Dost Muhammad Khan, J.--At a trial, held by learned Additional Sessions Judge-V, Kohat, appellant Syed Muatasim Wasti alias Momi was handed down sentence of death. He was also directed to pay Rs, 1,00,000/- as compensation under Section-544-A Cr.PC to the legal heirs of the deceased or in default thereof to suffer six months S.I. The appellant has questioned his conviction and sentence through the instant appeal while Syed Haider Abbass, the complainant, has filed Criminal Revision Petition No, 165/2008 seeking enhancement of compensation amount. He has also filed Criminal Appeal No, 506/2008 against acquitted accused Mujeeb Shah, seeking his conviction on charges under Section-302/34 PPC while the trial Judge has sent Murder Reference for confirmation of death sentence of appellant Syed Muatasim Wasti alias Momi. As evidence in all these petitions is the same, charge against accused is the same and all have arisen out of the same judgment, therefore, this single judgment shall decide all these petitions.
Arguments heard in considerable details and record/evidence perused with extra care and caution.
2. According to the story of prosecution, on 04.04.2007, at about 14.55 hours, the dead body of Syed Muhammad Yasir Abbass, bearing two fire-arm bullet wounds, was found inside a car by the side of the road in Phase-II, Kohat Development Authority Housing Scheme. Unfolding the story in the report lodged at the spot, the complainant Syed Haider Abbass (PW-3) alleged that a short while ago he was called on phone by the appellant that the deceased was going to commit suicide and was present in the KDA Scheme. Getting alert, he took the appellant and other relatives and rushed to the crime spot, where he found the deceased inside the car, in a pool of blood. The complainant called rescue-15, however, an ASI Mazhar Jehan of KDA (PW-1) reached there, to whom the incident was reported. However, he charged Amir Mehmood and Khalid Mehmood for the murder of his brother. The motive for the crime was shown that both the accused were indebted to the deceased, however, they were avoiding the payment.
3. On the murasila report EX PA/1, case FIR No, 154 was registered in Police Station Jangal Khel, Kohat, at 15.55 hours.
Within no time after the investigation commenced, the charge was directed towards the appellant and acquitted "co-accused, namely, Mujeeb Shah. To lay a foundation for the same, Amjad All (PW-8) was introduced, who had told the complainant that the deceased was last seen with the appellant and acquitted co-accused at Noontime while crossing the M.P Check Post. The PW was on duty and the car was bearing no entry sticker on its wind screen thus was stopped and checked and he saw the deceased and the two accused and then allowed them to pass through the Cantonment area. This witness later on admitted close friendship with the deceased and the complainant both.
4. During spot inspection, the car Ex P-1, two empties of .30 bore Ex P-2, a pistol of .30 bore Ex P-4 with three live rounds Ex P-5 and a magazine containing five live rounds Ex P-3 were secured therefrom through various recovery memos.
5. After about three days of the occurrence, the complainant recorded his supplementary statement and charged the appellant along-with Mujeeb Shah, the acquitted co-accused, but on the basis of suspicion as it was the appellant, who broke the news that the deceased was going to commit suicide thus, the suspicion fell on the suspected one.
After many days, the complainant applied to the Provincial Chief of Police and further investigation was entrusted to the Inspector of Crimes Branch, who procured another witness, namely, Muhammad Ayaz (PW-7) who claimed to have last seen the deceased in the company of the appellant near/around the spot. This witness was procured and examined after about 45 days with no explanation much less a plausible one.
The police also arranged a tracker dog, which was brought to the spot, taken inside the crime car and from that exercise it was concluded that the appellant was with the deceased at the fateful time, however, neither the Master/Trainer of the dog was examined nor proper report to that effect was prepared and brought on record. What is the legal worth of this piece of evidence would be dealt with in the latter part of the judgment.
6. The case set up at the trial, is that the appellant and the deceased both were running Rent-a- Car business as partners and -in that course, the appellant became indebted to the deceased, who intended to eliminate him to get rid of the un-discharged debt liability.
7. At the trial, the complainant deposed that do the fateful day at about 01.25 p.m., he received phone call from the appellant telling him that the deceased was going to commit suicide and also disclosed the place, where the deceased was present. He did not take it serious, because the marriage of deceased was to take place in a week time and there was nothing serious giving him such an impulse to finish his own life. The complainant stated that he made attempts to contact his deceased brother, but received no response. He again contacted the appellant to solicit further explanation, but the latter repeated the same story. However, added that the deceased was having a money dispute with Khalid and Amir Mehmood, who were not returning huge amount of money to the deceased. The complainant then told the appellant to stay in the Rent-a-Car Shop run by the deceased and him both and that he/complainant was coming there. From the shop, the complainant, the appellant and the acquitted accused went to KDA Scheme Phase-II and reached the crime spot, where the complainant saw the deceased lying dead in the car. He also saw a pistol in the right hand of the deceased, then he asked the appellant that the deceased was possessing no pistol then how and from where it came, the later replied that if it was bearing No, 4949 then it was the pistol purchased by the deceased on that very day. On close examination, the same number was detected on its grip base. He further alleged that it was the appellant, who misguided him wrongly charging the two acquitted accused nominated in the FIR.
8. The complainant further deposed that, in the evening, he was at home when PW Amjad of Military Police Service, came there and told him that his deceased brother was seen by him in a car with two other persons while crossing M.P Check Post at about 12.30 hours. The PW checked the car as it was not bearing entry sticker. On the driver seat was the appellant, on the front seat was Yasir Abbass while, Mujeeb Shah, the acquitted accused was occupying the rear seat. As Yasir Abbass deceased was well known to the PW, on whose behest he embarrassed the two inmates of the car for a while and then let them. From this narration, the complainant got satisfied that it was the appellant, who had killed the deceased alongwith Mujeeb Shah, however, he recorded his statement under Section-164 Cr.PC to this effect after three days.
9. In cross-examination, he stated that accused Khalid Mehmood and Amir Mehmood charged in the FIR were innocent, however, admitted that he had received the entire amount outstanding against the two, which was mentioned in the report. He denied the defence suggestion that in fact it was a blood money and not the debt amount. He also admitted that Shujaat accused was neither charged in the FIR nor in the statement given by him under section-164 Cr.PC. He did not know about the amount, the appellant was had to pay back to the deceased.
10.The complainant has made glaring admission that his deceased brother and cousin, namely, Razi-ul-Hussain were Contractors of M.P Canteen and used to visit the same in the company of the appellant.
11.As the present case has been structured exclusively on circumstantial evidence, therefore, the same requires careful perusal to see as to whether all links in chain have been provided by the prosecution or there are missing links in the same. How the evidence was procured at different stages and in what matter the investigation was conducted.
12.According to the Medical Officer, the deceased has sustained two fire-arm entry wounds, one on the left side of skull and the other on the left posterior chest lateral side.
The size of the last entry wound is 1/4 x 1/4" while its exit is 1" x 1", in our view the Medical Officer has mistaken the entry wound for the exit and indeed the exit was the entry wound. In any case the locale of it shown in the pictorial may be construed either way.
13.The investigating agency was considerably geared up to procure witnesses and fabricate evidence at different successive stages and towards that end even tracker dog was procured to track to go in pursuit and detect the culprits, this exercise was carried out in legal vacuum, because neither proper report was prepared to that effect nor the master/trainer of the dog was examined as to how the dog was imparted skill and training to detect crimes and criminals in a particular case, therefore, this piece of evidence on that ground alone is discarded and kept aside.
More so, when the law of evidence does not accept such evidence.
14.The entire edifice of the prosecution case is based on three major circumstances, firstly that it was the appellant, who allegedly rang up the complainant and disclosed that the deceased was going to commit suicide, secondly, that the deceased was last seen with the appellant and co- accused while crossing M.P Check Post by Amjad (PW-8) at 12.30 Noon time who had voluntarily gone to the house of the complainant for becoming a witness, however, the complainant charged the appellant three days later in his statement under Section-164 Cr.PC and thirdly that both the entry wounds were not bearing charring marks, therefore, it was not the case of suicide, but the appellant was the real culprit keeping in view his pre and post event conduct and because the motive for the crime regarding outstanding amount, which the appellant was not ready to pay back.
15.So far as the first plea is concerned, in this regard the conversation which took place between the complainant and the appellant must have been preserved in the recording office of the Cellular Company, but that was not obtained nor its transcript was prepared and produced at the trial to prove as to what nature of conversation took place between the two to get the first clue, hence, this piece of evidence is insufficient and being legally defective, therefore, no adverse inference could draw against the appellant on that score.
16.The complainant has squarely admitted that his deceased brother and cousin were running a Canteen in the M.P Unit, where Amjad (PW-8) was posted and used to visit the Canteen for refreshment, therefore, there is strong probability that the complainant and the PW both had developed strong intimacy with each other more so when the appellant and the deceased both were well known to him then what was the fun in stopping the car. The story so tailored, in our view, was an attempt albeit a fallacious one, to establish that the car was stopped and the inmates were identified by the PW, because from a fast running car it was not possible. This very fact suggests and points toward a design for procuring and fabricating of evidence.
17.This PW even did not charge the appellant in his statement under Section-161 Cr.PC, however, he made dishonest improvement at the trial by stating that after some time deceased Yasir Abbass came back in a White Colour Motorcar from the Cantonment area, drove away towards KDA Scheme, however, he was chased/followed by a black colour car, in which three persons were sitting. He was confronted on this point with his previous statement however, he collapsed by admitting that he did not state this fact to the police. He made glaring admission that the deceased and his friends/colleagues used to visit the Canteen and sit for tea with him. The appellant was the business partner of the deceased thus, in all probabilities he must be known to him by name but omitted to nominate him in his statement before the police. He also admitted that the deceased, the complainant and he himself belong to the same area and sect. What is the distance between the M.P Check Post and the crime spot, has not been given, which is another begging question in the prosecution case receiving no plausible answer, therefore, creating nexus between the crime, the crime spot and the appellant equally becomes a begging question.
18.The next point that due to absence of charring marks on the two entry wounds found on the deceased, would give rise to an inference that it was not a case of suicide rather the deceased was done to death is, in our view, in the first instance, is founded on very week premises thus, is not of that much of legal worth sufficient enough to record conviction thereon, on a capital charge. The Medicolegal Jurists have given a consistent view that in cases of pistol shots the charring marks on entry wounds ranges from 6" up to 9" at the most, therefore, the absence of charring marks on the two entry wounds is not such a strong point to infuse life into the weakest case of the prosecution.
19.The dishonesty in the investigation exudes through the holes of the structure of the case, because Muhammad Ayaz (PW-7) was procured, after 45 clays. He has deposed that for collecting tax from Trucks/Tractors loaded with pebbles and sands, he was present near the spot on the fateful day and time and heard a fire shot and then saw the appellant present there. He further deposed that he was reluctant to appear on the scene but after one and half month, his conscience constrained him to divulge the truth, however, for very cogent reasons and due to shocking delay in recording his statement with the fallacious explanation given by him, his testimony was rightly discarded by the trial Court. We have restated and reproduced his version for the object to point out the dishonesty committed in the course of investigation conducted by the police.
It is a bedrock principle of criminal justice that to convict a person on a capital charge, the evidence must come from unimpeachable source, which is not the case in hand. Reference in this regard may be made to the principle laid down in the case of Jahanir Hayat us. The State (PLD 1999 Lahore 285-DB).
20.In the system of criminal justice, drawing presumption about guilt of an accused in the absence of legal proof has never been acknowledged by the Courts. To condemn an accused to death through a judicial verdict, there must be strong and legally acceptable evidence leading the Court to a definite conclusion about his guilt, otherwise, a single doubt if found reasonable, would entitle him to acquittal not as a matter of grace, but as a matter of right. This principle, well embedded in the system, has been conveniently ignored by the trial Court while making appraisal of the evidence rather it has unreasonably stretched each and every piece of evidence in favour of the prosecution giving unusual and wrong meaning to the same, which exercise led it to a patently wrong conclusion. In our view, because of the tricks played by the prosecution, the trial Court was deliberately misled.
21.The Erstwhile Federal Court in the case of Fazal Elahi VS. The Crown has laid down the following principles: "A mere concurrence of circumstances some or all of which are supported by defective or inadequate evidence, is apt to create a specious appearance, which is calculated to lead to fallacious inference. Hence, the necessity of accepting as the basis of inference only such circumstances as are well authenticated. Where, there are indications of .design in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference. Where the Courts below had overlooked certain essential principles applicable to scrutiny of the proof adduced and to the drawing of inferences in cases resting exclusively on circumstantial evidence, held, that this had resulted in failure of justice (PLD 1953 FC 214)."
22. In the case of Lejzor VS. The Queen, the privy counsel while dealing with the circumstantial evidence had laid down the following principles: "Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined if only because evidence of this kind may be fabricated in order to cast suspicion on another.
Joseph commanded the steward of his house; put my cup, the silver cup, in the sack's mouth of the youngest. When the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it. It is also necessary before drawing the inference if the accused's guilt from circumstantial evidence to be, sure that there are no other co-existing circumstances which would weaken or destroy the inference. (PC) PLD 1952 PC 119 23.Even the Hon'ble Apex Court in the cases of Ch. Barkat Ali vs. Major Karam Elahi Zia and another (1992 SCMR 1047) and Sarfraz Khan vs. State etc (PLJ 1996 SC 467) has held that for recording conviction on the basis of circumstantial evidence involving a capital sentence, each piece/link shall make one chain an unbroken one so that, one end touches the dead body and the other the neck of the accused otherwise, it would be of no legal worth to be relied upon.
24.In view of the nature of evidence adduced at the trial, the dishonest improvements made by the PWs at trial stage, the dishonest investigation conducted by the police by procuring witnesses and fabricating evidence and when many links in the chain are missing, therefore, the prosecution has miserably failed to establish the guilt of the appellant beyond reasonable doubt, however, unfortunately, the learned trial Judge neither observed judicial care and caution nor followed the above cardinal principles of justice while making appraisal of the evidence, hence, the conviction and sentence awarded to the appellant are not maintainable.
Accordingly, this appeal is allowed. The conviction and death sentence of the appellant awarded to him by the learned trial Judge vide impugned judgment dated 27.11.2008 under Section 302/34 PPC are hereby set aside and he is acquitted of all the charges levelled against him. He be let free forthwith if not required in any other case while Murder Reference No, 24 of 2008 sent by the trial Court is not confirmed and answered in the negative.
As the appeal of the appellant has been accepted, therefore, Criminal Revision Petition No, 165/2008 has become infructuous and is dismissed.
Similarly, as the appeal of the convict, the principal accused has been allowed, therefore, there is no probability of convicting the acquitted co-accused, namely, Mujeeb Shah, hence, Criminal Appeal No, 506/2008 filed against his acquittal fails and is dismissed.
These are the detail reasons for our short order of even date.