Amir Feroz son of Feroz Khan, caste Pathan, resident of Dhoke Rahat Khan Dakhli Chabb, Police Station, Injra, District Attock was involved in case FIR No, 7, dated 31.01.2007, offence under Section 302, PPC, registered with Police Station Injra, District Attock and was tried by, learned Additional Sessions Judge, Attack. The learned trial Court seized with the matter in terms of judgment dated 24.09.2008, convicted the appellant under Section 302(b), PPC, and sentenced to imprisonment for life as Ta'zir with direction to pay Rs, 1,00,000/- as compensation to the legal heirs of deceased under Section 544-A, Cr.P.C. and in case of non-payment thereof, to further undergo six months S.I.
Benefit of Section 382-B, Cr.P.C. was extended- in favour of the appellant.
2. Being aggrieved by the judgment of the learned trial Court, the appellant impugned the same through filing Crl. Appeal No, 275/2008 whereas being dissatisfied with the quantum of sentence inflicted upon the appellant, Gul Amir Khan complainant filed Crl. Revision No, 113/2008 seeking enhancement in his sentence. As both these matters are arising out of one judgment of the learned trial Court thereby deciding the same FIR, therefore, these are being disposed of through single judgment.
3. The prosecution story, as alleged in the FIR (Exh.PD/1), lodged on the 'complaint (Exh.PD) of Gul Amir Khan complainant/(PW13) is that he is resident of village Chhab and has two sons and three daughters. The son of the complainant namely Hafiz Mehboob-urRehman was studying in 10th class in Alnoor Public School Jhamat. On 26.01.2007 son of the complainant Hafiz Mehboob-ur- Rehman left home for school. On the same day, his neighbour Aitbar Khan received telephonic call on his PTCL Number 2624527 from Cell # 0306-5283303 and he told that he was speaking Hafiz Mehboob-ur-Rehman and requested the neighbour of the complainant to inform his family that he was going to GoIra Sharif and would return after two days. When after two days the son of the complainant did not return, he started search for him and reached Chabb railway crossing. The watchman of the railway cross while returning the books of son of the complainant told him that on 26.01.2007 his son Mehboob-ur-Rehman had went while leaving his books with him. The complainant and his other family members had been in search of son of the complainant. On 31.01.2007 complainant with his son Habib Ullah reached at railway tunnel at 5:00 p.m. and saw the dead body of Mehboob-ur-Rehman lying on the right side of the railway track within the tunnel.
The complainant with the help of his son Habib Ullah Khan brought the dead body of Mehboob-ur- Rehman out of the tunnel whereupon Maskin Khan son of Muhammad Ali and other people gathered over there. The complainant observed a fire shot injury on the backside of head of his Mehboob-ur-Rehman (deceased). The complainant brought the dead body of his son to Civil Hospital Jand. The complainant got lodged the crime report against unknown accused person.
On the same day i,e, 31.01.2007, the complainant made a supplementary statement with the averments that on 26.01.2007 his son Hafiz Mehboob-ur-Rehman while going to school took mobile phone Sony Ericson having black body for procuring sim and he also took his ID card with him. The complainant stated that neither mobile phone set nor his I.D. card was recovered from the dead body of his son and the same were found missing. A few days prior, a quarrel of his son had taken place with Amir Feroz son of Feroz Khan and the complainant raised suspicion that he had committed murder of his son.
4. After recording of supplementary statement, Muhammad Sher, S.I. (PW-14)/Investigating Officer on 31.01.2007 on receipt of information and discovery of the dead body proceeded to Civil Hospital Jand where Gul Amir Khan (PW-13) made his statement which was reduced into writing by the Investigating Officer and read over to the complainant and in token of correctness of the same, the complainant signed Exh.PD and thereafter the Investigating Officer examined dead body and prepared injury statement Exh.PF and inquest report Exh.PG. Rab Nawaz 863/C got conducted postmortem examination of the dead body of Hafiz Mehboob-ur-Rehman. After the postmortem examination Rab Nawaz 863/C handed over last worn clothes of the deceased comprising shalwar P.1, qamiz P.2, bunian P.3, string P.4 alongwith relevant papers and a sealed phial which were taken into possession by the Investigating Officer through recovery memo. Exh.PA. The Investigating Officer recorded supplementary statement of the complainant and statements of the witnesses.
On 01.02.2007, the Investigating Officer inspected the place of occurrence, secured blood stained earth, made the same into sealed parcel and took into possession through recovery memo. Exh.PH attested by the PWs. The Investigating Officer also took into possession One empty of pistol .30 bore through recovery memo. Exh.PJ and recorded statements of the PWs. The Investigating Officer also drafted rough site plan of place of recovery of dead body Exh.PM, and the case property was handed over to Moharrir for' safe custody and then Investigating Officer started search for accused. On 07.02.2007 the Investigating Officer arrested the accused and from his personal search ID card of the deceased (P.5), mobile set (P.6) were recovered which the Investigating Officer took into possession through recovery memo. Exh,PB. During investigation, the accused got recovered pistol .30 bore (P.7) alongwith three live bullets P.7/1-3. Pistol was taken into possession after sealing the same alongwith live bullets through recovery memo. Exh.PC. and the Investigating Officer drafted rough site plan of, the place of occurrence Exh.PN. On 07.02.2007 the complainant identified mobile set and ID card to be belonging to the deceased and the Investigating Officer handed over both the things to Moharrir Malkhana for safe custody.
5. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under Section' 173, Cr.P.C., to the Court of competent jurisdiction, which was en- routed through Illaqa Magistrate as provided under Section 190(2), Cr.P.C. The learned Additional Sessions Judged Attock vide order dated 20.04.2007, 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 14 prosecution witnesses.
6. Gul Amir Khan, (PW-13) is the complainant of the case, who besides recording complaint also lodged supplementary statement thereby nominating the appellant as accused person.
Muhammad Yousaf (PW-11) and Raees Khan (PW-12) are the witness of wajtakkr and last seen.
Muhammad Akram Khan Patwari (PW-10) had prepared site plan of the place of occurrence.
Muhammad Sher, S.I. (PW-14) is the Investigating Officer of the case. Zaffar Iqbal (PW-8) had conducted postmortem examination upon the dead body of Mehboob-ur-Rehman and observed following injuries on his person:-- "1.A Fire arm wound of entry .8 cm x .8 cm on the back of scalp.
2.A. Fire arm wound of exit 0.8 cm x 0.5 cm on the right side of the face near the nose.
3. Multiple abrasions on the right anterior side of the chest.
On dissection of cranium and spinal cord scalp and skull were injured against Injury No, 1 likewise membranes and brains were also found injured against Injury No, 1.
On opening the thorax and abdomen all the organs were found healthy and normal. Pericardium and heart was empty. Stomach was containing semi digested food. Small intestines contained semi digested diet and gases. Large intestines contained facal matter. Bladder containing residurial urine.
In my opinion the cause of death in this case was Injury No, 1 which led to brain damage, hemorrhage shock and death. Injuries are antemortem in nature. Injury No, 1 was sufficient to cause death in ordinary course of nature. The foreign body (pieces) revered from the skull were sealed in a phial.
The duration between injuries and death was within one hour whereas between death and post mortem was two to four days."
Statements of rest of the prosecution witnesses are formal in nature.
7. On 06.09.2008, learned DDPP gave up Habib Ullah, Maskin Khan, Aslam Pervaiz on the request of learned counsel for the complainant being unnecessary, whereas Wali. Jan PW since dead and Abdul Qayyum constable also being unnecessary. The learned DDPP while tendering in evidence report of Chemical Examiner Exh.PO, report of Serologist Exh.PP and report of Forensic Science Laboratory Exh.PQ closed the prosecution evidence.
8. The appellant was examined under Section 342, Cr.P.C.; wherein he opted neither to appear in the witness box under Section 340(2), Cr.P.C. nor opted to produce defence evidence. In response to the question why the case is against him and why the PWs deposed against him, appellant made the-following deposition:- "I am innocent. All private PWs are related inter se and with deceased. Aslam Pervaiz brother of the complainant nourished grudge against my family as he wanted to purchase some land which my father purchased. Taking opportunity of occurrence, he involved me in this case falsely and deposed against me on his asking. The police officials in order to make successful case deposed against me. On 2.2.2007 complainant party arranged tracer dogs for tracing accused Had the PWs seen me lastly in company of deceased or in vicinity of place of occurrence there was no need to bring tracer dogs".
9. Learned counsel for the appellant submitted that admittedly the occurrence is unseen, and no body had witnessed the incident. Learned counsel vehemently argued that Hafiz Mehboob-ur- Rehman deceased was missing from the house on 26.01.2007 whereas Gul Amir Khan complainant (PW-13), who happens to be real father of the deceased, lodged the FIR on 31.01.2007 at about 8:50 p.m, hence there is a delay of five days in the registration of case without plausible explanation.
Learned counsel vehemently contended that while lodging complaint (Exh.PD) the complainant only deposed that some unknown accused person had committed murder of his son, whereas, while lodging supplementary statement, he not only nominated the appellant as accused person, rather he stated that the deceased was having mobile phone and LD. in his possession but the same were found missing when the dead body of the deceased was recovered and thereby took a different summersault. Learned counsel vehemently contended that the dead body was not recovered on pointation of the appellant. The recovery of mobile phone and I.D. card belonging to the deceased at the time of arrest of the appellant itself speaks volumes qua authenticity of the stance of the prosecution and leads only to the one conclusion that those were planted in order to strengthen the prosecution, case. Learned counsel further argued that evidentiary value of such recovery is a question, which requires judicial scrutiny. It was next argued that positive report of Forensic Science Laboratory does not advance the prosecution case as the crime empty and the weapon of offence were sent later in this regard. Learned counsel went on arguing that there are material contradictions in the statements of the prosecution witnesses and in such circumstances the appellant is liable to be extended the benefit of doubt. It was next argued that in the instant case there is no direct incriminating evidence against the appellant to connect him with the commission of offence, therefore, sentence inflicted by the learned trial Court is not justifiable and the appellant is entitled to be acquitted of the charge.
While arguing Crl. Revision No, 113/2008 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.
10. As against above, learned Law Officer assisted by learned counsel for the complainant vehemently opposed the contentions raised on behalf of the appellant. It was argued that the delay in lodging the FIR was natural as firstly the complainant tried his level best to locate his son and thereafter he reported the matter to the police on recovery of the dead body of his son.
Learned counsel for the complainant submitted that though the appellant was not named in the crime report, but the complainant while lodging his supplementary statement on the same day i,e, 31.1.2007 implicated the appellant in the instant case. It was further argued that recovery of crime weapon and positive report of the Chemical Examiner fully connects the appellant with the commission of the offence. Moreover, recovery of the I.D. card and mobile phone from the appellant further corroborated involvement of the appellant. Learned counsel for the complainant further, argued that the complaint while producing cogent and reliable evidence in the shape of last seen and wajtakkar has successfully proved its case against the appellant. Learned counsel contended that the appellant had committed such a heinous crime only due to scuffle between him and the deceased some days prior. Learned counsel argued that in the instant case, the occurrence is admitted one and ordinarily substitution is a very rare phenomenon, which is not visible in the instant case.
While arguing Crl. Revision No, 113/2008, the learned counsel for the complainant submitted that the prosecution proved its case through leading cogent and confidence inspiring evidence, therefore, the appellant deserve normal penalty of death as provided under the statute.
11. Arguments advanced pro and contra have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant as well as learned Law Officer assisted by learned counsel for the complainant.
12. The crime report was lodged at the instance of Gul Amir' Khan complainant (PW-13) against unknown accused person. No specific date and time of alleged occurrence has been mentioned in the crime report by the complainant, rather the same has been mentioned as unknown. As per contents of the crime report, Hafiz Mehboob-ur-Rehman son of the complainant left his house for school on 26.01.2007, but on 31.01.2007 oil recovery of dead body of Hafiz Mehboob-urRehman, the complainant got lodged the crime report that some unknown accused had committed murder of his son.. The complainant did not mention any motive behind the occurrence. However, on the same day i,e, 31.01.2007 the complainant recorded his supplementary statement while implicating the appellant with the averments that some days earlier scuffle of his deceased son had taken .place with the appellant and raised suspicion that the appellant had committed the occurrence.
The complainant also stated in the supplementary statement that the deceased was having mobile phone and his I.D. card with him. Bare reading of the supplementary statement of the complainant reflects that he had only raised suspicion against the appellant qua his involvement in the instant case. In order to prove the case, the complainant produced Muhammad Yosuaf (PW- 11) and Raees Khan (PW-12) as witnesses of wajtakkar and last seen. The appellant in the instant case was arrested on 07.02.2007 and during his personal search I.D. card (P.5)-and mobile phone (P.6) belonging to the deceased were recovered by the Investigating Officer (PW-14). It is not possible and appeal to a prudent mind that after commission of such a heinous offence, and no one is supposed to keep the belongings to the deceased with him. Recovery of both these things belonging to the deceased coupled with supplementary statement qua mentioning both these things itself speaks volumes qua authenticity of the same. Moreover, crime empty of pistol .30 bore was taken into possession by the Investigating Officer`from the place of occurrence on 01.02.2007, but the same was sent to the office of Forensic Science Laboratory on 07.02.2007, whereas the weapon of offence pistol .30-bore was taken into possession by the Investigating Officer from the appellant on 07.02.2007, but the same was sent to the Office of Forensic Science Laboratory on 10.02.2007. Though the complainant has stated in the supplementary statement that some days prior scuffle of the appellant had taken place with his deceased son but he has failed in proving the said stance. Delayed sending of crime empty and weapon of offence to the concerned quarter also creates dents towards authenticity of the same and positive report of the Forensic Science Laboratory in such circumstances is, of no avail for the prosecution. Another important aspect of the instant case is that the prosecution has given up Habib Ullah, Maskin Khan, Aslam Pervaiz on the request of the complainant being unnecessary and Abdul Qayyum, prosecution witnesses.
13. 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 Vs. The State (1972 5CMR 15).
14. Upshot of above discussion is that the prosecution case is lacking sufficient incriminating evidence. The manner of lodging complaint (Exh.PD) thereby not nominating any person and subsequently supplementary statement while implicating the appellant, nature of recoveries and other attending circumstances of the instant case make the case against the appellant doubtful.
Resultantly, the salutary principle of benefit of doubt is extended in favour of the appellant as a Consequence whereof; Crl. Appeal No, 275/2008 filed by Amir Feroz appellant is accepted in toto.
Conviction and sentence recorded in the judgment of the learned trial Court passed on 24.09.2008 is set at naught. The appellant is directed to be released forthwith if not required in any other case.
15. So far as Crl. Revision No, 113/2008 seeking enhancement in sentence inflicted by learned trial Court is concerned, for the afore-stated reasons, the same has no weight, which is accordingly dismissed.