Muhammad Farrukh Mahmud, J.--Sultan Muhammad through Criminal Appeal No, 37(S) of 2001, by leave of this Court, has assailed judgment dated 09.10.1998, handed down by learned Federal Shariat. Court in case FIR No, 39 of 1993, registered at Police Station Levies Tehsil Dalbandin, Hudood "B" on 12.10.1993 at 09.30 a.m. for offence under Section 302 PPC read with offence under Section 17(4) of the Offences Against Property (Enforcement Hadood) Ordinance 1979, whereby the appellant and his co-convict Baz Muhammad were convicted for offence under Section 302(h) PPC and sentenced to death. They were also convicted for offence under Section 392 PPC and sentenced to 5 years R.I. each with fine of Rs, 1,00000/- each and in default of payment whereof the convicts were to suffer 2 years R.I. each.
The appellant Sultan Muhammad and Baz Muhammad faced trial in the above noted case. Vide judgment dated 01,10.1996 both of them were convicted for offence under Section 396 PPC and sentence to death. They were also directed to pay Rs, 1,00000/- each as fine or to suffer 2 years R.I. each. Half of the fine if recovered was to be given to legal heirs of the deceased (Abdul Rehman).
The appeals filed by Sultan Muhammad and Baz Muhammad were dismissed by the learned Federal Sbariat Court and their death sentences were confirmed in the above noted terms. Both the convicts filed petitions seeking leave to appeal. Vide an order dated 09.01.2001 leave was granted in following terms:-- It was submitted that the confessions made by the petitioners have been excluded from consideration by the learned Federal Shariat Court holding it to be involuntary and the result of coercion, therefore, the remaining evidence consisting of the statements of PW-4 Rehmat Ullah and PW-6 Haji Khan and the alleged recovery of knife could not form basis for conviction. We grant leave to consider whether evidence on record was sufficient enough to sustain conviction and sentence of death of the petitioners." During pendency of the appeals Baz Muhammad was released by the learned trial Court on the basis of compromise effected between him and the legal heirs of the deceased. So the learned counsel did not press the appeal of Baz Muhammad before us which has been dismissed through separate order dated 24.04.2009.
2. The above noted FIR was registered by Tehsildar Dalbandin Muhammad Hanif (PW-10) on the statement of Ali Murad Sepoy (PW1). The relevant facts, as per contents of the FIR are being reproduced as under.-- "It is submitted that today morning at about 9:30 a.m. I was collecting wood at same distance from Kuchaki Wadh. I saw one pick up of oil going from Kacha Road to Pacca Road of Dalbandin Noushaki. Three persons were boarding in it. I saw that at some distance this pick up stopped and after stationing for some time it returned back. When after collecting wood I was going for Kacha Road towards Pacca Road for Kuchki Post. I saw a lot of blood at that place and at some distance I saw a dead body who was thrown in the bushes after murder. I came to post and informed. I request that action may be taken in this connection. 12.10.1993. On receipt of information the same was reduced into writing and was read over to the complainant. From the contents of Report Offence U/S 302 (Qisas & Diyat Ordinance) and 17(3) seem to have been committed. Copy of FIR be sent to Assistant Commissioner Dalbandin. I, Muhammad Hanif Shahwani, is investigation the matter."
3. During trial, prosecution examined 10 witnesses in support of its case. Ali Murad appeared as PW- 1 and narrated the story according to FIR. Qadar Bux sepoy (PW-2) stated about the lying of blood stained body at the place of occurrence He also narrated about presence of 14 Jaricans and 3 barrels of petrol which were thrown away from the vehicle used by the accused. He also stated about the identification of the deceased through his National Identity Card. Jalil Ahmed secpy (PW-3) stated about the recoveries of clip knives which were dug out of tire sand at the instance of the accused on 14.11.1993. Rehmatullah (PW-4) and Haji Khan Jan (PW-6) both residents of Nushki stated that they saw near Padag Landi, one vehicle which was stuck in the sand, one of the accused was sitting on the driving seat while the other was standing behind the vehicle. According to them the accused told them that they had been fired upon by the custom authorities and PW's saw two barrels lying in the vehicle which were blood stained and on enquiry the accused informed the PWs that a passenger who was sitting in pickup was injured due to firing of custom authorities. The witnesses further stated that they helped the accused in pulling out the vehicle from the sand and thereafter they proceeded, towards Nushki. They met levies the personnel on their way who told the PWs that a dead body was lying there and that some pickup men had killed the deceased. Muhammad Rafique (PW-5)-levies Jamadar stated about recoveries of pickup from Murree tribe, according to him he had gone to Murree tribe Ummah Afghanistan. Three Murree people met him who after hearing his story handed over the pickup to him. Dr. Nazir Ahmad (PW-7) stated that on 12.10.1993 he conducted external examination of the dead body, during external examination he found 6 stab wounds on the person of the deceased, Injuries No, 1-2 were multiple wounds on throat and left ear. Khuda-e-Nazar (PW-8) stated about the recording of judicial confession of the accused, which was discarded by the Learned Appellate Court. Syed Abdullah (PW-9) brought on record report from Forensic Science Laboratory dated 22.06.1994. Muhammad Hanif (PW-10) stated about recording of the FIR and investigation of the case including the arrest of the accused, recoveries, identification of the accused by PW-4 and 6 and recovery of knives.
In their statements recorded under Section 342 Cr.PC both the accused claimed to be innocent and stated that they were involved in a false case due to enmity. The accused did not appear in their defence and also did not lead any defence evidence.
4. The learned counsel for the appellant, while referring to the leave granting order, re-produced above, submitted that the statements of PW-4 and 6 were not trust worthy, their identification of the accused was also not worthy of any credence and that the learned appellate Court had convicted the appellant on insufficient evidence and that the recovery of knife could not be used against the appellant.
5. Conversely it has been argued that prosecution successfully proved the case against the appellant through circumstantial evidence and that PW-4 and 6 who had seen the accused soon after the occurrence were independent witnesses and that the appellant led to the recovery of blood stained knife which was sufficient to connect him with the crime.
6. We have heard learned counsel for the parties and gone through the relevant record of the case.
As far as the judicial confession of the appellant before PW-8 is concerned, that was rightly discarded by the learned appellate Court, which remained unchallenged. Even otherwise the statement of Investigating Officer PW-10 reveals that after the confession the accused was handed back to him, so it could, not be said that the confession was voluntarily made.
According to prosecution case the deceased lost his, life due to injuries caused by sharp edged weapon. In order to prove it they relied upon the statement of Dr. Nazir Ahmad (PW-7). Perusal of statement reveals that no postmortem examination was conducted on the dead body of Abdul Rehman. According to doctor he conducted only external examination of dead body. He placed on record medical certificate Ex.P/7 which is available on page 114 of the paper book. The perusal of the certificate reveals that it was not mentioned therein that the injuries were antimatter. In addition to that it has not been mentioned in the certificate that the deceased lost his life due to injuries mentioned in the certificate. It is not a case where the occurrence was seen by the witnesses and the deceased lost his life within their view. In the instant case a dead body was found lying on a road with some injuries on its person. Without the postmortem examination it could not be said with certainty that the deceased lost his life due to injuries on his person. The report also does not reveal that the injuries were antimatter in nature. In our opinion, in the instant case the postmortem examination of the dead body was a must in order to establish the cause of death. As already noted above that it was not a case where the witnesses had seen the occurrence. We may refer to the judgment of this Court in case of Abdur Rehman Khan vs. State (PM 1999 SC 86) wherein it was observed that:- "We are persuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injures sustained without being any element of negligence or other intervention, the non-performance of post-mortem would not be fatal." We are conscious of the fact that medical evidence merely provides corroboration or support to substantive or circumstantial evidence. Acceptability of medical evidence obviously depends upon grounds or cogency of reasoning. After considering circumstances of the case, we are of the opinion that the medical evidence does not advance the prosecution case at all. The conviction has been maintained by the learned appellate Court mainly on the statements of PW-4 and 6. The learned appellate Court failed to consider that both of them were residents of Nushki which was at a distance of 150 miles from the place where they allegedly met the accused., Their statements were recorded on 11.11.1993 after about a month of the occurrence. According to these two PWs the accused were not known to them previously and they identified the two accused during the identification test. Undeniably the identification test was conducted at Police Station Dalbandin, on 11.11.1993, while according to PW-10 the accused were handed over to him and were in custody since 01.11.1993. There is no explanation as to why the identification test was conducted after 10 days of the arrest. Perusal of the identification test report, available on page 112 of the paper book, reveals that both the accused were mixed with six other persons. The report does not reveal whether the six dummies were identical or had similar features as the accused.
PW-10 on this regard stated before the learned trial Court that the identification parade was held three times C and each time eight persons were lined up with the accused persons. However, he did not remember how many of the 8 persons were keeping beard. He also did not remember as to how many participants were tall and how many were of short height. He denied that during identification parade the accused were wearing handcuffs. On the same points PW-4 stated that during identification parade there were people who were keeping beard while some of them were not keeping beard. He further stated that he did not remember whether the accused were wearing hand cuffs or fetters. According to him the identification parade was held only once. According to PW-6 at the time of identification test the accused were in hand cuffs and were wearing fetters. It may be added here that the statements of these two PWs were recorded on 11.11.1993. There is no plausible explanation as to why the statements of these PWs were not recorded when they first met the levies. This speaks volumes against their testimony and against the authenticity of the identification test. Similarly, the accused were given in the custody of PW-10 on 01.11.1993 and they remained at Police Station till their identification on 11.11.1993. In these circumstances the possibility that the accused were shown to the PWs at the Police Station could not be ruled out.
7. Admittedly the pickup allegedly used during the occurrence was not recovered from either of the accused. As far as recovery of blood stained knifes is concerned, PW-3 conceded in cross examination that it was Baz Muhammad, since released, who had led to the but and the but belonged to him. It is also note worthy that the alleged recovery of knives was affected on 14.11.1993 while they were received at forensic science laboratory on 22.06,1994 after more than 7 months.
The report further reveals that the entry of knife was made by pen after the completion of sentence which was typed. It is also interesting to note that according to PW-9 who was produced as Chemical Expert, he received two parcels on 19.06.1996 i,e, after more than three years and seven month of the occurrence.
8. We may mention here that only substantive piece of evidence against the appellant was judicial confession which was discarded. The other pieces of evidence are only supportive or corroborative in nature and can only be based for conviction if these come through unimpeachable source, which is lacking in this case.
On the contrary the prosecution case is replete with doubts. It is well settled that presumption, however strong it may be, could not take shape of proof.
9. The up shot of the whole discussion is that in our opinion the prosecution case is not free from doubts. Hence this appeal is allowed. The judgments passed by the learned Courts below are set aside to the extent of the appellant. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case.