1. Iftikhar Hussain Butt, J.--As the above captioned reference and appeals pertain to the same incident and judgment of Additional District Court of Criminal Jurisdiction, Muzaffarabad, we propose to dispose off the same by this judgment.
2. Muhammad Arif Qureshi, the complainant, filed a report Exh.PA about his missing brother at City Police Station Muzaffarabad on 25.7.2008 alleging therein that his brother Al-Haj Ashraf Qureshi went out of the home at 12:00 p.m. on 24.7.2008 and did not come back. His Mobile Phone No. 03005166048 is also powered off. Therefore, his brother may be looked for. The above mentioned report v as registered as Report No. 30 in Roznamcha on the same day.
3. Said Muhammad Arif Qureshi, on 27.7.2008, lodged an F.I.R Exh.PC at 10:00 a.m. at City Police Station Muzaffarabad. He contended that he has already filed a report of his missing brother and he has been looking for him. During search, Shaikh Manzoor Ahmad, a shopkeeper, told him that on 24.7.2008 at 2:00 p.m. Ashraf Qureshi received a telephonic call upon his mobile from Abdul Rasheed Grista while he was sitting at his shop. He was called by him on upper Addah. After receiving the call, Ashraf Qureshi went out of his shop. Bilal Ahmad Qadri saw him riding in a white Mehran Car on CMH road at 2:30 p.m. He further contended that a dispute about ejection of rented plot situated near upper Addah exists amongst Abdul Rasheed Grista, Taufeeq Qadir Grista and Hamid where he and his brother are running business of firewood and cement stocks for the last 17 years and the numerous meetings of elderly people held prior to the occurrence but the plot could not be vacated because of non-availability of an alternative place. Therefore, complainant believes that the accused-persons named above with the help and connivance of other accused- persons have kidnapped his brother with the intention to kill him for the purpose of ejection of the plot.
4. On this report, Muhammad Riaz Mughal SI/SHO (P.W.49) registered a case under Sections 364-A, 109 & 34, APC and initiated the investigation. He took into possession a Nokia mobile phone. alongwith 2 SIMS from Abdul Rasheed Grista, accused, during his personal search (vide recovery memo. Exh.PL) in presence of Mahboob Ahmad Tariq (P.W.33) and Mukhtar Ahmad Qureshi (P.W.36) . On the same day, a Mehran Car IDN-8641 of white colour was taken into possession from Narrul stadium (vide recovery memo. Exh.PF) . A Jeep No. MDGA-571 was also recovered from Chhattar Secretariat near Seera office (vide recovery memo. Exh.PG) by said Muhammad Riaz Mughal SI in presence of Shaikh Manzoor Ahmad (P.W.3) and Ghulam Jillani Zargar (P.W.34).
5. On 28.7.2008 a bloodstained insect killer of white colour and a telephone diary having photographs of deceased were taken into possession by said Muhammad Riaz Mughal SI (vide recovery memo.
6. Exh.PM) from the house of Abdul Rasheed Grista, accused, at his instance attested by Mahboob Ahmad Tariq (P.W.33) and Mukhtar Ahmad Qureshi (P.W.36). On the same day, backside cover of a Samsung mobile alongwith its battery owned by deceased was recovered by Muhammad Riaz Mughal SI on the pointation of Abdul Rasheed Grista, accused, from Jalalabad garden near the grass shed (vide recovery memo. Exh.PN) attested by the aforesaid witnesses. He also prepared the site-plan Exh.PWW of the place of recovery of aforementioned articles.
7. He further took into possession a bloodstained hammer with its handle from grassy jungle near 'The President House' (vide recovery memo. Exh.PO) at the instance of Abdul Rasheed Grista, accused, attested by Mahboob Ahmad Tariq (P.W.33) and Mukhtar Ahmad Qureshi (P.W.36). He also prepared the site-plan Exh.PXX of the place wherefrom the weapon of offence was recovered.
8. He further took into possession a bloodstained double bed alongwith mattress and an Almira (vide recovery memo. Exh.PP) on the pointation of Abdul Rasheed Grista accused, in the presence of aforementioned witnesses. He also prepared the site-plan Exh.PYY of the place of recovery of above mentioned articles. On the same day, Muhammad Riaz Mughal SI/SHO took into possession pieces of a broken box, a blanket stained with blood and water and a torn out piece of cloth (vide recovery memo. Exh.PH) with the help of divers from river Jehlum near Gujjar Kohala Gillani Flour Mill, attested by Shaikh Manzoor Ahmad (P.W.3) and Ghulam Jillani (P.W.34). He also prepared the site-plan Exh.PZZ of the place of recovery of aforesaid articles.
9. On 29.7.2008, Muhammad Riaz Mughal SI referred Naser Ali accused to Police surgeon for his medical examination vide letter Exh.PVV and obtained his medical examination report Exh.PBBB and also took into possession a list of incoming calls from mobile phone of Abdul Rasheed Grista No. 03432085580 sent to the deceased on his Mobile Phone No. 03005166048 (vide recovery memo.
10. Exh.PI) in presence of Mahboob Ahmad Tariq (P.W.33) and Ghulam Jillani Zargar (P.W.34). The aforesaid list Exh.PJ/1, PJ/2 & PJ/3 was sent by Mobilink Mobile Phones Company. He also wrote a letter Exh.PUU dated 27.7.2008 to SP Muzaffarabad for obtaining the aforementioned list of incoming calls.
11. On 30.7.2008, Said Muhammad Riaz Mughal SI got deputed Sohail Azam SDM (P.W. 45) by A.D.M for supervising the preparation of the parcel of recovered bed.
12. On 31.7.2008, Muhammad Yaseen Baig DSP Investigation (P.W.47) took into possession burnt piece of Civil Defence Card of the deceased, two burnt pieces of his photographs and ash of ID card and other papers of deceased (vide recovery memo. Exh.PK) attested by Mahboob Ahmad Tariq (P.W.33) and Ghulam Jillani Zargar (P.W.34). He also took into possession a sale book from Faheem-ul-Hassan Pirzada (P.W.5), proprietor Pirzada Trunks Store (vide recovery memo. Exh.PII) in presence of Manzoor Hussain Shah HC (P.W.38) and Muhammad Ashraf Khan (P.W.39).
13. On 1.8.2008, Muhammad Farooq SI (P.W.46) found the, dead body at Baila-Bhadur Shah Dakhli Dhangalli Dudyal and prepared inquest report Exh.PMM, an injury form Exh.PNN arid site-plan Exh.PLL, wherefrom the dead body was recovered and sent the dead body for post-mortem.
14. On the same day, Dr. Naseer Ahmad Shaikh Police Surgeon (P.W.44) performed the autopsy of dead body of Al-Haj Muhammad Ashraf Qureshi. He observed the following injures on the dead body:--
1. Lacerated wound 5cm long and 4cm wide on left side of head of irregular shape due to fracture of underlying skull bones into multiple pieces.
2. Bruise measuring 7x5cm on the posterior part of head with fracture of underlying occipital bone into multiple pieces.
3. Linear laceration on anterior part of head surrounded by 2(1/2) x 2" print of a blunt weapon. The underlying bone wab fractured and depressed.
4. Lower left sided eight teeth fractured.
5. Ribs on both sides fractured (4 on right and 3 on left) .
6. Right humerus bone fractured at mid arm (upper arm) area.
7. Both elbow joints fractured.
8. Right hand crushed at the level of mid palm and the anterior part missing.
9. Depressed blunt weapons laceration measuring 2" x 2" on the posterior part of left hand.
15. 10.Femur bones of both thighs fractured.
16. 11.Both knee joints fractured.
17. 12.Left tibia and fibula of the same leg fractured at upper one third. REMARKS BY MEDICAL OFFICER: The cause of death seemed to be severe head injury resulting into brain damage and profuse bleeding. The manner of death homicidal. The weapon used seemed to be blunt hard.
18. On 2.8.2008, Muhammad Yaseen Baig DSP (P.W.47) took into possession a passport alongwith ticket from Toufeeq Qadir, accused, (vide recovery memo. Exh.POO) attested by Muhammad Farooq SI (P.W.46) and Muhammad Riaz Mughal (P.W.49).
19. On 5.8.2008, Muhammad Riaz Mughal SI got prepared site-plan Exh.PZ with its keynotes Exh.PAA from Ghulam Abbas Qureshi Patwari (P.W.37) alongwith copies of revenue record Exh.PBB and Exh.PCC.
20. On 11.8.2008, Muhammad Yaseen Baig DSP (P.W.47) took into possession a computer disk pertaining to telephonic contacts between Abdul Rasheed Grista accused and the deceased, and between Abdul Rasheed Grista accused and Naser Ali accused on the day of occurrence and thereafter (vide recovery memo. Exh.PQQ) handed over to him by Amjad Hussain Shah Constable No. 592 in presence of Muhammad Ashraf Head Constable (P.W. 39) and Muhammad Farooq SI (P.W.46).
21. On 12:8.2008, he took into possession six iron pillars from disputed plot, which were taken there by the accused-persons for obtaining the possession (vide recovery memo. Exh.PY) in presence of Kh.
22. Tariq Iqbal (P.W.35) and Shaikh Mati-ur-Rahman P.W. On the same day, he also took into possession report Roznamcha about missing of deceased from Muhammad Asghar HC (vide recovery memo. Exh.PKK) attested by Muhammad Ashraf HC (P.W.39) and Muhammad Farooq SI (P.W.46). He also obtained report Exh.PFF from Ghulam Abbas Qureshi Patwari (P.W.37) alongwith a copy of revenue record Exh.PGG and site-plan Exh.PHH wherein disputed property Survey No. 20 was shown to be owned by Kh. Abdul Rasheed Grista, accused and in possession of the deceased.
23. He further obtained report Exh.PTT/2 by Basit Hussain Sub-Engineer (P.W. 18) whereby the house of Abdul Rasheed Grista, accused, was found painted within two week time.
24. During the aforementioned investigation, it was opined that the accused-persons Abdul Rasheed Grista, Taufeeq Qadir Grista and Hamid Qadir Grista, on account of enmity and dispute of plot, hired murderers Naser Ali and Sikandar from Sara-e-Alamgir, District Gujarat, killed Al-Haj Ashraf Qureshi and threw his dead body from Gujjar Kohala in river Jehlum after putting it in a box, which was later on recovered from river Jehlum near Dhangalli the limits of Police Station Dudyal, District Mirpur. Consequently, the accused-persons except Sikandar were sent to face trial before District Criminal Court Muzaffarabad in offences under Sections 364, 302, 201, 109 & 34, APC whereas the name of Sikandar accused was placed in column (2) of challan as an absconder.
25. The charge was framed but the accused-persons did not plead guilty and opted the trial. The prosecution produced (49) witnesses in support of its case. After completion of the prosecution evidence, all facts and circumstances existing against the accused-persons in the prosecution evidence were put to them for their explanation as required by Section 342, Cr.P.C. but they refuted the prosecution evidence and claimed to be innocent.
26. Muhammad Khurshid, (D.W.1) was produced in defence evidence but the accused-persons did not enter the witness-box under Section 340 (2), Cr.P.C. to vindicate their position by deposing on oath.
27. After completion of the trial, the Additional District Criminal Court Muzaffarabad convicted Abdul Rasheed Grista and Naser Ali and sentenced them to death at `Ta'zir' under Section 302, APC alongwith compensation Rs. 5,00,000/- each under Section 544-A, Cr.P.0 which after realization will be paid to the heirs of the deceased and in case of default whereof they will undergo sentence of 6 months each and alsc sentenced 5 years R.I under Sections 364, 201 & 34, APC alongwith a fine Rs.
28. 1000/- each in default whereof they will undergo sentence of 6 months each. The other accused- persons Hamid Taufeeq and Taufeeq Qadir were acquitted of the charge vide its judgment dated 04.08.2009. Feeling aggrieved and dissatisfied, the convict-appellants Kh. Abdul Rasheed Grista and Naser Ali have filed an appeal for setting aside the aforementioned judgment and acquitting them of the charge whereas Muhammad Arif Qureshi, the complainant and the state have also presented two counter appeals for enhancement of sentences recorded against convict- appellants under Section 364/201 & 34, APC and for awarding sentence to acquitted respondents Hamid Taufeeq and Taufeeq Qadir for abetting and facilitating the commission of offences. A reference has also been made by the trial Court for confirmation of the death sentence. All the above-mentioned appeals and reference are subject matter of this judgment.
29. Raja Muhammad Hanif Khan, the learned Counsel for the accused argued with vehemence that a false case has been registered against the accused to take away the property of convict- appellant, Abdul Rasheed Grista. The learned Counsel further contended that in the instant case no eyewitness is available and it is based upon the circumstantial evidence only. According to the learned Counsel, the prosecution produced recovery evidence to prove its case but it miserably failed. The learned Counsel agitated that all the recovery witnesses are closely related to the deceased or the complainant and supportive evidence does not find any corroboration from any independent source. The learned Counsel pointed out that the evidence of last seen, the evidence of taking into possession the vehicle used during the occurrence and the recovery of weapon of offence, the recovery of blood-stained insect killer, bed, mattress and Elmira etc could not be proved beyond any shadow of reasonable doubt. The learned Counsel stressed upon the point that the factum of recovery of box from river Jehlum and the evidence of the divers/recovery P.Ws and marginal witnesses cannot be relied upon because it was already known to them and the police that the box and other articles alongwith it have to be recovered from the river and they were already present at the spot. The learned Counsel agitated that the statements of P.Ws recorded under Section 164, Cr.P.C. cannot be relied upon because Khawaja Khurshid Ahmad, Tasaddiq Hussain, Muhammad Azeem and Abdul Waheed P.Ws remained detained in the instant case of murder and thereafter they were released on the promise to depose as prosecution witnesses. The learned Counsel also criticized the evidence of extra judicial confession and submitted that under Article 38 of Qanun-e-Shahadat Order any statement given before Police officer cannot be taken as extra judicial confession. The learned Counsel pressed into service the submission that the evidence of computer disk and the prints of telephone calls is not admissible because the prints of calls are Photostat documents. The learned Counsel maintained that the prosecution failed to prove motive setup by it; therefore, it adversely affects its case. The learned Counsel vigorously argued that the report of chemical examiner has not been tendered in the evidence; 'therefore, it cannot be taken into consideration. The learned Counsel finally submitted that the trial Court fell in grave error while convicting Abdul Rasheed Grista and Naser Ali accused; therefore, the impugned judgment may be set-aside to their extent. In support of his contentions, the learned Counsel cited plethora of authorities.
30. Kh. Ata-Ullah Chak, the learned Counsel appearing on behalf of Toufeeq Qadir and Hamid Toufeeq, acquitted-respondents, argued that an iota of evidence is not available on the record to implicate the accused-respondents in the commission of offence; therefore, the impugned judgment may be maintained to their extent.
31. Raja Gul Majeed Khan, the learned Counsel for the complainant controverted the arguments raised by the learned Counsel for the defence and submitted that the complainant had no grudge or ill will against the accused; therefore, he did not nominate any person as accused in his first report about his missing brother and on receiving information by Hanzoor Ahmad Shaikh and Bilal Qadri P.Ws, he lodged F.I.R against the accused-persons. The learned Counsel further contended that the recovery of box and other articles from the river is reliable evidence in view of Article 40 of Qanun- e-Shahadat Order, 1984 because the place of recovery was pointed by the accused, who also confessed the commission of offence. The learned Counsel maintained that the evidence of recovery witnesses cannot be ignored on the ground that the P.Ws were asked by Police to accompany the Police Party to the place of recovery. The learned Counsel pointed out that the recovery evidence also finds support from the evidence of I.O., who is as good witness as any other person. The learned Counsel maintained that each and every link of prosecution story has been amply proved and antimortem and postmortem injuries on the dead body reveal that the deceased was murdered in a brutal and atrocious manner; therefore, the minor discrepancies appearing in the prosecution evidence do not demolish the prosecution story. The extra judicial confession of the convict-appellants, the recovery of box in which dead body was packed alongwith blood-stained blanket, the recovery of dead body, the recovery of vehicles used during the occurrence, the recovery of mattress and Elmira and fresh painting of place of occurrence, the recovery of bloodstained insect killer and phone diary of the deceased, the recovery of weapon of offence, the injury report of convict Naser Ali, the recovery of computer disk of phone calls alongwith various items and the statements of the P.Ws recorded under Section 164, Cr:P.0 undoubtedly prove the commission of offence, argued by the learned Counsel. The learned Counsel pressed into service the submission that the motive setup by the prosecution, was amply proved by it because the P.Ws deposed that the accused-persons carried iron pillars to the disputed land for erection and tried to dig out the pitches, which were later on taken into possession by the Police but in this regard the statement of Hafeez-ur-Rehman P.W was not challenged in cross-examination, which stands admitted on the part of the defence. The learned Counsel agitated that the efforts to demolish the prosecution evidence were made in presence of acquitted respondents and in this manner they also abetted the commission of offence but the trial Court failed to appreciate the aforesaid aspect of the case and committed an illegality while acquitting them of the charge. The learned Counsel finally submitted that the sentence of the convict-appellants may be enhanced whereas the acquitted respondents may, also be sentenced in accordance with law. In support of the arguments, reliance was placed upon numerous authorities.
32. Manzoor Hussain Raja, the learned Asst.A.G appearing on behalf of the State fully owned and supported the arguments raised by the learned Counsel for the complainant.
33. We have very carefully taken into consideration the respective contentions of the learned Advocates for the parties, gone through the record and the case law cited.
34. The story of sad demise of Al-Haj Muhammad Ashraf Qureshi, deceased, starts on 24.07.2008 at 2:00 p.m. when Abdul Rasheed Grista, accused, called him on mobile phone to reach at upper Addah bus stand near Anayat Bakery where accused was already present with a car while the deceased was sitting on the shop of Manzoor Ahmed Shaikh. This fact stands supported by Manzoor Ahmad Shaikh (P.W.3). Later on the deceased was found by Bilal Ahmad Qadri (P.W.4) sitting on front seat of white Mehran Car, which was going towards CMH. The accused took away the deceased while riding him in aforesaid Car No. 8641-MN, which was taken into possession on 27.7.2008 (vide recovery memo. Fah 14) in presence of said Manzoor Ahmad (P.W.3) and Ghulam Jillani Zargar (P.W. 34).
35. Khawaja Khurshid (P.W.21) stated that on 23.7.2008 Abdul Rasheed accused asked him to handover his white Mehran Car No. 8641-IDN on 24.7.2008, which was sent to him through his driver Muhammad Azeem. He also testified that he got recorded his statement Exh PQ under Section 164, Cr.P.C.
36. Muhammad Azeem (P.W.25) deposed that he is performing his duties as a driver with Khawaja Khurshid (P.W.21) in PWD. He further stated that on 24.7.2008 on the instruction of Khawaja Khurshid P.W he went to the house of Abdul Rasheed accused at Jalalabad Garden where Abdul Rasheed accused sat on the front seat of the Car and two other persons on the backseat. On their instruction, he drove the car upto Kohala. On the way back home, the accused purchased drink dew, which was also taken by him. The accused Abdul Rasheed introduced the other persons as masons who were going for a visit. When the accused reached back home, he asked him to come back again at about 3:00 p.m. because he wanted to fetch a guest. After sometime, on the instruction of Khawaja Khurshid he again went to his house and found the accused alongwith his servant Abdul Waheed (P.W.26). On the way he stopped the Car and asked his servant to get some Rusks. Meanwhile, he made a telephonic call from his mobile and inquired about "Haji". After sometime, a person of medium stature came there whereupon accused left the front seat, got "Haji" mounted on the front seat and sat himself on the backseat. On the instruction of the accused, he again came back to Jalalabad and parked the vehicle on the gate. The accused invited him for a lunch but he refused. He further testified that he got recorded his statement Exh.P.W under Section 164, Cr.P.0 and also identified Naser Ali accused during the trial.
37. Mudassar Ahmad Shaikh (P.W.10) proprietor of a restaurant deposed that on 24.7.2008 at about 2:30 p.m. Abdul. Rasheed accused alongwith another person arrived at his restaurant situated in Jalalabad took their lunch and paid a bill of Rs. 190/-.
38. Muhammad Qadeer (P.W. 11) a waiter of the restaurant, also stated that on 24.7.2008 at about 2:30 p.m. Abdul Rasheed accused alongwith another person ordered him to fetch chicken fried rice with pulse and a bottle of nestle water, who took their lunch and paid him bill amounting Rs. 190/- alongwith extra Rs. 40/- as tip total Rs. 230/- and went away.
39. Muhammad Ashfaq S/O Ashraf (P.W.7) deposed that on 24.7.2008 at about 11/12:00 a.m., four persons came on his shop from Gujjar Kohala side and purchased four bottles of drinks and packets of cigarette from his shop situated at Shandarra curve.
40. Muhammad Aslam Awan S/O Muhammad Ismail (P.W.23) deposed that on telephonic call of Khawaja Masood P.W his friend, he sent his Vehicle No. 571-MDGA on 24.7.2008 at 4/5:00 p.m. for Abdul Rasheed Grista accused, which came back at 2:00 p.m. on 25.7.2008. He further stated that the aforementioned vehicle was taken into possession by police and he also got recorded his statement Exh PT under Section 164, Cr.P.C.
41. Khawaja Muhammad Masood (P.W.22) testified that on demand of Abdul Rasheed Grista accused, he asked Muhammad Aslam Awan P.W to send his vehicle to him on 24.07.2008 about 4/5:00 p.m. alongwith driver Tasaddiq Hussain (P.W.24).
42. Zaheer Ahmad (P.W.8) stated that in the evening of 24.7.2008 Abdul Rasheed Grista accused purchased a packet of cigarette from the shop of his brother.
43. Faheem-ul-Hassan Pirzada (P.W.5) deposed that Abdul Rasheed accused alongwith his driver riding on a Landrover arrived at his shop on 24.7.2008 at about 2:30 p.m. and purchased a box P/1 worth Rs. 1400/-. He also testified the bill book P/10 and identified the driver.
44. Muhammad Ilyas (P.W.16) and Naseer Ahmad (P.W.17), the painters, deposed that on 26.7.2008 they were working at the house of Muhammad Hanif, a neighbour of Abdul Rasheed accused who asked them to paint his room, whereupon they painted his room on payment of Rs. 500/-. During the job, they found accused Abdul Rasheed cleaning the Floor of the room with bleach powder with the help of his servant.
45. Basit Hussain, a sub-engineer (P.W.18) deposed that on the direction of EXN Building Division he went to the house of Abdul Rasheed accused situated at Jalalabad and found that the room was painted recently. He also testified his report Exh.PTT.
46. Tasaddiq Hussain driver (P.W.24) deposed that on 24.7.2008 at about 4:00 p.m. he took Vehicle No. MDGA-0571 to the house of Abdul Rasheed accused at Jalalabad on the instruction of his boss Khawaja Masood. Thereafter, he alongwith Abdul Rasheed accused and his servant went to bazaar and purchased a box worth Rs. 14,00/- and came back to the house of the accused. Abdul Rasheed accused sent him to the upper storey of the house and after half an hour of Maghrib prayers he asked him to proceed towards Rawalpindi. He found a box in boot of the vehicle and also loaded a blanket, clothes and two small cartons. At that time accused was accompanied by two persons amongst one is Naser All the three accused alongwith Waheed, the servant of Abdul Rasheed accused, boarded in the vehicle and handed over the blanket and clothes at washman's shop situated near P.M House. Abdul Waheed alighted from the vehicle. Thereafter, Abdul Rasheed accused sat on the front seat whereas two other persons on the backseat and proceeded towards Rawalpindi. On the instruction of Abdul Rasheed accused, he stopped the vehicle at Gujjar Kohala near Mill and unloaded the box from the boot. He also helped while unloading the box, which was about 1(1/2)/2 maunds. After that Abdul Rasheed accused asked him to leave for Rawalpindi. On 25.7.2008, at about 12:00 p.m. after coming back from Rawalpindi, Abdul Rasheed accused paid him Rs. 2000/- for diesel expenses. He parked the vehicle at Gojra Muzaffarabad and went back home. He also testified that he got recorded his statement Exh.PV under Section 164, Cr.P.C.
47. Muhammad Irfan (P.W.9) testified that Abdul Waheed servant of Abdul Rasheed Grista gave him a blanket for washing at that time four other persons were also sitting in the vehicle. Abdul Rasheed Grista asked him to wash the blanket in a proper manner.
48. Shahroom (P.W.12) stated that he is working with Raja Shaukat, a contractor of District Council at Kohala Bridge. On 24.7.2008 at about 10:00 p.m. when he was sitting with Mushtaq Ahmad Constable (P.W,13) in police post situated near Kohala Bridge, he found three persons coming from Gujjar Kohala side and passing near. them went towards the hotel. On inquiry, the elderly main told him that they were proceeding towards Rawalpindi riding on a Government vehicle but due to backache, they alighted from the vehicle and now want to go back to Muzaffarabad. The elderly person sat down with them whereas two other persons who were speaking Punjabi language went towards Kohala Bridge to bring a taxi, which was hired by Zaneef Abbasi driver (P.W.15) on payment of Rs. 900/-. All three persons, one Abdul Rasheed Grista who was sitting on chair and another Naser Ali who was wearing a tracksuit at that time, went towards Muzaffarabad riding on the taxi.
49. Mushtaq. Ahmad constable (P.W.13) fully corroborated the deposition of Shahroom P.W and stated that on 24.7.2008 he was, deputed on night duty. At about 10:00 p.m. three persons who were walking on foot arrived there from Gujjar Kohala side and went to a hotel nearby them, who thereafter hired a taxi and went towards near shrine of Sian Sahali Sarkar, whereas the third person alighted at Jalalabad, who paid him Rs. 900/- fare and went away. He also identified Abdul Rasheed Grista and Naser Ali accused during the trial.
50. Shaikh Manzoor Ahmad (P.W.3) stated that on 27.7.2008, he alongwith Ghulam Jillani (P.W.34) and Ghulam Nabi Zargar went to the Police Station where Abdul Rasheed Grista accused in presence of SHO confessed that he alongwith Naser and Sikandar accused murdered Ashraf Qureshi in his house by attacking upon him with a hammer. They wrapped the dead body in a blanket and after loading it in a Government Vehicle No. MDGA-571 threw it in the river Jehlum at Gujjar Kohala near Neelum Flour Mill and he can also identify the aforementioned place. Thereupon on 28.7.2008 at noontime the accused pointed out the place wherefrom he threw the box of dead body in the river.
51. At that time, he and Ghulam Jillani P.W were present. Thereafter, Mushtaq, Basharat and other divers started searching the dead body in the river Jehluni. Meanwhile, Naser Ali accused also arrived in Police van and pointed out the place mentioned above. He also confessed that he alongwith Sikandar and Abdul Rasheed Grista accused after killing him, packed the dead body in the box and threw it in the river Jehlum. During the search, the divers pulled out a box from the river alongwith a blood-stained blanket and a piece of cloth. He further deposed that on 27.7.2008 the police took into possession the Vehicle No. 8641-IDN of white colour from Narrul Stadium and another Government Vehicle No. MDGA-571 from upper Chhattar on the instance of the accused.
52. He also testified the recovery memos. Exh.PF, Exh.PG and Exh.PH.
53. Ghulam Jillani Zargar (P.W.34) fully supported the above mentioned statement of Shaikh Manzoor Ahmad P.W and further stated that on 29.7.2008 he alongwith Mahboob Ahmad Tariq (P.W.33) went to the police station where SHO received details of telephonic calls made by Abdul Rasheed Grista accused to Ashraf Qureshi on 22.7.2008 and 24.7.2008 respectively. He further stated that on 31.7.2008, during investigation the accused in presence of Mahboob Ahmad Tariq (P.W. 33) confessed that after murdering Ashraf Qureshi, he burnt his shirt, civil defence ID card, photo and other papers in his house near a wall. Thereupon, the ash of aforementioned articles, a burnt piece of civil defence card and two pieces of photograph were taken into possession.
54. Mahboob Ahmad Tariq (P.W.33) testified that on 27.7.2008 he went to City Police Station Muzaffarabad to know the whereabouts of Ashraf Qureshi deceased but the police party was ready to raid. Thereupon, he alongwith Mukhtar Qureshi while riding on his vehicle went to Jalalabad where the police arrested Abdul Rasheed accused and during his personal search a Nokia mobile phone with Jazz SIM was recovered which was opened and the police found another SIM of Telenor mobile company under the battery. They came back to the, Police Station where Abdul Rasheed accused confessed in presence of Mukhtar Qureshi (P.W.36) that he alongwith Naser and Sikandar murdered Ashraf Qureshi and he can point out the weapons of offence and other articles.
55. Thereafter, he alongwith Mukhtar Qureshi went to the house of accused wherefrom a blood- stained insect killer and phone diary of deceased having printed his photographs were recovered at the instance of the accused. After that a backside cover of Samsung mobile and its battery owned by deceased, broken by the accused was also taken into possession on the pointation of accused in presence of Mukhtar Ahmad from a deserted place of Jalalabad garden near grass shed. The accused also led to the recovery of a hammer with handle from the bushes situated near. The President House in his presence while Mukhtar Ahmad Qureshi also witnessed the recovery proceedings. Thereafter, the accused led to the recovery of blood-stained double bed, a mattress and an Elmira from the house of his cousin Kalsoom Pandat from Ghousia Mohallah upper Plate. He further stated that on 29.7.2008 he witnessedthe recovery of a letter sent by Mobilink Phone Company through SSP Muzaffarabad produced by Moharrar police station alongwith Ghulam Jillani Zargar. On 31.7.2008 at the time of Asar prayers he alongwith Ghulam Jillani went to police station where the police took away Abdul Rasheed accused to his house wherefrom near the wall of his house burnt card of civil defence, two pieces of ID card and ash of burnt papers were recovered.
56. Mukhtar Ahmad Qureshi (P.W.36) deposed that on 27.7.2008, he alongwith Mahboob Ahmad Tariq P.W went to the Police Station where he found police to raid. He along-with Mahboob Ahmad Tariq went to Jalalabad where on personal search of Abdul Rasheed Grista accused a black Nokia Mobile Telephone No. IME-358396 alongwith an active SIM of Mobilink No. 03012464617 and another SIM of Telenor No. 03432085580, which was found under the battery were taken into possession. On 28.7.2008, Abdul Rasheed Grista accused confessed that he alongwith Naser and Sikandar accused killed Ashraf Qureshi, packed his dead body in a box and threw it in the river from Kohala.
57. He also stated that he can identify the place wherefrom he alongwith other accused-persons threw the dead body and he can also identify the place of recovery of weapon of offence.
58. Thereupon, the accused led to the recovery of insect killer, telephone diary of deceased, backside cover of Samsung mobile with its battery, a hammer and double bed with mattress and an Elmira in presence of Mahboob Ahmad Tariq P.W. He fully supported the statement of Mahboob Ahmad Tariq (P.W.33).
59. Anser Mahmood (P.W.27) stated that the dead body of the deceased was recovered by the police in his presence from Dhangalli and was handed over to Arif Qureshi brother of the deceased vide receipt Exh.PE, which was also testified by Muhammad Irshad P.W. It may be stated here that the defence did not seriously challenge the recovery of dead body.
60. Muhammad Irshad Shaikh (P.W.28) deposed that the dead body of deceased was recovered from Dhangalli in presence of Anser Mahmood and Hafeez Qureshi P.Ws, which after postmortem was handed over to Arif Qureshi, brother of the deceased.
61. Sagheer Ahmad (P.W.29), Basharat (P.W.30), Muhammad Mushtaq (P.W.31) and Ashfaq Ahmad S/0 Fazl Hussain (P.W.32), divers, deposed that on 28.7.2008 they went to Gujjar Kohala where on the pointation of Abdul Rasheed Grista and Naser accused they recovered pieces of box P/1 and a blood-stained blanket P/2 from the river in presence of police and other persons.
62. Ghulam Abbas Patwari (P.W.37) testified that he prepared site-plan Exh.PZ alongwith keynotes and revenue record on the pointation of police.
63. Manzoor Hussain Shah head constable (P.W.38) and Muhammad Ashraf Khan (P.W.39) deposed that during investigation Faheem-ul-Hassan Pirzada P.W produced a sale book P/10 at Police Station on 31.7.2008 which was taken into possession in their presence. Muhammad Ashraf head constable further testified that recovery of copy of Report No. 30/2007 of Daily Register of City Police Station Muzaffarabad about disappearance of the deceased.
64. Muhammad Sayaf ASI (P.W.40) stated that parcels 1, 2 & 3 were handed over to him by SHO, which were placed in Malkhana after due care and caution.
65. Amjad Shah constable (P.W.41) deposed that he was deputed by DSP to hand over three letters to Director IB Islamabad, which were given to him and thereafter he was given a CD P/14, which he handed over to DSP.
66. Dr. Naseer Ahmad Shaikh (P.W.44) testified the postmortem report Exh.PAAA and medical examination report of Naser Ali accused Exh.PBBB.
67. Sohail Azam SDM (P.W.45) deposed that he recorded the statements of P.Ws Kh. Muhammad Khurshid, Kh. Muhammad Masood, Muhammad Aslam Awan, Tasaddiq Hussain, Muhammad Azeem and Abdul Waheed Exh.PQ, Exh.PS, Exh.PT, Exh.PV, Exh.PW and Exh.PX under Section 164, Cr.P.C.
68. He further testified that the bed P/16 alongwith pieces P-16/1 and P-16/II were sealed under his supervision.
69. Kh. Tariq Iqbal (P.W.35) and Shaikh Mati-ur-Rehman P.W deposed that in March 2008 accused Abdul Rasheed Grista in presence of Naser accused sent pillars P-11/1 to P-11/6 on the disputed place for erection alongwith masons and labourers in absence of the deceased but Riaz Khan (P.W.20) a labourer of deceased called Hafeez-ur-Rehman Qureshi (P.W.19) brother of the deceased and on his intervention, they could not complete the task. The aforementioned pillars were later on recovered in their presence.
70. Riaz Khan (P.W.20) stated that for the last 15/20 years he has been working with the deceased as an employee on the disputed property owned by accused party, which was in possession of the deceased. In March 2008, the accused-persons started digging pits whereupon he contacted Hafeez-ur-Rehman Qureshi P.W, who intervened and forbade Abdul Rasheed Grista and his mason Naser Ali accused whereupon they left the pillars on the disputed property after extending threats of dire consequences.
71. Hafeez-ur-Rehman Qureshi (P.W.19) testified that he and his deceased brother Al-Haj Ashraf Qureshi have been running business of wood together on the land of the accused party for the last 18/20 years. In March 2008, on information of Riaz Khan, his employee, he arrived at the spot where he found all accused-persons except Sikandar alongwith laborers who were digging the pitches.
72. He forbade them but they refused to do so and threatened him that they will dispossess him and the deceased. Later on, the accused party left the pillars and went away.
73. Muhammad Yaseen Constable P.W. stated that he took away the parcels about Articles 2, 5, 8 & 16 to Chemical Examiner Lahore on 6.8.2008 and brought the same back on 9.8.2008.
74. Malik Muhammad Farooq SI (P.W.46) deposed that on 28.7.2008 Kamran Ali ASP handed over Naser Ali accused to him at Alibaig Police Station. He brought the accused and reached Gujjar Kohala Muzaffarabad near Gillani Flour Mills at about 12:30.p.m. where Naser accused confessed before Muhammad Riaz Mughal SHO that he along with Abdul Rasheed Grista and Sikandar accused murdered the deceased and after packing his dead body in a box threw it in the river. He also identified the place wherefrom the dead body was thrown in the river Jehlum. He further stated that on 31.7.2008 Mirza Shaukat Hayat SHO Dudyal informed him about the presence of dead body in the river near Dhangalli. On 1.8.2008, he in presence of Anser Mahmood and Irshad Ahmad Shaikh P.Ws. recovered the dead body from the river. He also prepared inquest report Exh.PMM, injury form Exh.PNN and site-plan of the place wherefrom the dead body was recovered. He brought the dead body to Muzaffarabad and handed over to Dr. Naseer Ahmad Shaikh P.W. for postmortem. After autopsy the dead body was handed over to the heirs of the deceased vide receipt Exh.PE. On 2.8.2008, he arrested Taufeeq Qadir accused and recovered his passport alongwith ticket during his personal search. He further testified that on 11.8.2008 Amjad Shah Constable produced CD P/14 alongwith the prints of telephone call P/15, which was taken into possession by Muhammad Yaseen Baig DSP in his presence alongwith Muhammad Ashraf Khan head constable. He also deposed that the copies of Daily Register were also taken into possession by DSP in his presence alongwith Muhammad Ashraf constable.
75. Raja Nasrullah Khan (P.W.48) stated that he supervised the investigation proceedings and recommended the accused-persons to be challaned before the trial Court.
76. Muhammad Yaseen Baig DSP (P.W.47) deposed that during the investigation, he recovered article a burnt civil defence card alongwith photograph and its ash P/3. He also prepared a parcel of blood-stained pieces of double bed P/16, 16-1,16-2 in presence of SDM (P.W.45). He also recovered sale book P/10, CD P/14 and telephone call prints P/15, iron pillars"P/II-1 to P/II-6 from disputed plot and a passport from Taufeeq accused. He also got prepared site-plan from Patwari alongwith revenue record. He further recovered Register Roznamcha about missing of the deceased. He obtained a certificate of whitewash vide letter Exh.PDD. According to his investigation, accused Abdul Rasheed Grista, Naser Ali and Sikandar in consultation and abetment of other accused- persons murdered the deceased and threw his dead body in the river from Kohala.
77. Muhammad Riaz Mughal SI/SHO (P.W.49) deposed that a report of Mafqood-ul-Khabri {{URDU TEXT}} of deceased was filed on 24.7.2008 at City Police Station Muzaffarabad whereupon he started investigation and took into possession all the incriminating articles. He further stated that Abdul Rasheed Grista and Naser accused confessed that on account of the disputed plot, they with Sikandar accused hatched a conspiracy, murdered Muhammad Ashraf Qureshi in his house at Jalalabad, packed, his dead body in a box and threw it in the river from Gujjar Kohala near Flour Mill. He testified whole of the prosecution story and recoveries made at the instance of the accused-persons. According to his investigation, all the offences were proved against the accused-persons; therefore, he prepared the challan and filed before the trial Court.
78. A close scrutiny of the above mentioned evidence reveals that prosecution has proved its story beyond any shadow of reasonable doubt. The circumstantial pieces of evidence coupled with extra judicial retracted confession of both the convict-appellants excludes all reasonable hypothesis of their innocence who even did not appear as their own witness in disproof of charge as required under Section 340 (2), Cr.P.C. despite opportunity for the purpose afforded to them by the trial Court. In such state of affairs, it has been proved without any shadow of reasonable doubt that accused, Abdul Rasheed Grista hired murderers Naser Ali and Sikandar from Sara-e-Alamgir, District Gujarat, with a promise to pay them huge amount in order to do away with the life of Al-Haj Ashraf Qureshi for obtaining expensive disputed plot, which was rented to the deceased and his brother on nominal rent for many years. Abdul Rasheed Grista, accused, contacted the deceased on telephone and took him to his house situated at Jalalabad where hired murderers were already present. All of them launched an attack upon the deceased with a hammer, killed him and broke his body into pieces so that it could easily be packed in the box, which was already purchased by Abdul Rasheed Grista from the bazaar. During the occurrence, the deceased resisted due to which Naser Ali, accused, sustained a human denture bite on his finger, which has also been proved by medical examination report Exh.PBBB. Thereafter, they (accused) loaded the dead body in a Landrover No. 571-MDGA borrowed from Kh. Masood (P.W.22). All the accused alongwith Tasaddiq driver (P.W.24) took away the box of dead body towards Rawalpindi, unloaded the box at Gujjar Kohala near Gillani Flour Mill and threw it in river Jehlum, which was later on recovered from the said river near Dhangalli, Dudyal District Mirpur. During the trial, all incriminating articles of various pieces of circumstantial evidence were duly proved by the aforementioned P.Ws. In this manner, every link of the chain of circumstances is so cogent, coherent, solid and strong, which leaves no option for us except to believe the prosecution version.
79. As Jar as the objections raised by the learned Counsel for the defence are concerned, do not render any help to his case. For instance, the learned Counsel has challenged the factum of recoveries on the ground that all the marginal witnesses are closely related to the complainant and they have mostly been visiting the Police Station, and in spite of the presence of locals, they were not associated with the recovery proceedings. Furthermore, when the witnesses already knew the place of recovery then such type of recovery evidence cannot be relied upon. In this regard, the learned Counsel cited certain authorities but these have small applicability to the facts of the instant case. For instance: In Muhammad Afzal's case (1983 SCMR 1), the gun was recovered from a Haveli, which was jointly owned by the brothers of the accused who had also joint cultivation. Moreover, amongst two witnesses one was not produced at the trial and other was not only real uncle of the deceased but was also animus to the accused because of the registration of a murder case against him whereby the accused was helper of the complainant party.
80. In Muhammad Tasneem' s case (1985 SCMR 160), the hostility between the parties was admitted on the record and the trial Court mainly relied upon the evidence of P.Ws whose name had not been mentioned in the F.I.R.
81. On the other hand, in the instant case the box and the bloodstained blanket wherein the dead body was wrapped and packed were recovered from river Jehlum Gujjar Kohala near Gillani Flour Mill situated at a distance of about 37km away from City Police Station Muzaffarabad. In this view of the matter, it was never known to the witnesses that recovered articles were present in the river waiting for them. As far as the other objection about relationship of the witnesses with the complainant is concerned, is also devoid of any force because in Niaz Ahmad's case (2008 SCR 326) recovery of gun was relied upon which was witnessed by a brother of the deceased and SHO.
82. It was also opined that even a single witness could prove the recovery.
83. In Abdul Rashid & 3 others' case (2001 SCR 240) it was laid down at page 251 of the report in the following manner: "The reasoning given by the Shariat Court that the recoveries of empties and gun were not witnessed by independent witnesses of locality and as such the same cannot be considered against the accused-respondent is also not correct. It has been held in a number of cases that strict compliance of Section 103, Cr.P.C, is not necessary in case of recoveries or seizure memos. made by the Police. Similarly, mere relationship of the witnesses of the recovery memos. is not a ground to reject their testimony dubbing the same as doubtful."
84. In Muhammad Akram's case (2006 SCMR 1567) the recovery of Bugda, a weapon of offence, was relied upon which was attested by the father of the deceased as a recovery witness. It was also laid down that even if his evidence is to be excluded from consideration, the statement of SI was sufficient to prove the recovery of above-mentioned weapon of offence.
85. Now we advert to another objection raised by the learned Counsel for the defence about extra judicial confession of the accused-persons whereby it is submitted that the witnesses deposing about extra judicial confession of the accused-persons are also closely related to the complainant; therefore, it cannot be taken into consideration. Furthermore, it is a weak type of evidence, which, cannot be made basis for conviction. In this respect, reliance was placed on the following authorities: In Tahir Javaid & another's case (PLJ 2009 SC 669) the extra judicial confession was not relied upon because after six days of the aforesaid confession the accused were arrested although they were present in the village and moreover in pursuance of the confession even the place of occurrence, where the deceased was murdered, was not pointed out by any of the accused-persons.
86. Therefore, in the absence of any corroboratory evidence the extra judicial confession was not used against the accused.
87. In Muhammad Kamran and another's case (2003 SCMR 1070) F.I.R was lodged after recovery of the dead body on the pointation of accused but the fact of extra judicial confession of the accused was not mentioned in the F.bR. Moreover, according to P.Ws, the real suspect was not accused but somebody else.
88. In Rasab Khan's case (2003 SCMR 1385), the only evidence against the accused was his retracted extra-judicial confession but old enmity existed between the accused and the prosecution witnesses. The Police neither recovered the dead body of two deceased minors nor any other incriminating piece of evidence during the investigation at the behest of the accused; therefore, the accused was acquitted of the charge in the circumstances of the case.
89. In Wazir Muhammad and another's case (2005 SCMR 277), the extra judicial confession of the accused was not found convincing because he did not admit the murder of taxi driver but only stated that he alongwith other accused deboarded taxi driver from taxi and after tying him near the Railway Line they threw him on the grass and proceeded back towards Peshawar.
90. On the contrary, it was contended on behalf of the complainant that both the accused not only confessed the offence of murder but they also led to the recovery of numerous incriminating articles including weapon of offence, the belongings of the deceased and the place wherefrom they threw the dead body into the river. The learned Counsel for the complainant referred to us Article 40 of The Qanun-e-Shahadat Order, 1984 and also relied upon the case law being referred in the next part of the judgment.
91. For elucidating the matter it would be expedient to reproduce here Article 40 of Qanun-e- Shahadat Order, 1984 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 of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
92. It is manifest from the perusal of above Article that it lays down an exception to the rule that a confession made by an accused-person: whilst he is in custody shall be excluded from evidence and permits the admission of such a confession under the conditions mentioned in it. It postulates that if a fact is discovered during the investigation and information is given by an accused which later on is found true can be given in evidence. (AIR 1955 SC 104). Thus, where the accused pointed out place of occurrence when he was taken to the house reflected in the Mashirnama of the place of the Wardat and proved by P.W, the aforesaid fact has been proved in terms of Article 40 of Qanun-e-Shahadat Order, 1984. (1985 PCr.LJ 609 DB).
93. If an accused makes a statement to the Police while he is in custody that he has concealed or kept the property in such and such a place and then the property is so found, then that statement would become admissible and provides unambiguous evidence of his guilt. (AIR 1923 ALL.352).
94. The same view was affirmed in a case titled Shaukat Hayat and another v. The State (1990 PCr.LJ 217 DB). It would be beneficial to reproduce the relevant observations, which are as follows: "It was contended by Mr. Azizullah Shaikh learned Counsel appearing for the appellant that mere pointing out of the place from where some articles are taken out or produced will not incriminate the appellant unless there is some statement made before the actual discovery as envisaged by Article 40 of Qanoone-Shahadat. In support of his contention the learned Counsel has relied upon the case of Allah Ditta v. The State PLD 1958 (W.P) Pesh. 1 wherein it was held that: 'The A.S.I, does not disclose the exact circumstances under which the appellant was brought to the scene of occurrence nor does his statement give any indication as to what the appellant meant when he simply pointed out his finger to this bush. The omission becomes almost important when we find that the articles were not buried underground or carefully concealed but were simply 'lying in the bush'. There is no cavil with the above proposition but in the present case the evidence of Inspector Muhammad Khan shows that the arrested accused Shaukat Hayat during the course of interrogation led the police party to the National Highway. There from the bushes standing in the neighborhood of Mehran Petrol Pump of P.B.S. he took out blood-stained clothes and pair of blood- stained sandals and produced the same before police on 8.2.1987. He secured and sealed the same under the Mashirnama Exh.15. He has 'further deposed that 'on the same day the accused Shaukat Hayat while in custody, volunteered to produce the incriminating weapon. He led the police party to his flat situated in Regency Apartments, Gulshan-e-Iqbal, Block No. 4, from where he produced a strap Pistol No. 812005 made in Spain alongwith a black holster and six live bullets thereof. I secured the same under a Mashimama in presence of Mashirs Rustam Ali and Zafar Khan under Exh.16'. The above evidence of Inspector Muhammad Khan clearly shows that it was not a case of simple pointing out a place but the appellant had also made a statement, which had led to discovery and, therefore, the contention of Mr. Azizullah Shaikh is untenable.
95. It has been held in a case reported as Syed Kabir Hussain Shah Vs. State (PLD 1984 SC (AJK) 82) that the evidence of such witnesses of recovery memos. who were told by Police, the previous night to accompany the Police on the following day to the place of recovery would not render their evidence unreliable. It has been further opined that when remains of dead body have to be recovered at instance of accused at a considerable distance from place of occurrence, which is never possible for I.O. to find out witnesses of locality during the recovery proceedings. In such type of cases, the statement of P.Ws though not residents of the area of recovery is trustworthy. It has also been observed that when pieces of dead body have to be recovered from a far-flung area, such type of recovery could not be possible without information given by the. accused to the Police. The aforesaid authority repels all objections raised by the learned Counsel for the defense.
96. In case titled Peruaiz Masih Vs. State (PLJ 2006 FSC 11) , the following principle has been enunciated at Page 14 of the report as under:-- "It may be noted here that as per Article 38 of the Qanun-eShahadat Order, 1984 (hereinafter referred to as the Order') no confession made to Police Officer can be proved against an accused of any offence whereas, Article 38 provides that, subject to Article 40, no confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall be proved against him. Article 40 of the Order, which is an exception, to the rules contained in Articles 38 and 39 of the Order, provides that when any fact is deposed to as discovered in consequence of the information received from a person accused of any offence, in the custody of Police, so much of such information, whether it amounts to a confession or not, as it relates distinctly to the fact thereby discovered, may be proved. Normally, Article 4 0 is pressed into service when recovery of any incriminating article, or dead body of the deceased in case of murder, is recovered by the Police Officer at the instance of an accused and in consequence of the information received from him which, at times, may tantamount to confession as well, but if nothing is pursuance of the information so received is recovered or the information, received is not connected with the recovery made, then such information whether it amounts to confession or not would not be inadmissible. Though, it has to be, keeping in view circumstances of each case, decided by a Court as to what portion of the statement of a witness is admissible and no hard and fast rule can, in this regard, be laid yet, it can be safely concluded that if no "fact" in consequence of the information received from the accused is discovered then statement of the witness would not, to that extent, be admissible because what is allowed to be proved under Section 40 of the Order is the information received by a Police Officer or any part thereof which relates distinctly to the fact thereby discovered. Meaning thereby that Police Officer is not allowed to place on record merely the fact of his having received same information but the information must relate to the discovery of the "fact". In other wards the information so received must directly connects the accused with the object recovered. "
97. It needs to be emphasized here that Basharat (P.W.30), Muhammad Mushtaq (P.W.31) and Ashfaq Ahmad (P.W.32) are independent witnesses in whose presence both the convict-appellants Abdul Rasheed Grista and Nasir Ali confessed the commission of offence and also deposed that after packing the dead body in a box, they threw it into river from Gujar Kohala. All the prosecution witnesses, except Nos. 2, 3, 33, 34, 35 & 36, are independent witnesses, who have no interest with the prosecution. Similarly, the aforementioned related witnesses do not nurse any grudge or rancor against the accused-persons to falsely implicate them in the commission of heinous offence like murder. The prosecution witnesses were also found `Adil' during purgation.
98. The learned Counsel laid great stress upon the point that the motive as setup by the prosecution could not be established; therefore, the prosecution has also failed in establishing that the incident occurred in the manner alleged by it. It is further argued that motive is double-edged weapon, which cuts both the ways, as it may be sufficient reason for commission of the offence by the accused, it can equally serve a reason for false involvement of the accused in the crime. At the first instance, it has to be ascertained as to whether the motive setup by the prosecution could be proved if not, it adversely affects the case of prosecution.
99. Suffice to say, it has been amply proved by the evidence of Hafeez-ur-Rehman (P.W.19), Riaz Khan (P.W.20), Kh. Tariq Iqbal (P.W.35) and Shaikh Mati-ur-Rehman P.W that in March 2008, the accused- persons arrived at the disputed place and measured the same but on intervention of Hafeez-ur- Rehman P.W they went away and again after some days started digging the pitches for installation of iron pillars, thereupon Riaz Khan called Hafeez-ur-Rehman again but the accused party enraged and extended threats for dire consequence. The accused, Naser Ali, a mason, also accompanied them to install iron pillars. The Police later on took into possession the aforementioned iron pillars.
100. The aforesaid fact fully proves the motive that the accused party was bent upon to get the disputed plot vacated at any cost, which was in the possession of the deceased for the last many years.
101. It may be mentioned here that it is not always necessary for the prosecution to prove adequate motive for the commission of offence because motive should not necessarily be strong.
102. The following classical observation was made by Campbell C.J in his address to the jury in Reg. V.
103. Palmer quoted in Wills' Cri. Ev. 6 Edn. 63-4.
104. "We know from experience of criminal Courts that atrocious crimes are committed due to very slight motives, not merely from impulse or revenge but to gain a small pecuniary advantage and to drive off for a time-pressing difficulties."
105. Moreover, it depends upon person to person because sometime an accused commits a grave crime for the most inadequate motive, what one man might ignore or suffer, might impel another to murder; therefore, absence of proof of adequate motive is not fatal to the prosecution even in a case based solely on circumstantial evidence provided the circumstances otherwise establish the guilt of the accused.
106. It is pertinent to note here that motive is not the only source from which intention could be gathered rather it can also be gathered from conduct of the accused during the commission of crime i.e. from the type of weapon used, part of victim's body selected for infliction of inju and the force with which injury was inflicted. (1991 PCr.LJ 1535 DB).
107. It has been observed in Saeed Akhtar and others' case (2000 SCMR 383) that insufficiency of motive would not be a bar for imposition of normal penalty of death where murder is proved.
108. It has been opined in Saeed and 2 others' case (2003 SCMR 747) that the weakness and insufficiency of motive or absence of motive cannot be considered as a mitigating circumstance for lesser penalty but in the instant case, as held above, the motive is neither obscure nor shrouded in mystery, which has been fully proved by the prosecution.
109. It may be mentioned here that the complainant never nominated the accused-persons in his first report Exh.PA about missing of his deceased brother. The complainant, the real brother of the deceased would be interested to secure the punishment of the actual culprit and not falsely implicate an innocent person in place of the real perpetrator of a crime.
110. It was also craved by the learned Counsel for the defense that the statements of Khawaja Khurshid (P.W.21), Tasaddiq Hussain driver (P.W. 24), Muhammad Azeem driver (P.W.25) and Abdul Hameed (P.W.26) a servant of Abdul Rasheed Grista recorded under Section 164, Cr.P.C. are not admissible on the ground that an opportunity of cross-examination was not provided to the accused.
111. Furthermore, the aforesaid witnesses were detained in Police custody and they deposed against the accused-persons on promise of setting them free by the Police.
112. A close scrutiny of the evidence of aforesaid witnesses, as discussed above, shows that the P.Ws voluntarily got recorded their statements in the trial Court. For instance, Tasaddiq Hussain driver (P.W.24) refuted the suggestions put by the defence in the following manner: {{URDU TEXT}} Similarly, Muhammad Azeem driver (P.W.25) also refuted the suggestions as under:-- {{URDU TEXT}} Khawaja Khurshid (P.W.21) testified in the following manner-- {{URDU TEXT} It further transpires from the above mentioned deposition that the learned Counsel for the prosecution submitted before the trial Court for re-examination of P.W for seeking an explanation about the aforesaid position but it was denied to the prosecution.
113. Similarly, Abdul Waheed (P.W.26) fully supported the prosecution story in his examination-in-chief but gave certain concessions to the defence while in cross-examination but in spite of the request of the prosecution, his re-examination was also not allowed.
114. It will not be out of place to point out that though the witnesses Kh. Khurshid and Abdul Waheed testified in the manner mentioned above about the statements recorded under Section 164, Cr.P.C. but they did not belie the statements recorded by the trial Court. Therefore, even if the statements of P.Ws recorded under Section 164, Cr.P.C. are discarded on the ground that an opportunity of cross-examination was not provided to the accused-persons, the above mentioned statements recorded by the trial Court fully support the prosecution story, especially of Tasaddiq Hussain driver (P.W.24) and Muhammad Azeem driver (P.W.25), who happen to be independent witnesses. The contention of the learned Counsel for the defence is also devoid of any force that the detention of the P.Ws makes their testimony doubtful and unreliable. It will be relevant to mention that the instant case is of blind murder and the P.Ws have been associated with the accused-persons during the occurrence; therefore, it was not possible for Investigation Officer to trace the occurrence except making an interrogation and investigation from P.Ws; thus, their detention in the Police custody cannot be made basis to discard their evidence, which otherwise rings true.
115. Now the question arises as to whether the evidence of CD and prints of calls is admissible and can be taken into consideration against the accused-persons as a piece of corroboratory circumstance. The perusal of the recovery memo. Exh.PL shows that during the personal search of Abdul Rasheed Grista, accused, his mobile telephone of Nokia Company black colour having SIM No. 03012464617 and a SIM of Telenor Company No. 03432085580 were taken into possession, whereas the report about missing of the deceased Exh.PA shows a Mobile Phone No. 03005166048 of deceased.
116. The recovery of CD P/14 taken into possession through recovery memo. Exh.PQQ has been proved on the record, whereas the perusal of prints of telephonic calls P/15 annexed with the file shows that Abdul Rasheed Grista, accused made a telephonic call to .Al-Haj Ashraf Qureshi, deceased, on 22.7.2008 at 11:07 and thereafter also made two telephonic calls on 24.7.2008 at 13:34 p.m. and 14:09 p.m. respectively, which further prove the contact between Abdul Rasheed Grista, accused and the deceased at relevant time on the day of occurrence. Similarly, the prints of calls P/15 also prove the fact that Abdul Rasheed Grista, accused, had constant contact with Nasir Ali, accused prior to the occurrence, on the day of occurrence and after the occurrence. He also contacted Tasaddiq driver on the day of occurrence and on the next day i.e. 25.7.2008. We, therefore, find little force in this argument of the learned Counsel for the defence that the evidence of CD and prints of calls cannot be taken into consideration against accused-persons.
117. It is by now settled position of law that the evidence available on the record though modern devises or techniques as computer can be allowed and used in the evidence under Article 164, Cr.P.0 Qanun-e-Shahadat Order, 1984. (PLJ 2002 Lahore 159 DB). Similarly, audio, video recorded cassettes, CDs are admissible piece of evidence about the information contained in the aforementioned electronic documents. (PLD 2007 Karachi 448).
118. A critical analysis of the prosecution evidence and the case law leads us to an irresistible conclusion that all three accused-persons Abdul Rashid Grista, Naser Ali and Sikandar assembled and an agreement was made amongst them to get rid of deceased in order to take over the possession of the disputed plot. Abdul Rasheed Grista promised to pay handsome money to Naser Ali and Sikandar accused who agreed to carry out the plan of murder. All three accused-persons actually and physically participated in the commission of offence with prior concert in pursuance of prearranged plan; therefore, each of such accused is liable for the act as if he perpetrated it alone. In such kind of cases, the moral culpability of each accused is clear and identical. Thus, in an organized crime whereby the murderers were hired from Pakistan, the Courts are duty bound to eliminate such criminal minded people from the society; therefore, following the famous principle of vicarious liability that those who stand together, must fall together, none of the accused can be allowed to raise a plea that he was merely present at the place of occurrence or that the part assigned to him was insignificant. No plausible explanation in defence has been offered by the accused. The mere denial of charge would not stand them in good stead without any cogent evidence in defence. It is natural that an innocent person feels no hesitation to prove his innocence and can create a reasonable doubt to the correctness of charge against him but in. the present case the act of the convicts is so ghastly and their conduct is so barbaric that no one entered the witness box to plead their innocence or false involvement.
119. It is evident from the facts and circumstances mentioned above that convict-appellants alongwith Sikandar accused (not before us) not only murdered Al-Haj Ashraf Qureshi in a gruesome and brutal manner but also broke his dead body into pieces with a hammer so that it may be deformed and could easily be packed in the box. Thereafter,, they threw it into the river front Gujjar Kohala, which was later on discovered from the river Jehlum in vicinity of village Dhangalli Dudyal.
120. The learned trial Court has very carefully evaluated the prosecution evidence and has correctly reached the conclusion finding convict-appellants guilty; therefore, we don't find any extenuating circumstances, which can be said to mitigate the enormity of the crime. On this account, the normal sentence which must be passed in case of a cold-blooded murder is that of death, is not only reasonable and befitting in circumstances of the case but it is also in the public interest.
121. As far as the case of Hamid Taufeeq and Taufeeq Qadir is concerned, an iota of evidence has not been brought of record to implicate them in the commission of offence; therefore, we are not persuaded to Interfere in the impugned judgment to their extent, which is sustained.
122. The nutshell of above discussion is that the conviction and sentence awarded to Abdul Rasheed Grista and Naser Ali convict-appellants by the trial Court are, therefore, maintained and all three Appeals stand dismissed. Consequently, the reference made by the trial Court is answered in affirmative. The death sentence is confirmed. The copies of the judgment shall be annexed with the relevant files.