.C., and dismissal of her Criminal Revision No,11 of 1999, and Criminal Appeal No,252 of 2005 preferred by appellant Muhammad Daud against his conviction and sentence awarded by the trial Court, as maintained by the High Court, arise out of common judgment of the learned Division Bench of Lahore High Court, Rawalpindi Bench dated 16-12-2002, passed in Criminal Appeal No,19 of 1999, Criminal Appeal No,20 of 1999, Criminal Revision No,11 of 1999 and Murder Reference No,180 of 1999, hence we purpose to dispose of both these appeals by this single judgment.

2. In these cases, leave to appeal was granted by this Court vide its common order dated 28-7- 2005, which reads as under:- ' "Leave to appeal is granted in listed-petitions to examine as to whether:--

1. The respondent Gohar Sultan has rightly been acquitted of the charge and evidence available against him has been disbelieved for the reasons recognized under the law.

2. The facts and circumstances of the case and the evidence produced by the prosecution is sufficient to justify the conviction of petitioner Muhammad Daud in the light of the principles laid down by this Court for appreciation of evidence in criminal administration of justice.

3. The amount of compensation imposed upon Muhammad Daud is contrary to the settled law qua accusation against him of causing the murder of deceased-Khurshid.

2. Bailable, warrants in the sum of Rs,1,00,000 (Rupees one lac only) returnable to the Registrar be issued against Gohar Sultan. A separate notice be also given to show cause as to why on setting aside the impugned judgment, sentence awarded to him may not be enhanced.

' As no incriminating evidence is available on record against Shajarul Haq alias Feroz, therefore, to his extent petition is dismissed."

3. Briefly stated, the facts relevant for the disposal of these appeals are that on 18-10-1994 at 16-30 hours, on the basis of earlier report No,10, made by complainant Abdul Rashid son of Naqeel Khan, F.I.R. No,497 of 1994 was registered at Police Station Wah Cantt. District Rawalpindi, regarding an incident which had taken place on 17-10-1994. According to the narration of facts in the said F.I.R., complainant Abdul Rashid was working at Riyadh, Saudi Arabia for a period of five years. He knew one Gohar Sultan son of Noor Bukhsh, resident of Mohallah Mehrabad, Hassan Abdal, who also used to work there. They both were doing the business of visas for taking Pakistani citizens to Saudi Arabia. In this connection, Gohar Sultan had taken a loan of Saudi Riyals 1,42,000 from the complainant about five months before he was going back to Pakistan with some visas to bring more Pakistanis to Saudi Arabia. About one and a half months ago, the complainant also reached home from Saudi Arabia and paid a sum of Rs,600,000 to Gohar Sultan in advance for sending some people to Saudi Arabia. On 17-10-1994, at about 7-00 a.m., Gohar Sultan visited the house of complainant and informed him that concerned man along with visas, passports and tickets has reached at POF Hotel, Wah Cantt, therefore, the complainant should also reach there along with balance payment of Rs,312,000. In response, the complainant along with his younger brother Muhammad Khurshid and son Khurram Shehzad, aged about five years, reached at the said POF Hotel Wah Cantt at 17:30 hours, where, in Room No,209, Gohar Sultan was present with one other person Feroz. During conversation, said Gohar Sultan informed the complainant that his driver has gone to Hattar Industries to collect money and the relevant documents were lying in the said vehicle. In these circumstances, Gohar Sultan along with Muhammad Khurshid and Feroz boarded in a Carry Van brought by Gohar Sultan from Hassan Abdal and left for Hattar. At this time a sum of Rs,312,000 was also available with Muhammad Khurshid in the said Carry Van. When despite night time they did not turn up, the complainant kept on waiting and in the morning at about 6:00 a.m., Gohar Sultan informed him that his driver and Muhammad Khurshid have left for Shalimar Hotel, Rawalpindi because at 8-00 a.m., a. Meeting was scheduled. Upon this, the complainant returned home, but suddenly he doubted the bona fides of Gohar Sultan and rushed with one Liaqat Khan to Islamabad Airport, where at about 11-00 a.m., he saw Gohar Sultan and Feroz reaching at the Airport in a taxi. The moment, said Gohar Sultan saw the complainant and Liaqat, he again boarded in the taxi and disappeared while Muhammad Khurshid did not return back. Complaint of the incident was lodged accordingly.

4. Upon receipt of such complaint, investigation of the crime was partly conducted by Ghulam Abbas, A.S.-I. And thereafter by Sardar Muhammad Ali Khan, SI and on the basis of evidence collected by them (Investigating Officer), three persons Muhammad Daud, Gohar Sultan and Shajar-ul-Haq alias Feroz were challaned before the trial Court with the allegations of commission of offence under sections 364, 302, 201 and 34, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Before the trial Court, in the first instance, accused Muhammad Daud was charged with the commission of such offence on 11-1-1996. On 16-5-1997, after the arrest of Gohar Sultan, charge was reframed against two accused Muhammad Daud and Gohar Sultan, and finally, after the arrest of third accused Shajar-ul-Haq alias Feroz, on 16-6-1998, all the three accused were charged for the commission of offence as under:-- "I, Pervaiz Ali Chawala, Addl. Sessions Judge, Rawalpindi, do hereby charge you as under:--

(1) Muhammad Daud son of Muhammad Akram caste Awan r/o Sabaz Pir, Police Station Hassanabdal, Distt. Attock.

(2) Gohar Sultan son of Noor Bukhash caste Mughal r/o Sabaz Pir, Police Station Hassanabdal, Distt.

Attock.

(3) Shajar-ul-Haq alias Feroze son of Muhammad Siddique caste Rajpoot Chohan r/o Talwara, Police Station Lotra, Distt. Sialkot at present Quarter No,225 19-F Wah Cantt.

' That on 17-10-1994, you all the above named three accused persons abducted Muhammad Khurshid s/o Naqeeb Khan caste Mughal r/o Mehrabad, from the premises of POF Hotel, Wah Cantt.

In order that he might be murdered and thereby you all committed an offence punishable under section 364 read with 34, P. P. C .

' Secondly, that on the said date, you all the above named accused persons, after having abducted aforesaid Khurshid, in furtherance of common intention, you all committed qatl-e-amd of said Khurshid in the area of village Porr Miana PS Hasanabdal and thereby you all committed an offence punishable under section 302 read with 34, P.P.C.

' Thirdly, that on the said date, after having abducted aforesaid Khurshid, you all the above named accused persons committed theft of an amount of Rs,3,12,000 after having made preparation for causing death of aforesaid Khurshid and thereby you all committed an offence punishable under section 382 read with 34, P.P.C. In furtherance of common intention of you all.

' Fourthly, that on 19-10-1994 you Daud accused were found in possession of stolen cash amounting to Rs,29,000 which you had dishonestly kept in your possession having the same stolen property and thereby you Daud accused committed an offence punishable under section 411, P.P.C.

' Fifthly, that you Gohar Sultan accused on 31-5-1996 from your house situated in Sabaz Pir, Hassanabdal got recovered a cash of Rs,40,000 which being the stolen property and having kept by you Gohar Sultan accused in your possession dishonestly having the same as stolen property and thereby you Gohar Sultan committed an offence punishable under section 411, P.P.C.

' AND WHEREAS, the aforementioned offences are within the cognizance of this Court and it is hereby directed that you all be tried accordingly by this Court."

5. On denial of such charges, by all the three accused in the crime, they were put to trial and prosecution was called upon to lead its evidence. During (de novo) trial of the sessions case, due to reframing of charge on 16-6-1998, which virtually commenced after more than three years of the occurrence, the prosecution in order to prove its case, examined 22 witnesses and on the basis of material collected by the Investigating Officer during the investigation of the crime, relevant documents marked Ex-PB to PY were produced. All the prosecution witnesses were cross examined by different counsel representing the accused before the trial Court. Particularly P. W.15, Abid Ali and P.W.18 Sardar Muhammad Ali Khan, S.I were subjected to lengthy cross examination by the defence counsel, being the eye-witness and 1.0 of the crime. After completion of prosecution evidence, section 342, Cr.P.C. Statements of all the three accused, appellant (Muhammad Daud), Gohar Sultan (acquitted by the appellate Court) and Shajar-ul-Haq alias Feroz (acquitted by the trial Court) were recorded on 22-1-1999, wherein they denied the whole case of prosecution and pleaded their innocence.

6. On conclusion of proceedings in the sessions case, the trial Court passed its impugned judgment dated 29-1-1999 in Sessions Case No,30 of 1996, arising out of above referred F.I.R. No,497, wherein it concluded that due to insufficiency of evidence, the prosecution had failed to prove the guilt of accused Shajar-ul-Haq beyond reasonable doubt, therefore, he was acquitted of all the charges.

As against it, the present appellant and Gohar Sultan, (who was acquitted by the appellate court) were found guilty for committing qatl-e-amd of Muhammad Khurshid in furtherance of their common intention as well as his abduction, thus, under section 364, P.P.C. They both were awarded imprisonment for life with fine of Rs,30,000 and in default to undergo R.I for one year. In addition to it appellant and co-accused Gohar Sultan were also convicted under section 302-(a), P.P.C. And awarded death sentence. The benefit of section 382-B, Cr.P.C. Was, however, extended to them.

7. The two appeals, preferred by the present appellant and other convict-Gohar Sultan; the Criminal Revision preferred by Mst. Askar Jan against the acquittal of Shajar-ul-Haq and non- awarding of compensation, as well as the murder reference made by the trial Court, were heard together and disposed of by a learned Division Bench of Lahore High Court vide its impugned judgment, whereby, the appeal preferred by convict Gohar Sultan was allowed and he was acquitted from all charges, while the appeal preferred by present appellant and revision petition preferred by Mst. Askar Jan were dismissed, and murder reference against the appellant was answered in the affirmative.

8. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant in Criminal Appeal No,252 of 2005 and for respondents Nos.1 and 2 in other connected Criminal Appeal No,251 of 2005 made his submissions with detailed reference to the depositions of various prosecutions witnesses, particularly P.W.18, Sardar Muhammad Ali Khan, S.1, Investigating Officer of the crime and the only alleged eyewitness, P.W.15 Abid Ali, to show that the evidence adduced by prosecution suffered from material contradictions, therefore, on the basis of such weak evidence, conviction and sentence awarded to the appellant Muhammad Daud is unwarranted by law. In support of his arguments, learned counsel made reference to the case of Wazir Muhammad v. The State (2005 SCM R 277) which lays down that fundamental principle of universal application in the case dependent 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.

9. Precisely, submission of Mr. Latif Khosa was that there was no credible ocular or circumstantial evidence available with the prosecution to prove the guilt of the appellant beyond reasonable doubt, thus it was a fit case for his acquittal.

10. Conversely, Mr. M. Bilal, Sr. ASC, arguing the case on behalf of the appellate Mst. Askar Jan, contended that the case of prosecution against the present appellant Muhammad Daud as well as other convict Gohar Sultan, who has been acquitted by the appellate Court, was fully proved from the prosecution evidence, on the basis of ocular testimony of P.W.15, Abid Ali and strong circumstantial evidence in the form of recovery of dead body of the deceased at his instance, so also the recovery of crime weapon and other incriminating material as per Exhs-PB-1 to PE, etc. Precisely, his submission was that the trial Court-had thoroughly examined the whole evidence adduced by the prosecution to reach at the conclusion that the guilt of the appellant Muhammad Daud and respondent No,2, Gohar Sultan was fully proved, therefore, such findings, being based on proper and careful appreciation of evidence, keeping in view the section 342, Cr.P.C. Statements of the accused persons, called for no interference from the High Court in the criminal appeal, on mere conjectural discrepancies, having no material bearing on the prosecution case. Moreso, when due to the conduct of appellant and other accused persons, who remained absconding, proceedings in the Sessions Case were delayed and prosecution evidence was recorded after almost 4/5 years of the occurrence. Further submission of the learned counsel was that the minor discrepancies in the prosecution evidence shown by the learned counsel for the appellant were bound to occur as a natural phenomenon when the witnesses were examined by the Court after a long time of the occurrence. In the end learned counsel also strongly pressed Criminal Appeal No,251 of 2005 for seeking reversal of the findings of the appellate Court; conviction of accused Gohar Sultan acquitted by the appellate Court by extending him the benefit of doubt, and for awarding of reasonable compensation to the legal heirs of deceased Muhammad Khurshid, which is mandatory in nature in terms of section 544-A, Cr.P.C.

11. Mian Asif Mumtaz, DPG for the State fully supported the submissions of Mr. M. Bilal, Advocate and contended that not only the conviction awarded to the present appellant Muhammad Daud should be upheld but the Criminal Appeal No,251 of 2005, preferred by the mother of deceased Muhammad Khurshid should also be allowed, as the acquittal of other convict Gohar Sultan, ordered by the High court, is result of misreading and non-reading of evidence, otherwise, on record there was sufficient evidence against him to show that he was the main planner and culprit of the crime, who had hired the services of his nephew Muhammad Daud for his nefarious design and grabbed money after the murder of an innocent person, for which unshaken evidence of one independent eye-witness was more than sufficient to prove their guilt. In support of his arguments that in the present case, in view of strong circumstantial evidence and the evidence of eye- witness, P.W.15, the guilt of appellant Muhammad Daud and respondent No,2, Gohar Sultan was fully proved, and they were not entitled for any latitude in the matter of sentencing, he placed reliance on the case of Inayatullah v. State (PLD 2007 SC 237) which lays down the principle that generally capital punishment can not be awarded to accused person on the basis of circumstantial evidence, however, if the pieces of circumstantial evidence collected during investigation were put in a juxtaposition, which brings his case in the area where accused was connected with the commission of offence, coupled with the fact that prosecution witnesses were disinterested, then on the basis of such strong circumstantial evidence, capital punishment could be awarded.

12. We have carefully considered the submissions made by the learned counsel for the parties and with their able assistance, gone through the bulky record of Sessions Case No,30 of 1996, arising out of F.I.R. No,497 dated 18-10-1994, and also the consolidated paperbook in Criminal Appeals Nos.19/20 of 1999 prepared before the Lahore High Court.

13. The case of prosecution mainly hinges upon the testimony of the P.W.15, Abid Ali, who was driver of the Carry Van RIP-1640, used by the accused persons, including the present appellant, for moving from one place to another in the company of deceased Muhammad Khurshid. It will be thus proper to discuss the veracity of the deposition of this witness, who was, prima facie, not only natural witness of the occurrence but also an independent one, being hired by the co-accused Gohar Sultan for his travelling purposes. Said witness in his examination-in-chief has stated as under:-- "On 17-10-1994 I used to drive Carry Van RIP/1640. It was owned by Malik Tahir. I. Used to drive in the area of Hasan Abdal. On 17-10-1994 Gohar Sultan accused came to me at Hasan Abdal and he hired my above mentioned Suzuki Carry. He asked me to go towards Haripur. I proceeded little bit towards Haripur on Ahmed Din Road, accused Gohar Sultan boarded two bailchas and two iron boxes. Daud accused also boarded the pickup from there. I enquired from him as to why he had boarded the said articles, he replied that these were to be given to someone. I proceeded towards Haripur Road and when we reached at a place known Lab. Thathoo. The accused persons got the pickup stopped there and met a person there. We then came back to POF Hotel at Wah Cantt. It was about five PM. Gohar Sultan accused went inside the hotel. After a little while, he came out and asked me to take him to Aslam Market Wah Cantt. We went there and he met there a person namely Shajrul Haq who is present today in Court. We then came back to POF Hotel Wah Cantt.

Gohar Sultan accused went inside the POF Hotel. After a little while he came along with a beard person whose name later on was disclosed Khurshid. I, Daud, Gohar Sultan accused persons and said Khurshid boarded the pickup. Gohar Sultan asked me to go towards Hattar. Gohar Sultan accused boarded the pickup with me on the front seat, Khurshid deceased and Daud accused boarded the rear seat of the pickup. When I reached at Mohra Hasru. Gohar Sultan asked me to turn the pick up to his land where the buldozer was operating. We went to the said place where the buldozer was being operated. We came back and boarded the Pick-up again. Gohar Sultan accused asked me to go towards Barrier No,4 to reach Hattar. I then went on Plaser Road. When I turned the pick up towards Hattar on the Plaser Road, a jungle came there. Gohar Sultan accused got the Pick-up stopped on the pretext that he wanted to go to urinate. Gohar Sultan, Khurshid deceased and Daud accused alighted from the pickup. Gohar Sultan and Daud both accused persons also lifted the bailchas from the Pick-up, I enquired that why the bailchas were picked up.

Gohar Sultan replied that since there was a danger of wild animals, therefore, they had picked up their bailchas. Gohar Sultan accused asked me to turn the beams of the vehicle towards jungle which were enlightened. I turned the face of the vehicle towards jungle. Gphar Sultan accused started beating the deceased Khurshid. Stated again that Daud also started beating. I ran from there on foot. The vehicle remained standing there. I came to my house. I informed my father and my brother and reported the matter to the Police. The name of my father is Ghulam Farid and name of my brother is Bukhsheesh Ellahi (P.Ws. Given up)."

14. In the light of above stated facts by P.W.15, Abid Ali, he was firstly cross-examined in detail by the counsel for the appellant, thereafter, by the counsel for the co-accused Gohar Sultan and lastly by the counsel for third accused. Shajar-ul-Haq, but all of them failed to bring out anything material from his mouth to show that either he was a setup witness or that he was having any motive for false implication of accused in the commission of crime. In this regard findings of the appellate Court contained in paragraph 15 of the impugned judgment, seems to be unimpressive and faulty, as mere non holding of driving license by P.W.15 Abid Ali, or happening of things in one manner and not the other, which might have been more desirable, was not significant enough to discredit his whole testimony, which was to be gauged as a whole, keeping in view that the incident had occurred on 17/18-10-1994 and his evidence was recorded before the Court on 18-7-1998. The involvement of present appellant in the commission of crime, further finds support from the recovery of dead body of deceased Muhammad Khurshid as well as recovery of other incriminating material i,e, iron box, shoe of the deceased, spade, blood stained earth, snatched money, etc, which, taken together with other documentary and oral evidence, furnished a complete chain of events, lending full support to the case of prosecution about the manner of occurrence. Although the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witness, but in our opinion those are not substantive enough or material to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of appellant and respondent Gohar Sultan in the commission of the crime. Learned counsel for the appellant was specifically confronted about the independent status of P.W.15 in the whole occurrence, but he could not offer any plausible reply to meet this situation.

15. Even at the cost of repetition, it will be worthwhile to mention here that in a situation where evidence of an independent and disinterested witness is recorded after 4/5 years of the occurrence, some discrepancies in the date and timings as regards progress in the investigation of crime and happening of events etc. Are bound to occur, but the same cannot be considered fatal to the case of prosecution, as such conduct will be close to natural human behaviour; rather it would be unnatural and extraordinary if a person, discloses the exact time and date of happening of each and every event., which has occurred during the investigation of a crime four/five years ago.

16. As evident from Exh.PN (site sketch) the place of occurrence and the place of recovery of dead body, though in close proximity, but were two different places. It, therefore, follows that a person who knew the place of occurrence may not have any knowledge about the place where the dead body was buried. In the instant case, P.W.15, has categorically stated in his deposition that while the appellant Muhammad Daud and co-accused Gohar Sultan were inflicting blows at the deceased with their respective bailchas, due to "Ialkara" by them, he ran away from the place of occurrence.

It is, thus, reasonably clear that he did not know where, after his murder, the dead body of deceased Khurshid was buried concealed by the two culprits. Indeed, it has come in the E deposition of only independent witness of the occurrence P.W.15 Abid Ali that he, during interrogation by police, had disclosed them that he knew the place of occurrence, but in case, for any reason, the police did not act promptly on such information or there was any other minor lapse in the working of the Investigating Officer, complainant party cannot be penalized for it.

17. It is sufficiently established from material available on record that it was only the appellant Muhammad Daud, who, before recovery of dead body, knew the place where the dead body of deceased Khurshid was buried by him and co-accused Gohar Sultan, therefore, recovery of dead body by the police at his pointation, irrespective of some discrepancies in its timing, is strong circumstantial evidence against him for which there is no plausible explanation in defence offered by the appellant. Similarly, the fact that one of the P. Ws. Stated in Court that on the spot one hand of deceased was visible is of no significance, except to show that such exercise of hiding the dead body of the deceased was hurriedly undertaken by the culprits. Even otherwise, nothing has come on record to show the manner and the extent in which one hand of the deceased was visible.

Admittedly, dead body of deceased Khurshid was recovered from a ditch, thus, even otherwise visibility of some part of his body to some extent was not enough to expose the whole scenario unless somebody has gone near that ditch, which was at some distance from the place of occurrence.

18. As to the case of co-accused Gohar Sultan, who was acquitted by the appellate Court, it may be mentioned here that his involvement in the commission of crime is proved from the very initial stage of the incident when he contacted the complainant and called him at some particular time and place and from there took the deceased Khurshid with him in the vehicle driven by P.W.15 Abid Ali. We have no reason to disbelieve the testimony of this independent witness of occurrence, who was natural witness, and has himself seen and explained the whole manner of occurrence, in which deceased Khurshid was done to death by appellant Muhammad Daud and co-accused Gohar Sultan. The recovery of belchas at the pointation of the culprits, is yet another strong corroborative piece of circumstantial evidence, which cannot be brushed aside due to some minor discrepancies in the time and date of its recovery. Besides, at the dint of section 34, P.P.C., even otherwise co-accused Gohar Sultan is equally responsible for the commission of crime, for which he was charged, as he has played the most vital role in the commission of crime.

19. In the light of what has been discussed above, presumption of double innocence attached to the accused, who has been acquitted by the appellate Court will also not come to the rescue of co-accused Gohar Sultan. Moreso, as we are of the considered opinion that such judgment of acquittal in his favour, is based on misreading of evidence brought on record by the prosecution to prove his participation and guilt in the crime.

20. However, so far as the contention of the learned counsel for the appellant about the erroneous conviction of the appellant and respondent Gohar Sultan by the trial Court under section 302(a), P.P.C.. Is concerned, we are in agreement with his view that conviction, if any, for which the appellant was liable, was in terms of section 302(b) P.P.C. And not under section 302(a), P.P.C. We are also in agreement with the submission of the learned counsel for the appellant about the mitigating circumstances of the case qua awarding of lesser punishment to the appellant and respondent Gohar Sultan, while convicting them under section 302(b), P.P.C., as from the deposition of P.W.15, Abid Ali, the only eye-witness of occurrence, it is clear that the deceased Muhammad Khurshid was given beatings and caused injuries by the appellant as well as co- accused Gohar Sultan, but it is not clear that out of them, who was responsible for causing fatal blow to the deceased. As a matter of fact, the chain of events as explained by Mr. M. Bilal, learned counsel for Mst. Askar Jan, leads us to a definite conclusion that the role of co-accused Gohar Sultan was more active and heinous in the commission of crime as he was the mastermind, who had planned to abduct and murder Muhammad Khurshid with the assistance of appellant Muhammad Daud in the manner as explained in the evidence of prosecution witnesses. The fact that due to non- availability of the complainant Abdul Rashid in the country, he could not appear in Court to support his complaint, except his appearance in Court on 24-10-1996 and 11-11-1996, in the facts and circumstances of the case, is of no significance as the fact regarding lodging of such F.I.R. Was not disputed, and proved from the evidence of other P. Ws. To sum up, we conclude that the judgment of the trial Court dated 29-1-1999, awarding conviction to the appellant and co-accused Gohar Sultan on two counts, is to be upheld to this extent.

21. Reverting to the question of awarding of sentence, we are mindful of the fact that there is nothing before us to arrive at a definite conclusion that who out of the two accused guilty for causing injuries to deceased Muhammad Khurshid, had caused fatal blow to the deceased. This fact can be considered as valid mitigating circumstance for awarding lesser punishment to the appellant Muhammad Daud and co-accused Gohar Sultan. This being the position, the death sentence awarded to the appellant by the trial Court and maintained by the appellate Court is modified and reduced to imprisonment for life on both counts i,e, under sections 364 and 302(b), P.P.C., with awarding of compensation of Rs,100,000 to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And fine of Rs,30,000. In the result, death sentence awarded to the appellant is set aside and Criminal Appeal No,252 of 2005 is disposed of accordingly.

22. In view of the discussion made above, Criminal Appeal No,251 of 2005 is allowed and disposed of in the terms that respondent No,2, Gohar Sultan is also convicted on both counts i.e under sections 364 and 302 (b), P.P.C. For abduction and committing qatl-e-amd of deceased Muhammad Khurshid along with appellant Muhammad Daud. Therefore, he is also awarded sentence of imprisonment for life on both counts, with additional liability for payment of Rs,100,000 as compensation to the legal heirs of deceased Muhammad Khurshid in terms of section 544-A, Cr.P.C. And fine of Rs,30,000. In case of failure in making payment of compensation amount, it shall be recoverable from both convicts as arrears of land revenue and in addition to it, they will further undergo S.I. For six months each. The sentences awarded to the appellant Muhammad Daud and respondent Gohar Sultan are ordered to run concurrently and benefit of section 382-B, Cr.P.C. Is also extended to them. The trial Court is directed to issue warrant of arrest against convect Gohar Sultan so that he may serve out his remaining sentence.

' RAHMAT HUSSAIN JAFFERI, J.---This single judgment shall dispose of Criminal Appeal No,251 of 2005 (filed by Mst. Askar Jan) and Criminal Appeal No, 252 of 2005 (filed by Muhammad Daud), as they arise out of a common judgment dated 16-12-2002 of Lahore High Court, Rawalpindi Bench, Rawalpindi.

2. Briefly stated, the facts relevant for the disposal of these appeals are that on 18-10-1994 at 16:30 hours, on the basis of earlier report No,10, made by complainant Abdul Rashid son of Nageel Khan, F.I.R. No,497 of 1994 was registered at Police Station Wah Cantt. District Rawalpindi, regarding an incident which had taken place on 17-10-1994. According to the narration of facts in the said F.I.R., complainant Abdul Rashid was working at Riyadh, Saudi Arabia for a period of five years. He knew one Gohar Sultan son of Noor Bukhsh, resident of Mohallah Mehrabad, Hassan Abdal, who also used to work there. They both were doing the business of visas for taking Pakistani citizens to Saudi Arabia. In this connection, Gohar Sultan had taken a loan of Saudi Riyals 1,42,000 from the complainant about five months before he was going back to Pakistan with some visas to bring more Pakistanis to Saudi Arabia. About one and a half months ago, the complainant also reached home from Saudi Arabia and paid a sum of Rs,600,000 to Gohar Sultan in advance for sending some people to Saudi Arabia. On 17-10-1994, at about 7-00 a.m., Gohar Sultan visited the house of complainant and informed him that concerned man along with visas, passports and tickets had reached at POF Hotel, Wah Cantt. Therefore, the complainant should also reach there along with balance payment of Rs,312,000. In response, the complainant along with his younger brother Muhammad Khurshid and son Khurram Shehzad, aged about five years, reached at the said POF Hotel Wah Cantt. At 17-30 hours, where, in Room No,209, Gohar Sultan was present with one other person Feroz. During conversation, said Gohar Sultan informed the complainant that his driver had gone to Hattar Industries to collect money and the relevant documents were lying in the said vehicle. In these circumstances, Gohar Sultan along with Muhammad Khurshid and Feroz boarded in a Carry Van brought by Gohar Sultan from Hassan Abdal and left for Hattar. At that time, a sum of Rs,312,000 was also available with Muhammad Khurshid in the said Carry Van. When despite night time they did not turn up, the complainant kept on waiting and in the morning at about 6:00 a.m., Gohar Sultan informed him that his driver and Muhammad Khurshid had left for Shalimar Hotel, Rawalpindi because at 8:00 a.m., a meeting was scheduled. Upon this, the complainant returned home, but suddenly he doubted the bona fides of Gohar Sultan and rushed with one Liaqat Khan to Islamabad Airport, where at about 11:00 a.m., he saw Gohar Sultan and Feroz reaching at the Airport in a taxi. The moment, said Gohar Sultan saw the complainant and Liaqat, he again boarded in the taxi and disappeared while Muhammad Khurshid did not return.

Complaint of the incident was lodged accordingly.

3. During investigation, on 18-10-1994, Abid Ali (P.W.15) went to the Police Station Wah Cantt. Where the S.H.O. Recorded his statement. He stated before the Court that on 17-10-1994, in his Suzuki van, he took the deceased Muhammad Khurshid along with the appellant Muhammad Daud and acquitted accused Gohar Sultan in a Jungle on Blaiser Road near Hattar after going and visiting other places. Both the accused and the deceased went to the Jungle at about 2.00 a.m., but before that he (PW.15) was directed to park the vehicle facing Jungle with headlights on; hence, on the headlights he saw that both the accused caused bailcha blows to the deceased Muhammad Khurshid, thereafter he ran away from the place leaving behind his vehicle; reached his house, where he narrated the incident to his father and brother. In the morning, he went to Police Station Wah Cantt. Where he told the incident to Head Muharrar, who was present there, but he was asked to wait for S.H.O./Thanedar, after whose arrival his statement was recorded.

4. The record further reveals that on 19-10-1994 at about 5-20 a.m., the appellant Muhammad Daud was arrested by S.H.O. Sardar Muhammad Ali Khan (P.W.18) and was interrogated upto 6.45 a.m.

And then on the information of the appellant, the dead body of the deceased Muhammad Khurshid was recovered from Nala near the place of incident, which was identified by the complainant. The Police also secured blood stained bailchas along with other articles on the information of the appellant. The police after investigation submitted challan against three accused persons, namely Siraj-ul-Haq, Gohar Sultan and the appellant Muhammad Daud.

5. The trial Court after recording the evidence except the complainant, as he was shifted to Saudi Arabia acquitted the accused' Siraj-ul-Haq, whereas convicted the appellant Muhammad Daud and Gohar Sultan (respondent No,2 in Criminal Appeal No,251 of 2005). The appellant Muhammad Daud was convicted on the evidence of discovery of the dead body of the deceased on the information of the appellant, recovery of blood stained bailchas and statement of P.W.15, whereas acquitted accused Gohar Sultan was convicted after relying upon the evidence of P.W.15. The appellant Muhammad Daud and acquitted accused Gohar Sultan were sentenced to death for offence punishable under section 302(a), P.P.C. They were also convicted and sentenced to suffer imprisonment for life under section 364, P.P.C. On appeal, Gohar Sultan was acquitted of the charges disbelieving the evidence of P.W.15, whereas the conviction and sentence of the appellant Muhammad Daud were maintained on the evidence of recovery of dead body and blood stained bailchas on the information of the appellant by Lahore High Court, Rawalpindi Bench, Rawalpindi, under the impugned judgment dated 16-12-2002. Hence, the appellant Muhammad Daud has filed the present appeal with leave of the Court to challenge his conviction and sentence, whereas Mst.

Askar Jan (mother of the deceased Muhammad Khurshid), appellant in Criminal Appeal No,251 of 2005 has filed the appeal against the acquittal of Gohar Sultan and Siraj-ul-Haq. The Court granted leave to appeal only in respect of Gohar Sultan but did not grant leave to appeal in respect of Siraj-ul-Haq.

6. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellant in Criminal Appeal No,252 of 2005 and for respondents Nos.1 and 2 in connected Criminal Appeal No,251 of 2005 made his submissions with detailed reference to the depositions of various prosecution witnesses, particularly P.W.18, Sardar Muhammad Ali Khan, SI, Investigating Officer of the crime and the only alleged eyewitness, P.W.15 Abid Ali, to show that the evidence adduced by prosecution suffered from material contradictions; that the place of recovery of the dead body was already known to the police as per statement of P.Ws.3 and 15; that the case does not fall under Article 40 of Qanun- e-Shahadat Order, 1984, therefore, on the basis of such weak evidence, conviction and sentence awarded to the appellant Muhammad Daud is unwarranted by law. In support of his arguments, learned counsel made reference to the case of Wazir Muhammad v. State (2005 SCM R 277) which lays down that fundamental principle of universal application in the case dependent 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. Precisely, submission of Mr. Latif Khosa was that there was no credible ocular or circumstantial evidence available with the prosecution to prove the guilt of the appellant beyond reasonable doubt, thus it was a fit case for his acquittal.

7. Conversely, Mr. M. Bilal, learned Senior Advocate Supreme Court arguing the case on behalf of the appellate Mst. Askar Jan, contended that the case of prosecution against the present appellant Muhammad Daud as well as Gohar Sultan, who has been acquitted by the appellate Court, was fully proved from the prosecution evidence, on the basis of ocular testimony of P.W.15, Abid Ali and strong circumstantial evidence in the form of recovery of dead body of the deceased at his instance, so also the recovery of crime weapon and other incriminating material as per Exhs-PB-1 to PE, etc. Precisely, his submission was that the trial Court had thoroughly examined the whole evidence adduced by the prosecution to reach at the conclusion that the guilt of the appellant Muhammad Daud and respondent No,2, Gohar Sultan was fully proved, therefore, such findings, being based on proper and careful appreciation of evidence, keeping in view the statements of the accused persons, called for no interference from the High Court in the criminal appeal, on mere conjectural discrepancies, having no material bearing on the prosecution case. Further submission of the learned counsel was that the minor discrepancies in the prosecution evidence shown by the learned counsel for the appellant were bound to occur as a natural phenomenon when the witnesses were examined by the Court after a long time of the occurrence. In the end learned counsel also strongly pressed Criminal Appeal No,251 of 2005 for seeking reversal of the findings of the appellate Court in respect of the respondent Gohar Sultan and for awarding of reasonable compensation to the legal heirs of deceased Muhammad Khurshid, which is mandatory in nature in terms of section 544-A, Cr.P.C.

8. Mian Asif Mumtaz, DPG for the State fully supported the submissions of Mr. M. Bilal, Advocate and contended that not only the conviction awarded to the present appellant Muhammad Daud should be upheld but the Criminal Appeal No,251 of 2005, preferred by the mother of deceased Muhammad Khurshid should also be allowed, as the acquittal of other convict Gohar Sultan, ordered by the High Court, is result of misreading and non-reading of evidence, otherwise, on record there was sufficient evidence against him to show that he was the main planner and culprit of the crime, who had hired the services of his nephew Muhammad Daud for his nefarious design and grabbed money after the murder of an innocent person, for which unshaken evidence of one independent eye-witness was more than sufficient to prove their guilt. In support of his arguments that in the present case, in view of strong circumstantial evidence and the evidence of eye- witness, P.W.15, the guilt of appellant Muhammad Daud and the respondent Gohar Sultan was fully proved, and they were not entitled for any latitude in the matter of sentencing, he placed reliance on the case of Inayatullah v. State (PLD 2007 SC 237) which lays down the principle that generally capital punishment cannot be awarded to accused person on the basis of circumstantial evidence, however, if the pieces of circumstantial evidence collected during investigation were put in a juxtaposition, which brings his case in the area where accused was connected with the commission of offence, coupled with the fact that prosecution witnesses were disinterested, then on the basis of such strong circumstantial evidence, capital punishment could be awarded.

9. Having heard the learned counsel for the parties, learned Deputy Prosecutor-General and perusing the record of the case with their assistance, we find that the appellant Muhammad Daud was convicted by the High Court on the evidence of discovery of dead body and blood stained bailchas on his information. The discovery of any fact on the-information of the accused in custody of Police is admissible under Article 40 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order'), which reads as under:- "40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

' A perusal of above Article reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. Secondly, it is founded on the principle that if the statement or information of the accused amounts to confession or otherwise is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. It comes into operation only (i) if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody; and (ii) if the information relates distinctly to the fact discovered.

10. Thus, firstly there should be an information or statement of the accused whether it may be confession or otherwise and that too when he was in police custody and secondly on the basis of such information or statement a fact is discovered. If there is no statement of the accused or information given to the Police, which is an essential requirement of the Article, then the subsequent discovery would become inconsequential. Further such information either oral or recorded by the police is required to be proved by the prosecution through evidence. Similar point was considered by Supreme Court of India in the case reported as Bhimappa v. State of Karnataka (AIR 1993 Supreme Court 1469) and at page 1471, it has been observed as under:-- "The only evidence regarding the disclosure is "come with me" and thereafter the accused proceeded towards Harugeri and stopped near the stream situate at a distance of about 2 kms.

Away and the accused took out the axe from inside the nallah (stream). In the absence of any disclosure statement the recovery of axe itself becomes meaningless."

11. In another case reported as State of Karnataka v. David Razario (AIR 2002 Supreme Court 3272), while interpreting section 27 of Indian Evidence Act, 1872, which is similar with Article 40 of the Order, it has been observed as under:-- "The statement which is admissible under section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confession or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Danu Gopinath Shirde and others (2000 Cri.LJ 2301). No doubt, the information permitted to be admitted in evidence is confirmed to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."

12. It has been further held in the case of Aher Raja Khima v. State of Saurashtra (AIR 1956 Supreme.

Court 217) that place of burial was known to the police from the first accused. Statement with respect to the place from second accused is inadmissible. It has also been held in the case of Krishna v. State (1999) 8 SCC 552) that place of concealment was known to the police. Discovery is inadmissible. It has also been observed in the case reported as State v. M. V. Mahesh (2003) 3 SCC 353 that information was already with the police, So statement of the accused leading to discovery cannot be relied upon.

13. Thus, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused. Reference is also invited to Jaffer Husain v. State of Maharashtra (AIR 1970 Supreme Court 1934). It is also important to note that the recovery of articles cannot be described as a discovery under Article 40 of the Order when they are not recovered from any hidden place and if in the normal course of investigation the investigation agency is bound to see them and take in possession without the accused making any statement of pointing them out.

14. In the present case, it is important to note that the prosecution led the evidence of P.W.15 in respect of place of incident. At this stage, his evidence is discussed only in respect of his knowledge about the place of incident and dead body. The place of recovery of dead body was 6 Karams away from the place of incident, as per site plan (Exh.PN) which was prepared on the instructions of P.Ws. This site plan also shows the place of incident where the deceased allegedly received injuries that was shown as point No,1, point No,2 was shown where the dead body laying in Nala, which was about 6 Karams away from point No,1 and point No,4 was the place where the vehicle of P.W.15 was present who also allegedly witnessed the incident. This fact has further been established from the statement of Jamshed Akhtar (P.W.3), who is Mashir of the recovery of dead body. According to his statement, on the information furnished by the appellant on 18-10-1994 at about 10 or 11 p.m., they reached the place of recovery at about 3 or 4 a.m. @ on 19-10-1994, after alighting from the vehicle and covering 60 yards, they found blood on the ground and at about 8/10 yards ahead they found the dead body of the deceased Muhammad Khurshid laying, which was covered with earth and one hand of the deceased was out of the earth. Thus the place of incident where the incident took place and the place from where the dead body was recovered were closed to each other and a hand of the deceased was out of the earth which was visible.

15. It is astonishing to note that P.W.18 recorded the statement of P.W.15 on 18-10-1994 at about 6.00 pm but he did not visit the place of incident. It is the duty of the Investigation Officer to investigate the case properly when he receives information about a cognizable offence. Inspite of the fact that P.W.18 received such information, but did not visit the place of incident. Had he visited the place of incident in the normal course then he would have recovered the dead body and was bound to see it as its one hand was out of the earth. This could have been made without pointing out by anybody.

16. From the statement of P.W.3, it has further been established that the dead body was recovered on 19-10-1994 at 3/4.00 a.m. Or at dawn time before the arrest of the appellant, which was made on 19-10-1994 at 5-20 a.m. From village Nikku as per P.W.18, Investigation Officer, and even after completion of interrogation of the appellant, which was done in the village Nikku that was started from 5.20 a.m. To 6.45 a.m. As per P.W.18. Thus it is clear that the place of recovery of dead body was already known to the police, therefore, any information furnished thereafter by the appellant does not come within the scope of Article 40 of the Order.

17. Be that as it may, P.W.15 informed the facts of the incident to his brother, father, Head Muharrar of Police Station and then to SHO on 18-10-1994. He had shown his presence in the Police Station Wah Cantt at about 11-00 a.m. His statement reveals that the complainant Abdur Rashid was also present there and he informed him the facts of the incident. Relevant portion of his statement reads as under:-- "When I narrated the story my statement was not recorded by the police officer who was present there and he asked me to stay till the Thanedar will come and then my statement will be recorded.

When Thanedar came in the police station, my statement was recorded but thereafter I was not taken to the place where the occurrence took place on the police vehicle. I did not suggest to the Thanedar to go with me to the place where the occurrence took place for the recovery of dead body. When Thanedar came in the police station he was told by the police officials present in the police station that I had come at 11 a.m. And was kept awaiting for him till the evening so his statement be recorded. It is correct that after narration of facts of occurrence by me at 11 in the police station no proceedings were undertaken by the police till the time Thanedar came back to the police station. When I reached at about 11 a.m. In the Police Station Wah, Daud accused was not present there. In my presence in the police station on 18-10-1994 Haji Abdul Rashid P.W. Came into the police station however I do not remember the time at which he came. Haji Abdur Rashid came in the police station after recording my statement in the evening. Till my arrival in Police Station Wah no case in respect of this occurrence was registered. When Haji Rashid P.W. Came in the police station, I, my father, my brother Baksheesh and the police inspector who recorded my statement were present there. We narrated the facts of the occurrence in the police station to Haji Rashid in presence of the police inspector."

' The above facts have been confirmed by P.W.18, Investigation Officer, S.H.O. Sardar Muhammad Ali Khan. Relevant portion of his statement reads as under:-- "At about 6 PM on 18-10-1994 it had come to my notice that deceased Muhammad Khurshid was murdered, however, the place of murder was not come to my notice as it was not stated by Abid Ali P.W. I recorded the statement of Abid Ali P.W. He had pointed out in his statement the place of occurrence. I did not take along with me Abid Ali from 6 PM on 18-10-1994 till 19-10-1994 till 6 AM to place of murder. Since in the darkness of night I did not go to the place of occurrence immediately after recording the statement of Abid P.W. When Abid P.W gave me the information at that time I had with me official vehicle as well as the police officials. It reveals to me from the statement of Abid that the place of occurrence was at the distance of hundred yards from the place where the vehicle was parked and it was visible in the lights of the vehicle. Despite availability of all the above mentioned resources I did not take Abid P.W. Along with me to the place of occurrence.

18. With regard to the burial of dead body, the Investigation Officer stated as under:-- "Since according to the information given by Abid P.W. The dead body was buried therefore I did not apprehend that there was any danger of the dead body being mutilated."

He further stated as under:-- "I arrested accused Daud at 5.20 a.m. On 19-10-1994 from village Nikku....After arrest of the accused I started his interrogation. I interrogated Daud accused on his arrest about the fact which came to my notice in the statement of Abid Ali recorded on 18-10-1994 that the deceased was murdered by the accused persons at the distance of one hundred yards from Blaiser Road and his body was lying buried there. The fact which was disclosed to me by Abid P.W. During interrogation of accused Daud that fact was confirmed by him. I interrogated the accused Daud in village Nikku from 5-20 p.m. To 6.30/6.45 p.m."

' From the above evidence, it is further clear that the place of incident and the place where the dead body was buried were known to the police even before the arrest of the appellant Muhammad Daud, as he was arrested on 19-10-1994 at 5.20 am. It is further established that the appellant simply confirmed the facts which were already disclosed by P.W.15 to P.W.18, as the appellant was being interrogated on such facts. It is also pointed out that the reason furnished by P. W.18 that he did not go to the place of incident due to darkness of night has been falsified by the Mashir of the recovery of dead body viz. P.W.3, who stated that at about 3/4.00 am, they reached the place of recovery. This further establishes the fact that before the arrest of the accused they were present at the place of incident and recovered the dead body. Thus the stand taken by the Investigating Officer is not correct and plausible that he did not go to the place of incident due to darkness of night. Further at about 6.00 pm, in the month of October darkness of night had not yet fallen.

19. As regards the information furnished by the appellant Muhammad Daud, the evidence of P.W.3 reveals that in the night in between 18/19-10-1994 at 10/11.00 pm, he went to the Police Station Wah Cantt. Where the appellant was present and he gave the required information. His statement has been falsified by P.W.18, who specifically stated that the accused was not in his custody on 18-10- 1994 at 10/11.00 p.m. Or that he ever brought the accused to the Police Station before disclosing the place of concealment of the dead body of the deceased and he further deposed that the appellant Muhammad Daud was arrested on 19-10-1994 at 5.20 a.m. And he interrogated the appellant at the place of arrest viz. Village Nikku. Thus on this account too, the evidence of the prosecution is unreliable and untrustworthy.

20. As regards the recovery of blood stained bailchas, the prosecution relied upon the evidence of P.W.3 and P.W.18. The evidence of P.W.3 reveals that on 18/19-10-1994 at 10/11.00 p.m., in the Police Station Wah Cantt. The S.H.O. Interrogated the appellant and on the said interrogation he, inter- alia, disclosed that he could lead to the recovery of bailchas, the weapon of offence. The statement, "He could lead to the recovery of bailchas" is admissible under Article 40 of the Order, but subsequent statement regarding "weapon of offence" is inadmissible. Reference is invited to the basic authority of the Privy Council on the above subject delivered in the case of Kotayya v.

Emperor (AIR 1947 (34) PC 67), which has consistently been relied upon by the superior Courts of this country and so also of India. From the evidence of P.W.3, it is clear that the information was furnished on 19-10-1994 at 10/11.00 p.m. In the Police Station, Wah Cantt where he along with other disclosure made the above statement. But his statement is neither corroborated nor supported by P.W.18, whose statement reveals that the appellant was arrested on 19-10-1994 at 5.20 p.m. From Village Nikku, where he was interrogated and made disclosure of leading the place of recovery of dead body and after recovery of the dead body the appellant further disclosed that he could lead the recovery of bailchas which was lying in the house of Gohar Sultan, his uncle in Hassan Abdal.

Both the statements are contradictory to each other, therefore, it is very unsafe to rely upon such type of evidence. However, the evidence reveals that the appellant led to the house and produced the bailcha, such place was not known to anybody except the appellant, therefore, it is admissible, as a conduct of the appellant, under Article 21 of the Order. Even, this piece of evidence by itself is not sufficient to convict the accused in the absence of any substantive piece of evidence, as the recovery of bailcha is a corroborative piece of evidence, which can only corroborate other piece of evidence. Reference is invited to "Noor Muhammad v. State (2010 SCM R 97)".

21. It is highly astonishing to note that both the Courts below convicted the appellant Muhammad Daud on the basis of inadmissible evidence, who after his conviction by the trial Court remained in death cell for about 16 years and is still confined there. Thus the findings of the Courts below cannot be sustained. Hence, the conviction and sentence awarded to the appellant Muhammad Daud are set aside and he IR is acquitted of the charges.

22. So far as the case of Gohar Sultan is concerned, he has been involved by P.W.15. The High Court did not believe his statement, therefore, discarded his evidence. His evidence with regard to witnessing the incident and his subsequent conduct appears to be highly doubtful. From his evidence, it appears that the accused had asked him to drive the vehicle towards the Jungle side, thereafter put on the headlights and immediately thereafter the incident took place. If someone wants to commit an offence, he would not allow any body to see it, particularly, when he goes inside the Jungle near the Road, with an apparent purpose that nobody should see him committing the offence. If the appellant and the respondent wanted that P.W.15 should see them committing the offence, then there was no need to roam around in the vehicle of P.W.15 for about 8 or 9 hours and then commit the offence in his presence.

23. Furthermore, the accused and the deceased were in the Jungle and P.W.15 was standing alone with the vehicle, the engine of the vehicle was in start position as per his own statement, therefore, he could have ran away by driving the vehicle from the said place. It does not appeal to commonsense that after witnessing the incident, P.W.15 would have left the vehicle, which he was driving and was in start position and would have covered about 10/12 kilometers by walking to reach his house. It has come in evidence that in between the place of incident and his house, there were Army Check Posts, but he did not inform the incident to anybody. Further, the presence of jungle in between the place of parking of vehicle and incident has not been supported by Tajamal Hussain, Patwari (P.W.10), who prepared the site plan on 1-11-1994 after about 12 or 13 days of the incident. He did not notice or state that there was jungle in between the above mentioned place but stated that there was no tree and the land in between such places was katcha and soft, whereas P. W.13 Fazal Rehman, mashir of recovery of blood stained earth stated that there was vacant plot around the place of recovery of dead body. He also did not state that there was jungle at such places.

24. Apart from above, the evidence of P.W.15 in respect of time of occurrence i,e, 18-10-1994 at 2.00 am is not supported by the medical evidence. P.W.6 Medical Officer stated that he conducted the postmortem on 19-10-1994 at 1-00 pm and time between death and postmortem was 2 to 3 days.

In cross-examination he stated that the U deceased had died in between 16-10-1994 at 1-00 pm. To 17-10-1994 at 1.00 pm. Thus the ocular testimony is in conflict with medical evidence. As such it is very unsafe to rely on P.W.15 on the above aspect of the case. The finding of the High Court in discarding the evidence of P. W.15 does not suffer from any illegality or irregularity. His evidence was appreciated on the well settled principles of law, therefore, no U interference is required.

25. In view of above position, the evidence of P.W.15 is unreliable, as such the finding of the High Court in acquitting Gohar Sultan of the V charge is hereby maintained.

26. It is further pointed out that considerations for deciding the appeal against acquittal and conviction are different. In the first case, if the judgment is perverse or reasons assigned therein are artificial and W flimsy or based on misreading or non-reading of evidence or a different opinion can be gathered, the judgment of acquittal cannot be upset. After examining the material available on record, we find that none of the above ingredients are attracted to in the present case.

27. In the light of what has been discussed above, the appeal (Criminal Appeal No,252 of 2005) filed by the appellant Muhammad Daud is allowed, whereas the appeal (Criminal Appeal No,251 of 2005) filed by Mst. Askar Jan is dismissed. The appellant Muhammad Daud is in custody. He shall be released forthwith, if not required in any other custody case.

' Order of the Court ' By majority judgment, Criminal Appeal No,252 of 2005, filed by appellant Muhammad Daud is allowed, whereas Criminal Appeal No,251 of 2005, filed by Mst. Askar Jan is dismissed. In case appellant Muhammad Daud is still in custody, he shall be released forthwith, if not required in any other case.