' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Tariq Masih alias Badshah son of Chanan Masih, caste Christian, resident of Asif Town No,2, Ferozepure Road, Lahore, appellant along with Muhammad Riaz, co-accused (died during the trial proceedings), was involved in case F.I.R. No,366, dated 27-9- 2002, offence under sections 302, 364, 201, 34, P.P.C. Lodged at Police Station Liaquat Abad, Lahore, and was tried by Mr. Moqurab Khan, learned Additional Sessions Judge, Lahore.
' The learned trial court seized with the matter in terms of judgment dated 12-9-2005 convicted the appellant under section 302(b), P.P.C., and sentenced him to imprisonment for life with direction to pay Rs,1,00,000 as compensation to the legal heirs of Muhammad Khalid deceased.
2. Being aggrieved by the judgment of the learned trial court, the appellant impugned the same through filing Criminal Appeal No,1669 of 2005 and being dissatisfied with the quantum of sentence inflicted upon the appellant, Piyara Masih complainant filed Criminal Revision No,1013 of 2005 seeking enhancement in his sentence. As both the matters are arising out of one judgment of the learned trial court thereby deciding the same F.I.R., therefore, these are being disposed of through single judgment.
3. The prosecution story, as alleged in the F.I.R. (Exh.PU) lodged on the complaint (Exh.PG) of Piyara Masih complainant (P W.6) son of Fauju Masih is that he along with his family members is residing at Bahar Colony, House No,135/5 opposite 60-5, Model Town Extension, Lahore and labourer by profession. Khalid Masih son of the complainant aged about 34/45 years was a contractor and prior to 10/12 years of the occurrence, having developed brotherly/family relations, he was residing with Sakeena Bibi wife of Chanan Masih and. Rafaqat, Liaquat and Tariq alias Badshah sons of Chanan Masih and used to visit their home twice a day. Khalid Masih son of the complainant had purchased a plot in Asif Town and also built house thereupon where Sakeena Bibi wife of Chanan Masih and her sons Tariq alias Badshah, Liaquat and wife of Tariq alias Badshah namely Surraya Bibi were also residing. Sakeena Bibi and her son. Tariq alias Badshah had promised that they would either vacate the house on 1-9-2002 or make the payment of its price, however, instead of vacating the house, in consultation/connivance with each other, they conspired with bad intention inter se. Tariq alias Badshah asked Khalid to proceed to Jarranwala in connection with work and on 8-8-2002, Tariq alias Badshah and Liaquat visited the house of the complainant. Arif Masih son of Chhabiga Masih, caste Masih, resident of Ramka Khooh, Police Station Manga Mandi, Lahore and Allah Bakhsh Nadeem son of Ujagar Masih, caste Masih, resident of E-96/4, Model Colony No,2, Walton Lahore, who were also masons by profession, had come to the house of the complainant and in their presence Tariq etc. Asked Khalid that they were ready to proceed to Jarranwala. On leaving the house while riding on Motorcycle No,LRC/8261, in the presence of Arif and Allah Bakhsh Nadeem, Khalid Masih told the complainant that he along with Tariq alias Badshah and Liaquat was going to Jarranwala in connection with labour work. When after 20/25 days, Khalid son of the complainant did not establish any contact at his house, the complainant became worried and when he reached the house of Tariq to inquire about the whereabouts of Khalid where Sakeena Bibi mother of Tariq and his wife Surraya Bibi told that they had gone to Jarranwala in connection with labour work. On the same day the complainant met with Tariq alias Badshah and asked him about Khalid, who told that Khalid was at Jarranwala. On his return the complainant stayed at Chaudhry Hotel, Youhana Abad Stop for the purpose of taking tea, where he saw that motorcycle of his son bearing Registration No,LRC/8261 was standing. When the complainant asked owner of the hotel namely Chaudhry Muhammad Naeem about the motorcycle, he replied that he had purchased the motorcycle from Tariq alias Badshah against a consideration of Rs,14,000. The complainant, at once, reached the house of Tariq alias Badshah where his brother Rafaqat met him, who asked the complainant to come on next day and on the next morning he found Rafaqat and Tariq alias Badshah present there. Rafaqat said to Tariq alias Badshah to seek two days time from the complainant and they would bring Khalid at Lahore. The complainant came back to his house and on the next day he saw that at his gate one shopper was hanging containing two pictures and one letter. Those pictures were procured while forcing Khalid to stand with Surraya Bibi wife of Tariq alias Badshah and children of Rafaqat. When the complainant along with pictures and letter rushed towards the house of Tariq alias Badshah, all of them had vanished from there. The complainant had suspicion that all these persons in order to occupy the possession of plot/house of Khalid and to usurp its_price had kidnapped Khalid to commit his murder and in the occurrence Sakeena Bibi wife of Chanan Masih and her sons Rafaqat Masih son of Chanan Masih, Tariq alias Badshah and his wife Surraya, Surraya wife of Rafaqat Masih, Liaquat Masih and their father Chanan Masih were also involved.
4. After registration of case the investigation was entrusted to Muhammad Jamil, S.-I. (P.W.10), who on 27-9-2002 inspected the place of occurrence, recorded the statements of the prosecution witnesses under section 161, Cr.P.C. And also prepared rough site plan of the place of occurrence (Exh.PR). The complainant produced two pictures (P-1 and P-2) and letter (P-3) before the Investigating Officer, which were taken into possession vide recovery memo Exh.PH. Thereafter, the complainant made supplementary statement thereby nominating Muhammad Riaz (since dead) as one of the accused. The Investigating Officer conducted certain raids to effect arrest of the accused, however, could not succeed. Subsequently, after adopting all legal procedure, the Investigating Officer in the company of complainant and other prosecution witnesses conducted raid at Kamalia and arrested Riaz and Tariq Masih accused persons. After making disclosure, the accused persons by way of digging the courtyard of house of Muhammad Riaz with kissi and sapples got recovered dead body of Khalid Masih. The Investigating Officer had also arranged video of recovery proceedings. He prepared the recovery memo (Exh.PJ), two inquest reports (Exh.P.5 and Exh.PT). The Investigating Officer further took Kassi (P-5) and supple (P-6) into possession vide recovery memo Exh.PM and also prepared Fard Shanakhat (Exh.PK). Accused Muhammad Riaz got recovered clothes of deceased shalwar (P-16) and shirt (P-17) along with shoes (P-18), which were taken into possession vide recovery memo Exh.PQ. The accused further got recovered 5 photos (P-7 to P-12), which the Investigating Officer took into possession vide recovery memo Exh.PN. Muhammad Ashraf cameraman produced before the Investigating Officer video film (P-4), which was taken into possession by the Investigating Officer vide recovery memo.
Exh.PL. Thereafter the Investigating Officer handed over the dead 'body of Khalid Masih deceased to Munir Ahmed 10235/C to mortuary for postmortem examination. Muhammad Naeem (P.W.11) told the Investigating Officer that accused Tariq Masih had sold him motorcycle of deceased against the consideration of Rs,14,000, which was secured by the Investigating Officer. After the postmortem examination last worn clothes of the deceased comprising shalwar (P-13) and qameez (P-14) were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PP. Hamed-ud-Din Chishti (P.W.5) after preparing scaled site plan produced before the Investigating Officer, which was made part of the file as Exh.PF and Exh.PF/1. On 1-10- 2002, the Investigating Officer got their physical remand and the course of interrogation, the appellant and co-accused volunteered to get recorded their confessional statements, who were produced before Mr. Ghulam Dastgir, Judicial Magistrate (P.W.4) and their statements under section 164, Cr.P.C. Were accordingly recorded.
5. During the course of investigation, the Investigating Officer found the appellant and his co- accused Muhammad Riaz (since dead) guilty and submitted report under, section 173, Cr.P.C, to the court of competent jurisdiction, which was enrouted through Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned Additional Sessions Judge, Lahore, vide order dated 17-5-2004; formally charge-sheeted the appellant to which he pleaded not guilty and claimed trial.
Prosecution in order to substantiate its case produced as many as eleven prosecution witnesses. It is pertinent to mention here that Muhammad Riaz accused died during the course of trial proceedings.
6. Piyara Masih father of deceased Khalid Masih, is the complainant (P.W.6) of the case. Munir Ahmed 10235/C (P. W.1) had associated the investigation during the recovery of dead body. The accused had got recorded their statements under section 164, Cr.P.C. Before Mr. Ghulam Dastgir, Judicial Magistrate (P.W.4). Hamid ud Din Chishti (P.W.5) had prepared scaled site plan of the place of occurrence.
' Muhammad Jameel, SI (P.W.10) is the Investigating Officer of the case. Dr. Khalid Hussain, Demonstrator, King Edward Medical University, Lahore had conducted the postmortem examination upon the dead body of deceased and observed as under:-- "It was the dead body (skeletnized) presented in a wooden coffin covered by multi-coloured sheet and clad in white shalwar kameez and white bunyan. Clothes were dirty and wet, foul smelling. Soft tissues and organs systems were not identifiable. Tissues were converted into thick paste like pinkish material in which bones were lying. Skin was present at some parts on the back and both the feet. The presented specimen was skeleton which on morphological and anatomical examination revealed it to be of a human. Bones were soiled with pinkish material.
' All the soft tissues of the abdomen, chest were putrefied and unidentifiable. Material from the chest and abdominal area were sent to the Chemical Examiner, Government of the Punjab, Lahore as mentioned on Page-I."
' After the postmortem examination, the doctor rendered the following opinion:- "The body was in advanced stage of putrefactions. Soft tissues findings were not ilicitible. No evidence of bone trauma was found. Soft tissues from abdomen and chest were sent to the Chemical Examiner along with 1/2 of femur to detect any drug/poison and its role in the cause of death if any. Morphological appearance of skeleton conformed to a human male with estimated age of 25/30 years."
' Statements of rest of the prosecution witnesses are formal in nature.
7. Vide statement recorded on 6-10-2004, the learned DDA gave up Ghulam Dastgir C/6260 being unnecessary. On 7-6-2005, in addition to giving up Muhammad Ashraf P.W. Being dead, the learned DDA further gave up George Masih and Arif Masih P.Ws. Being unnecessary. Vide separate statements recorded' on 31-5-2005 and 21-7-2005, the learned DDA gave up Arif Masih and Safdar, ASI, P.Ws., respectively again being unnecessary.
8. The appellant was also examined under section 342, Cr.P.C. Wherein he neither opted to appear under section 340(2), Cr.P.C. As witnesses of his own to disprove the allegations levelled against him nor opted to leave defence evidence. In response to the question why the case is against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "I have no concern with this occurrence I purchased a plot in Asif Town No,2 about which the complainant insisted me to return the plot as complainant's son Khalid Masih (deceased) had also invested some amount in this plot, when deceased Khalid Masih never said any such thing nor he had any concern with the plot. The complainant intentionally involved me and my family members in this occurrence, so that complainant may usurp the plot and the complainant with the help of police, after my arrest, forcibly took over the possession of the plot. I was not present at the time of occurrence at place of occurrence, and has no knowledge about the alleged occurrence Muhammad Riaz co-accused who was already acquainted of Khalid Masih. I do not know when Khalid Masih deceased went to Kamalia and when the alleged occurrence took place. I am innocent and has no concern with this occurrence."
9. After hearing the arguments advanced by the prosecution as well as defence while evaluating the evidence available on record, the learned trial court found the version of the prosecution proved beyond any shadow of doubt against the appellant, resulting into his conviction in the above stated terms.
10. Learned counsel while addressing the case on behalf of the appellant argued that there is a delay of about 50 days in lodging the F.I.R. And the prosecution badly failed to render, any plausible explanation in this regard. Learned counsel further argued that the prosecution evidence against the appellant rests upon last seen evidence and judicial confession, which is lacking corroboration from an independent source. It was next argued that nevertheless Piyara Masih (P.W.6) and Allah.
Bakhsh Nadeem (P.W.8) had seen the deceased in the company of the appellant on 8-8-2002, however, why they made statements in this regard on 27-9-2002 i,e, after a delay of one month and twenty days is a question finding no answer from the record. It was vehemently argued that Piyara Masih (P.W.6) happens to be father of the deceased and his delayed statement before the police is not only open to questions rather squarely creates dents in the prosecution version.
Learned counsel further urged that although the prosecution attempted to make it a case of administering poison/tranquilizer, however, according to the opinion of Dr. Khalid Hussain (P.W.6), the cause of death remained unascertained. It was further contended on behalf of the appellant that even there is nothing on the record in clear words in the statement of either of the prosecution witness that on the pointing out of the appellant, the dead body was recovered especially when the place of recovery of dead body is the room of house of co-accused Muhammad Riaz (since dead). Learned counsel vehemently contended that judicial confession allegedly made by the appellant is of no importance to the prosecution because admittedly as per prosecution own version the appellant was arrested on 28-9-2002 and dead body was recovered on his pointing out, however, the confessional statement was recorded on 14-10-2002. Learned counsel further stated that admittedly the complainant knocked the door of law when on 26-9-2002 he had seen Muhammad Nadeem (P.W.11) with the motorcycle owned by the deceased, however, no recovery memo was got exhibited during the course of trial to establish that the same was taken into possession. Learned counsel further contended that motive put forth by the prosecution was not forceful and even not a single piece of evidence was brought on record to supplement the stance and the same was rightly disbelieved by the learned trial court. Learned counsel for the appellant next contended that there is no direct or circumstantial evidence available on record to connect the appellant with the commission of offence. It was also agued that the testimony of the prosecution witnesses is shaky based upon conjectures and surmises. In this backdrop, learned counsel for the appellant submitted that while relying upon such shaky evidence, the learned trial Court was not justified in convicting the appellant and as such he deserves to his clean acquittal from the charge. While arguing Criminal Revision No,1013 of 2005 filed by the complainant, learned counsel on behalf of the appellant stated that in view of lack of sufficient direct/corroborative evidence, no case is made out against the appellant, hence the sentence inflicted upon the appellant has no substance and there is also no question of its enhancement, therefore, the criminal revision petition is liable to be dismissed.
11. Contrarily, learned Law Officer assisted by learned counsel for the complainant vehemently opposed the contentions raised on behalf of the appellant. It was contended that the prosecution through leading unbiased, cogent and confidence-inspiring evidence proved its case against the appellant, therefore, the learned trial court was well justified in passing conviction against him. The delay in the crime report, it was urged by the learned Law Officer, in the peculiar circumstances of the case, was natural. Learned counsel for the complainant submitted that the last seen evidence remained unrebutted by the appellant as not a single suggestion was put to any of the prosecution witnesses contrary to prosecution version. It was further argued on behalf of the complainant that the deceased was having amicable relations with the family of the appellant and due to this reason he was taken to Kamalia. Learned counsel for the complainant next contended that it is a case of destruction of prosecution evidence. He further added that recovery of clothes and shoes of the deceased fully link the appellant with the commission of offence. It was next argued that the defence could not bring an iota of evidence on the record to establish that why the appellant was involved in the case falsely or substituted on account of previous enmity/animosity. Moreover, the learned trial court while taking note of each and every aspect rightly convicted the appellant and no exception can be made to the well-reasoned judgment of the learned trial Court. To substantiate his case learned counsel for the complainant placed reliance on the case of Fazal Rehman and others v. The State and others (PLD 2004 SC 250).
' While arguing Criminal Revision No,1013 of 2005, learned counsel for the complainant argued that as the prosecution fully proved its Case against the appellant to the hilt, therefore, he is entitled to normal sentence of death provided under the statute.
12. Arguments advanced pro and contra has been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor-General.
13. In the instant case certain aspects of the prosecution (case are admitted. There is no denial to this fact that the occurrence is unseen. Undeniably the deceased son of the complainant left his house on 8-8-2002 allegedly in the company of the appellant in the presence of complainant and- Muhammad Naeem (P. W.11), however, astonishingly the matter was firstly reported to the police on 27-9-2002 after a delay of more than one and a half month and there is nothing on the record convincing this Court to believe that due to unavoidable circumstances, the complainant did not report the matter to the police and it was on 26-9-2002 when having seen the motorcycle of the deceased parked at the hotel of Muhammad Naeem (P.W.11), the complainant came to know that it was sold to him by the appellant and thereafter he made efforts to bring the law into motion.
14. To link the accused/appellant with the occurrence the prosecution led three types of evidence.
Firstly the last seen, secondly judicial confession and thirdly the recovery of dead body allegedly effected from the house of Muhammad. Riaz co-accused (since dead) on the pointing out of the appellant and clothes as well as shoes of the deceased.
' On the statement made by Piyara Masih complainant/(P.W.6), the F.I.R. Was lodged on 28-9-2002.
The stance of the complainant qua last seen was supplemented by Allah Bakhsh Nadeem (P.W.8).
However, astonishingly both the prosecution witnesses of last seen remained mum for such a considerable time. Credibility of a witness becomes highly suspicious if his statement -Under section 161, Cr.P.C. Is recorded With an inordinate delay without affording any plausible explanation thereto. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Khan v. Maula Bakhsh (1998 SCM R 570). Moreover, according to the prosecution version the appellant and his co-accused were taken into custody on the same day and on the alleged disclosure of the appellant the Investigating Officer got recovered the dead body from inside the room of house owned by Muhammad Riaz (since dead). The careful scrutiny of the record reveals that it is nowhere specifically mentioned that it was the appellant on whose pointing out the dead body was recovered. Moreover, although it is the prosecution case that the appellant and his co-accused after administering poison to the deceased through milk buried him alive, however, Dr. Khalid Hussain (P.W.3), who conducted autopsy upon the dead body of deceased rendered the following opinion (Exh.PB/1) on the postmortem examination report (Exh.
PB): -- "In the light of absence of posture autopsy findings due to advanced stage of putrefaction and negative Chemical Examiner report, the cause of death remains unascertained."
In this backdrop the better resource for the prosecution was to opt for Deoxyribonucleic Acid Test as in this scientific era when the same is available with the investigating agency, its outcome is of much importance, which strengthens/weakens the prosecution case, however, as far as the instant case is concerned, reasons best known to the investigating agency that was not conducted and as such the identification of the dead body was kept in vacuum.
15. The second set of evidence adduced by the prosecution is in the shape of confessional statement made by the appellant before Mr. Ghulam Dastgir, learned Special Judicial Magistrate (P.W.4), however, admittedly the appellant was taken into custody on 28-9-2002 and his statement under section 164, Cr.P.C. Was recorded on 14-10-2002. This fact alone shatters the prosecution version especially when on the alleged disclosure of appellant and his co-accused, the Investigating Officer had recovered dead body of the deceased on 28-9-2002 then what hurdle was with the appellant to delay his confessional statement till sixteen days. In the. Dictum of law laid down in the case of Khalid Javed and another v. The State (2003 SCM R 1419), it has been held as under:- "... Statement recorded after a considerable delay from the date of arrest without offering any explanation for not producing the accused before the Magistrate as early as could be possible would create a doubt on its voluntariness."
"..Similar view was affirmed in the case of Muhammad Pervez and others v. The State (2007 SCM R 670).
Even otherwise when delayed confessional statement is juxtaposed with the findings of the doctor reproduced above, it squarely creates irreparable dents in the prosecution story.
16. Recovery of clothes and shoes of the deceased are not incriminating material to connect the accused/appellant with the commission of offence as these were made after almost two months of the occurrence. In the case of Sarfraz Khan v. The State and 2 others (1996 SCM R 188), the august Supreme Court of Pakistan had disbelieved the recovery of articles (belonging of the deceased) made after sixteen days after the occurrence.
17. It goes without saying that the whole prosecution case is based upon circumstantial evidence. It is settled principle of law that to base conviction on circumstantial evidence there should be interlinking chain of credible and cogent corroborative evidence available on the record, which needless to mention is totally missing in this case. I am fortified in ,my view by dictum of law of the august Supreme Court of Pakistan in the case of Karamat Hussain v. The State (1972 SCM R 15).
18. So far as case-law cited by learned counsel for the complainant is concerned, needless to mention that it is cordial principle of law that each criminal case has its own peculiar features and no hard and fast rule or criteria for general application can be laid down in this respect. Respectful reliance is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Haji Muhammad Nazir and others v. The State (2008 SCM R 807), The State v. Muhammad Yaqoob and others (2001 SCM R 308) and Imtiaz Ahmed v. The State (2001 SCM R 1334). Moreover, the case-law referred by learned counsel for the complainant pertains to direct ocular account.
19. Upshot of my above discussion is that the evidence adduced by the prosecution does not contain sufficient incriminating material, which could be made basis for any accused on capital charge as admittedly the matter was reported to the police after a delay of 1 month and 20 days without plausible explanation, belated recording of statements of the prosecution witnesses of last seen especially when complainant happens to be father of the deceased, the unproved cause of death of Khalid Masih deceased contrary to prosecution version and the delay in making confessional statement, which was recorded after 16 days of arrest of the appellant are circumstances, which squarely create doubt/suspicion in the authenticity of the prosecution story.
It is established principle of law that the benefit of every doubt is to be resolved in favour of the accused. Therefore, while adopting the principle of abundant caution that the Court should let off 100 guilty should not convict one innocent person, Criminal Appeal No,1669 of 2005 is accepted in toto. Conviction and sentence recorded in the judgment of the learned trial Court passed on 12-9- 2005 is set at naught. Consequently Tariq Masih alias Badshah, appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case.
20. So far as Criminal Revision No,1013 of 2005 filed by Piyara Masih complainant seeking enhancement in sentence inflicted upon the appellant is concerned, for the aforestated reasons, the same has no substance, which is accordingly dismissed.