Cr. Appeal No, 308/2003 is directed against the judgment dated 29.5.2003 passed by the learned Addl. Sessions Judge Rawalpindi whereby appellant Rashid Hassan was convicted under Sections 302(b) PPC and sentenced to imprisonment for life with a compensation of Rs, 1,00,000/- under Section 544-A Cr.P.C. to be paid to the legal heirs of the deceased or in default to further undergo 6 months S.I. in case FIR No, 72/02 dated 2.3.2002 offence under Section 302 PPC registered at Police Station, Kahuta. District Rawalpindi. Benefit of section 382-B Cr.P.0 was extended to the appellant whereas the complainant has filed Cr. Rev. No, 152/2003 for enhancement of sentence of the appellant from imprisonment for life to death. I propose to dispose of both the matter through this judgment.
2. The prosecution story in brief is that on 2.3.2002 at about 2.10 a.m. Raja Abdul Hameed Hamid (PW.11) made statement (Ex.PJ) at Civil Hospita1 to Muhammad Saeed SI (PW.14) on the basis of which Ghulani Rasool, S.I (PW.13) recorded formal FIR (Ex.PJ/1) at Police Station Kahuta stating therein that the complainant was resident of Mohra Minhas and was temporarily residing at Satellite Town Rawalpindi. He and his elder brother had a bus and wagon which were plied from Narr to Rawalpindi. His maternal nephew namely Shahid Nawaz was responsible to supervise the bus and wagon. On 1.3.2002 Shahid Nawaz remained with the complainant for day time-and at 4.00 p.m. he left for his house. On the same day at about 11.00 p.m. he received telephonic message that said Shahid Nawaz had been. brought to THQ Hospital Kahuta in the injured condition. The complainant and his brother namely Abdul Aziz reached the hospital at Kahuta from Rawalpindi and came to know that said Shahid Nawaz boarded in a pick up from Kahuta and got down at Deghal stop Dakhali Nan- at about 7.45 p.m. On the same day at about 8:45 p.m. Aziz Councillor along with other persons shifted him to the Hospital in injured condition and he was also unconscious at that time. As a result of which he succumbed to the injuries which were on his left eye brow, on the left side of his chin and his face was also found swollen. He further mentioned in the FIR that Shahid Nawaz was murdered by unknown accused as they have no enmity with anyone.
3. After due investigation report under Section 173 Cr.P.0 was submitted in the learned trial Court.
Charge was framed against the appellant who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant was examined under Section 342 Cr.P.C. In reply to Question No, 2 he replied as under:-- "It was a blind murder and I was involved in this case by the complainant party due to suspicion.
The PWs deposed against me due to relationship with the deceased and the complainant."
Neither he opted to appear as his own witness in disproof of the allegation levelled against him as required u/S. 340(2) Cr.P.0 nor did he adduce defence evidence. The learned tried Court after hearing the parties, passed the above said conviction and sentence, which is being assailed through this criminal appeal.
4. Learned counsel for the appellant Syed Hassam Qadir Shah, Advocate has contended that this is a case of unseen occurrence wherein the P.Ws of last seen as well as Waj Takkar are interested witnesses. Similarly the evidence of extra-judicial confession made by Muhammad Akram (PW.7) is also full of discrepancies and same could not be relied upon for the purpose of conviction and sentence in a case of capital punishment. He further argued that recovery of blood stained sota was also planted one as same was allegedly effected from an open place out of the bushes and it was rain in the interregnum period, of occurrence and recovery. Hence it was not possible that the blood was to be remained on sota. He also stated that documents Ex.PE/2 and Ex.PF/2, allegedly statements under Section 164 Cr.P.0 made by Mushtaq and Wajid PWs were excluded from evidence by the learned trial Court as none of the makers of the statements was produced in trial Court and same evidence of extra-judicial confession is also of no value. Lastly, he contended that it is a case of no evidence and prayed for acquitted. He relied upon the judgments reported as PLJ 1980 Cr.C. (Lahore) 453, 1997 SCM R 1416, 1996 PCr.LJ 109, 2003 PCr.LJ 753;, 2000 SCM R 528, 1996 SCM R 188, 1985 PCr.LJ 1684, 1975 PCr.LJ 750 and 1968 SCM R 161.
5. On the other hand, learned counsel for the complainant, Malik Rab Nawaz Khan Noon, Advocate as well as Mr. Ikram Amin Minhas, Advocate for the complainant has vehemently argued that Raja Abdul Hameed Hamid (PW.11) had lodged the FIR bonafidely and he did not nominate any of the accused in the same and later on the present appellant was nominated as accused in the occurrence of murder and none of the PWs had enmity or grudge against him nor any enmity was suggested by the defence. Extra-judicial confession was voluntarily made by the appellant-convict before Muhammad Akram (PW.7) to get compound the offence, as offence was compoundable and there was no reason for making false statement by the prosecution witnesses wherein the whole detail of occurrence was given. They further argued that if the extra-judicial confession is voluntarily made that sole evidence would be sufficient for conviction. He argued that evidence of medical furnished by Dr. Shabbir Ahmad Khan was in conformity with the evidence of extrajudicial confession and same further supports the prosecution case. He argued that recovery of blood stained sota P.4 at the behest of the appellant was duly proved through the evidence of Hassan Asghar (PW. 10) and Ghulam Rasool, I.O. (PW. 14) and same was found blood stained as per report of Chemical Examiner. He lastly argued that this is a case of single accused and there was no motive for false implication and motive of occurrence was not controverted by the defence.
Ch. Muhammad Tariq, learned Addl. Prosecutor General also supported the arguments of the learned counsel for the complainant.
6. I have heard the learned counsel for the parties and have gone through the evidence on record with their able assistance.
7. Admittedly this is a case of unseen occurrence wherein no ocular account is available and similarly no person was nominated in the FIR rather Raja Abdul Hameed Hamid (PW.11) stated in the FIR that he or the deceased had no enmity with any person so the whole case of prosecution hinges upon the circumstantial evidence. The evidence of extra-judicial confession was furnished by Muhammad Akram (PW.7) who was `khalu. of the deceased, according to this witness the extrajudicial confession was made by the appellant before him on 3.3.2002 whereas his statement under Section 161 Cr.P.0 was recorded on 8.3.2002. He admitted this fact in the cross- examination that he visited the police station on the same day when the appellant made extrajudicial confession before him but did not state to the police or anybody else till the lapse of 5 days particularly during the interregnum he remained in the village. This witness being lhalu' of the deceased had close relationship with the deceased as well as the complainant but neither he made an effort to apprehend the appellant-convict nor to produce him before the police. Similarly document Ex.PE/2 a statement of Wajid Hussain, brother of the appellant, recorded under Section 164 Cr.P.0 and statement of Muhammad Mushtaq Ex.PF/2 also recorded under Section 164 Cr.P.0 by Fakhar-ul-Islam, Magistrate (PW.8) does not help the prosecution case as none of the makers of the statements referred above was produced before the learned trial Court. Even none of the statements Ex.PE/2 and E.PF/2 were recorded in the presence of appellant/accused. This piece of evidence is even not worth consideration particularly when the requirements of section 364 Cr.P.0 were not complied with.
Mushtaq Hussain (PW.6) stated that he dropped the appellant at Dhegal stop at about 7.30 p.m. and thereafter at 7.45 p.m. he dropped deceased at the same place as this P.W claims to be the driver of pick up but he admitted this fact in his cross-examination that he was arrested by the police in this murder case on the night of occurrence and remained with the police for 22 days and during the custody he was tortured by the police. The evidence of this P.W does not furnish any corroboration to the prosecution case as there is no evidence that accused was aware that the deceased would come at the same place after 15 minutes of his drop at Dhegal stop rather this evidence would show that despite the lapse of 22 days of the occurrence the prosecution as well as the complainant etc. was not sure about who was culprits of the alleged murder. The other evidence of last seen was furnished by Nadeem Iqbal (PW.9) who saw the appellant standing at Dhegal stop in a corner of street being armed with sota at about 7.35/740 p.m. but this P.W admits that he was a friend of the deceased and resident of Dhok Moreen which was for away from the place of occurrence and was a chance witness. Master Abdul Aziz (P.W. 5) was another witness who saw the appellant near the place of occurrence at about 8.15 p.m. when he went outside his house to answer the call of nature and later on at about 9.00 p.m. he heard that the deceased had been murdered and then he went to Dhegal. He also stated that the deceased had quarreled with the sons of Rahim (father of the appellant) but matter was patched up by the respectable. This P.W Master Abdul Aziz is also closely related to the deceased as his niece `bhanji' was married with the deceased and he admitted that there was no electricity in the village and night of occurrence was cloudy and deceased had quarrel with Wajid and Zahid who were brothers of the appellant which fact would show that the appellant had ho motive to kill the deceased, so the evidence of Master Abdul Aziz (PW.5), Mushtaq Hussain (PW.6) and Nadeem Iqbal (PW.9) is counter destructive being contra to one another when Mushtaq Hussain (PW.6) admitted that he remained in custody of the police for 22 days being arrested in the present case on the night of occurrence. This fact itself would show that all the evidence was nothing but a concoction.
Raja Abdul Hameed Hamid (PW. 11) is complainant of the case. It was his case that one Abdul Aziz Councillor and others found Shahid Nawaz deceased seriously injured at Dhegal stop but said Aziz councilor never appeared before the learned trial Court as a prosecution witness. This witness tried to improve the motive while saying that he was told about the quarrel between the deceased and the appellant by one Sohail but said Sohail was also never produced as a prosecution witness. The Motive part of the story was also disbelieved by the learned trial Court.
8. As far as recovery of sota P.4 s concerned, admittedly that was recovered on 30.3.2002 from grass within a bush which was an open place and it was admitted by the Muhammad Saeed S.I/I.Od (PW.14) that there was heavy rain in the interregnum period, of occurrence and recovery, so it was not possible that the 'sota recovered after about a month could be stained with blood when the same was examined about 36 days of the occurrence, so the report of Chemical Examiner that the sota was blood stained, would be of no help for the prosecution. Muhammad Saeed, S.I (P.W.14) also admitted that the complainant party arranged tracker dogs on the next day of occurrence but due to heavy rain process could not be finalized. However, he suppressed the factum of arrest of Mushtaq Hussain (PW. 6) which came on record from the evidence of P.W.6 itself. The I.O. also admitted that place of recovery was an open place at a distance of about 100 yards from the place of occurrence. All these discrepancies would show that this is a case of no evidence.
9. The brief resume of the case law relied upon by the leaned counsel for the complainant is that evidence of extra-judicial confession, if not seriously challenged, can be made basis for conviction and such confession can be used against the maker thereof, if it is corroborated by other evidence but at the same time it is also a settled proposition of law that last seen as a circumstantial evidence; for basing conviction thereon, must be incompatible with the innocence of the accused and should be relied upon with great caution and scrutinized minutely for reaching a conclusion that no plausible conclusion can be drawn there from except the guilty of an accused. All facts should be consistent with the hypothesis of the guilt of the accused; circumstances should be of a conclusive nature and circumstance should lead to moral certainty and actually exclude every hypothesis but one proposed to be proved, failure of prosecution to prove one link of the chain of circumstantial evidence destroys all the links of such evidence and all the links of the chain should be touching from one side, to the neck of the convict whereas from the other side to the dead body of deceased and no, conjectures, surmises and probabilities deducible from evidence, can take, the place of proof and finding of guilt must rest surely and firmly on the solid and cogent evidence but in the instant case, the dead body was not recovered at the instance of the appellant rather Abdul Aziz Councilor who saw the deceased in injured condition was not produced before the Court and accused was charged mere on the basis of suspicion. The evidence of last seen and extra- judicial confession was pregnant with inherent discrepancies and was counter destructive as discussedabove. Hence in my considered view, wherever any doubt arises that must go in favour of I the accused.
10. In view of above discussion, this appeal is allowed and the conviction and sentence awarded to the appellant vide judgment dated 29.6.2002 passed by the learned Additional Sessions Judge, Rawalpindi is set aside and the appellant is acquitted of the charge. He is on bail. He is discharged of surety.
11. Cr. Rev. No, 152/03 filed on behalf of the complainant for enhancement of sentence was not admitted to regular hearing. The same is dismissed for the reasons stated above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.