JUDGMENT MUHAMMAD HASHIM KHAN KAKAR, J.---Appellants Ali Muhammad alias Baboo and.
Rasool Bakhsh have challenged the validity of judgment dated 3rd February, 2011 rendered by Special Judge, Anti-Terrorism Court, Dera Allah Yar, whereby they were convicted and sentenced under section 302(b) of the P.P.C. To suffer life imprisonment each and fine Rs.350,000 each to be paid-to the legal heirs of deceased minor, in default whereof to further under 5I for six months, under section 202 of the P.P.C. To suffer six months imprisonment and under section 7-A of the Anti- Terrorism Act, 1997 to suffer life imprisonment each and also to pay a fine of Rs.350,000 each to the legal heirs of deceased minor, in default whereof to further undergo SI for six months. The benefit of section 382-B of the Cr.P.C. Was Extended in their favour and the aforesaid sentences were ordered to be run concurrently.
2. On 8th October, 2010, a case vide Crime No.149 of 2010 (Exh.P/1-B), under sections 302 and 202 of the P.P.C. Read with section 7-A of the Anti-Terrorism Act, 1997 was registered by the police officials of City Dera Murad Jamali District Naseerabad police station on the Fard-e-Bayan Exh.P/1-A of complainant Dr. Dost Ali Javed. It was alleged by the complainant that on 25th September, 2010 at about 2-00 p.m., when he reached home, he was informed that about two hours back, his daughter Fatima Bibi aged about 5/6 years had gone outside of the house, but she did not turn up, at which he searched his daughter on his on and also made announcement through loudspeakers in different Masjids about missing of his daughter, but in vain. The complainant further alleged that he had reported the matter to police station city at about 8-35 p.m. On 5th October; 2010 at about 4-20 he, along with his relatives Abdul. Malik, Abdul Latif, Abdul Karim and others, in search of his daughter, when reached to his guestrom, felt intolerable smell of human dead body from the drain of his guesthouse, at which- they opened the cover of drain, in which the dead body of his daughter was lying, which was taken to Civil Hospital, Dera Murad Jamali with the help of police for conducting her postmortem examination and on receiving postmortem examination report, it transpired that some unknown accused persons have slaughtered his daughter by means of sharp edged weapon, committed her murder and concealed her dead body in the drain. Consequently, the aforesaid F.I.R. Was registered against unknown accused persons.
3. It may be noted that the complainant through another application dated 13th October, 2010 addressed to S.H.O., P.S. City, Dera Murad Jamali, has nominated the appellants along with absconding accused Ali Hassan to be the murderers Of his daughter, at which, the appellants were arrested and the investigation was entrusted to P.W.7 Ghulam Ali, who inspected the site, prepared site inspection note, also prepared site sketch Exh.P/7-A. He 'received postmortem examination report on 8th October, 2010. On 9th October, 2010, the complainant handed over him the cloths of deceased minor and on 13th October, 2010, submitted an application before him, nominating the accused persons. He recorded the statements of P.Ws., collected the inquest report Exh.P/7-B from Civil Hospital, Dera Murad Jamali, arrested the accused persons on 21st October, 2010, conducted their personal search vide memo Exh.P/7-C. On 4th November, 2010, accused persons made disclosure, at which disclosure memo Exh.P/7-D was prepared and on their pointation, recovery of crime weapon i.e. Knife was recovered from the guestroom of the complainant and after completion of investigation placed the papers before S.H.O., who prepared incomplete challan Exh.P/7-E and the appellants were sent up to face the trial.
4. On the stated allegation, charge was framed and read over to the appellants, to which they did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced 07 witnesses. P.W1 Dost Ali Javed is complainant of the case and exhibited Farde-Bayan Exh.P/1-A, F.I.R.
Exh.P/2-43 and application, nominating the appellants, as Exh.P/1-C P.W.2 Abdul Malik and P.W.3 Abdul Latif alleged to have opened the cover of drain along with the complainant and recovered the dead body. P.W.4 Ali Haider, HC, is witness to the site inspection memo Exh.P/4-A and recovery memo. Exh.P/4-B of clothes of deceased. P.W.5 Manzoor Ahmed, constable, is witness to the alleged disclosure of appellants and recovery of crime weapon i.e. Knife. He produced disclosure memo as Exh.P/5-A. P.W.6 Dr. Zahida Haroon, Lady Medical Officer, DHQ Hospital, Dera Murad Jamali, conducted the postmortem examination of the deceased and produced the same as Exh.P/6-A and P.W.7 Ghulam Ali, S.-I., is the Investigating Officer of the case. Then the prosecution closed its side.
5. Mr. Nouroz Mepgal, learned counsel for the appellants, argued that there is no incriminating evidence available on record, which could connect the appellants with the commission of crime.
The prosecution has badly failed to prove its case against them. The incident is unseen, but the trial court, while convicting the appellants, has unnecessarily given due weight to the unreliable evidence, therefore, appellants deserve acquittal.
6. Mr. Liaquat Ali, Advocate, appearing on behalf of Prosecutor-General, opposed the arguments of appellants' counsel and contended that the trial Court, after proper appraisal of evidence and record, haq rightly convicted and sentenced the appellants.
7. We have carefully considered the respective contentions put forth by the parties' counsel in the light of evidence available on record and also gone through the impugned judgement.
8. So far as the homicidal death of deceased Fatima Bibi is concerned, postmortem examination report Exh.P/6-A of the dead body of deceased was conducted by P.W.6 Dr. Zahida Haroon, Lady Medical Officer, DHQ Hospital, Dera Murad Jamali. She found the following Injuries on the person of deceased:--
(i) The dead body was head less. (ii) Slaughter of neck, cut of all major blood vessels.
(i.e) Cut of both right and left ears.
(iv) Cut of the left forearm
(v) Sharp injuries on the right arm and upper part of the chest.
She found the said injuries on the dead body, which were all ante-mortem and caused by a sharp edged weapon. According to the opinion of the doctor, death had resulted due to sharp weapons slaughter of neck, which is ante-mortem in nature and homicidal in character. Even otherwise, the defence has not disputed unnatural death of deceased.
9. The case of the prosecution regarding connection of the appellants with the crime is sought to be established by the alleged joint disclosures made by the appellants and recovery of crime weapon i.e. Knife from their possession on their pointation from the guestroom of complainant.
It would be relevant to reproduce herein below the relevant portion of the statement of P.W.5 Manzoor Ahmed, constable, which read as under:-- "On 4th November, 2010, during investigation, accused persons Ali Muhammad and Ghulam Rasool told the Investigating Officer that they can recover the knife, by means of which, they slaughtered the minor Fatima and murdered her. Both the accused persons by turn led the police to the guesthouse (Baithak) and by digging the earth, taken out the knife and handed over to the Investigating Officer, which was taken into possession through recovery memo and, he prepared its sealed parcel".
P.W.7 Ghulam Ali, S.-I. Has produced the alleged joint disclosures of the appellants, which speak as under:- "After arrest, accused persons made a disclosure that since they were broke, therefore, they hatched a conspiracy to take out the earrings of the daughter of Dr. Javed, who was playing and when the earrings were removed, she started weeping and due to fear that she may not tell the fact at home, they unwillingly slaughtered her in order to conceal the commission of crime".
From perusal of the above portion of statement of P.W.5 and joint disclosures, it is quite clear that the witnesses talk about two disclosures; one made before them regarding murder of deceased Fatima Bibi and second with regard to concealment of the crime weapon of the offence in the guesthouse of the complainant. So far as the disclosures made before them with regard to the murder of Ghulam Fatima, which amounts to confessions, otherwise, were inadmissible in view of the clog contained in Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984, as in pursuance thereof no 'new fact' was discovered. However, the second disclosure, which relates to the concealment of knife is concerned, that was admissible, as the alleged weapon of crime was recovered in pursuance thereof. However, we are of considered view that the evidence of the recovery of crime weapon by itself being evidence of purely of corroborating nature, in absence of any direct or substantive evidence, alone was not sufficient to bring home charge against the appellants. P.W.5 Manzoor Ahmed, during cross-examination, has admitted that the knife was not stained with blood. Needless to mention here that in the instant case, chemical examiner's report was not produced in evidence, so as to prove that the knife was stained with blood and if it was so, it had human blood and was of the same group as was of the deceased. It is now established that, unless substantive direct evidence is available, conviction cannot be based on any other type of evidence, howsoever, convincing it may be. Reference may be given to the judgments-reported in 1991 SCM R 643 and 1997 SCM R 290.
10. So far as the ocular account is concerned, it has been furnished by P.W.1 Dost Ali Javed (complainant), P.W.2 Abdul Malik and P.W.3 Abdul Latif, who have deposed that on.5th October, 2010, they were present in the guestroom (Baithak) of complainant, when they felt obnoxious smelling of putrefied dead body, on picking up the outer cover of gutter, the dead body of the minor was found lying therein. P.W.1 further added that he involved the appellants in the commission of offence, as A he suspected the appellants in "Balochi Halo-Ehwal". We are afraid with the finding of the trial court that how a capital punishment can be awarded, simpliciter, on account of suspicious and "Balochi Hal-o-Ehwal". Suspicion cannot take the place 'of proof. Life and liberty of persons cannot be put in jeopardy only on the basis of suspicion, however strong, and a person can be deprived of his invaluable right of personal liberty only on the basis of proof beyond reasonable doubt. We are not unmindful of the fact that Baloch have a rich culture and values protected under Article 28 of the Constitution of Islamic Republic of Pakistan, 1973, which speaks as under:- "28. Preservation of language, script and culture. Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and, subject to law, establish institutions for that purpose".
It is crystal clear from the perusal of above Article of the Constitution and principles of policy, as contained in the Constitution, that any section of citizens having a distinct language, script or culture have the right to establish institutions for promotion of said culture, but by no stretch of imagination, under the garb of any cultural event, a person can be found guilty of murder. "Balochi Hal-o-Ehwal" is a recognized method of communication, where acquainted people. Asked about the well-being of each other. Under the Balochi culture, an accused, while showing himself to be an innocent, can pass through the fire or can clear his position by means of taking the oath on Holy Qur'an, but in no way can be found guilty on account of Balochi Halo-Ehwal. Moreover, the complainant has not claimed that the appellants, at the time of "Balochi Hal-o-Ehwal", admitted their guilt, rather he has stated that he only suspected them to be involved in the commission of the offence. He has further admitted that, later on, the Holy Qur'an was brought by accused persons showing themselves to be innocent.
In such view of the matter, we are of the opinion that the appellants have been convicted and sentenced on the basis of inadmissible pieces of evidence. The prosecution has failed to prove the case against the appellants beyond any reasonable doubt, therefore, they are entitled to the benefit of doubt, which, was, accordingly, given to them at the time of passing short order dated 21st July, 2011, by which we had allowed the appeal and acquitted them of the charge.
These are the reasons of our said short order..