' MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No,497-J of 2006 (Muhammad Shahid v. The State) and Murder Reference No,813 of 2006, sent by the learned trial Court. For confirmation or otherwise, of the sentence of death awarded to Muhammad Shahid (appellant), as both these matters have arisen out of the same judgment dated 30-11-2006 passed by the learned Additional Sessions Judge, Gujranwala, whereby, Muhammad Shahid (appellant) was convicted under section 302(b), P.P.C., for the murder of Shahid (deceased), and sentenced. To death with a direction to pay a compensation of Rs,1,00,000 (Rupees one lac only) to the legal heirs of the deceased, as provided under section 544-A, Cr.P.C., in default whereof, he was directed to suffer six months' SI. However, benefit of doubt was extended to a co-accused of the appellant, namely, Imran and he was acquitted from the charge.
2. Brief facts of the case, as given by Muhammad Mehboob complainant (P.W.8) in the F.I.R.
(Exh.PB) are that he was a resident of Kot Bulla and cultivator by profession. On 4-11-2005 at about 4-00 p.m., he went to his fields to see paddy crop and saw dead body of an unknown person, lying in the field of his paddy crop and noted that he was done to death by some unknown persons, after having caused sharp edged weapon injuries on his head and both the hands.
3. It is relevant to mention here that Muhammad Nawaz (P.W.11), who was real father of Shahid (deceased), made a statement before the police (Exh.DA), which is to the effect, that on 3-11-2005 at about 6-00 p.m., he was present in his house along with his wife and children, when, on knocking at the door, he opened it and saw that Muhammad Shahid (appellant) and Imran (acquitted co- accused of the appellant), who were friends of Shahid (deceased) and used to work in the same factory, were standing outside the house and told him that they had come to see Shahid (deceased), whereupon, Muhammad Nawaz (P.W.11) called his son out of the house. His other son Muhammad Ameer (P.W.12) also came out Both the accused persons talked with his son Shahid (deceased) for a while. Thereafter, Shahid (deceased) told his father Muhammad Nawaz (P.W.11) and brother Muhammad Ameer (P.W.12) that he was going along with his said friends for a while but would return soon. Shahid (deceased) went along with the accused persons, whereas, Muhammad Nawaz (P.W.11) along with his son Muhammad Ameer (P.W.12), entered the house. He has also stated that his son Shahid (deceased) did not return home during the whole night, upon which, all the family members became worried. They contacted the accused persons but they adopted delaying tactics. According to Muhammad Nawaz (P.W.11), when the position was tightened by them, against the said accused persons, it came to light on 15-11-2005 that they killed his son Shahid (deceased).
4. The appellant was arrested an 29-11-2005 by Muhammad Alumna SI (P.W.16). During the course of investigation, on 30-11-2005, the appellant allegedly led to the recovery of Bughda (P4) from near the place of recovery of dead body of the deceased, which was allegedly lying at a distance of about 10 feet from the said place, which was taken into possession through memo Exh.PG, attested by Riaz and Tariq. Then the appellant took the Investigating Officer to his house and got recovered motorcycle (P5) from the courtyard which was secured through memo Exh.PH and witnessed by the same P.Ws. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing required legal formalities, as provided under the Code of. Criminal Procedure, framed a charge against the appellant and his acquitted co-accused Imran on 11-3-2006, to which, they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has produced 18 witnesses, during the trial. The appellant, along with his acquitted co-accused Imran, was examined under section 342, Cr.P.C. The appellant neither produced any evidence in defence nor opted to depose on Oath as provided under section 340(2), Cr.P.C. In an answer to the question "why this case against you and why the P. Ws. Have deposed against you", the appellant, in his statement recorded under section 342, Cr.P.C., stated as under:-- "In fact murder of deceased Shahid is a blind and on mere suspicion I have been involved in this case as deceased was working with me in the factory and some little altercation took place between me and deceased 8 months back. Due to that suspicion I and my co-accused have been involved in this case and P.Ws. Deposed against me being heirs of the deceased and close inter se relationship".
' However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant, as detailed above.
6. Canvassing acquittal, learned counsel for the appellant, in support of this appeal, contends that admittedly it is an unseen occurrence and nobody was named as an accused or eye-witness in the F.I.R.; that-there is no direct evidence against the appellant and the prosecution case is based on the circumstantial evidence; that the statements of Muhammad Nawaz (P. W.11) and Muhammad Ameer (P.W.12) are not reliable for the simple reason that they have stated before the learned trial Court that Shahid (deceased) left home in their presence, along with the appellant and Imran(appellant's acquitted co accused) on 3-11-2005, but they remained mum till 15-11-2005 when they were 'contacted by the police; that had there been any truth in their statements, they should have informed the police on the same day about. The missing of the deceased who was very closely related to them; that so far as statement of Muhammad Imran (P.W.9) is concerned, he has not brought on record the original record qua the motorcycle, which was allegedly taken on rent by Shahid (deceased) and even the said motorcycle was without any number plate and moreover this witness too kept mum till 1-12-2005 and did not inform any authority regarding the missing or misappropriation of his motorcycle coupled with the fact that he has merely stated that Shahid (deceased) came to him along with his two friends but did not name the appellant and even he did not identify Muhammad Shahid (appellant) before the learned trial Court; that so far as statements of Wazir Ali (P.W.13) and Ghulam Abbas (P.W.14) are concerned, while appearing before the learned trial Court they have stated that on 3-11-2005, the deceased, in the company of the appellant and his co-accused Imran, was seen on a motorcycle but their statements also do not inspire confidence because despite being close relatives of the deceased, they did not inform his family members regarding this fact and kept mum till the dead body of the deceased was identified through snaps, by his father on 16-11-2005, in the Police Station. So far as recovery of Bughda (P4), allegedly recovered on the pointation of the appellant and taken, into possession through memo (Exh.PG), is concerned, learned counsel for the appellant contends that the said recovery is not helpful to the prosecution because the Bughda (P4) was taken into possession from a place which was at a distance of just 10 feet from the place wherefrom dead body of Shahid (deceased) was recovered. Further contends that had there been any such Bughda at that place, the same would have been taken into possession on' the very day of recovery of the dead body of the deceased; that Muhammad Mehboob complainant (P. W.8) has stated that on the day of recovery of dead body, he did not notice anything around the said place that Muhammad Akram SI (P. W.16) had admitted in his cross-examination that the place of recovery of Bughda was accessible to every body that the witness of the recovery, namely, Riaz Ahmad (P.W.10) is not reliable because he is resident of a place which was at a distance of 50 kilometers from the place of occurrence and he did not give any explanation as to why he was present there; that although the place of recovery was close to a dera but nobody from the said dera was associated with the recovery proceedings; that Exh.PQ carries no value for the simple reason that it cannot be treated as a statement under section 164, Cr.P.C. Coupled with the fact that no question regarding this document was asked from the appellant while recording his statement under section 342, Cr.P.C.; that the appellant along with his real brother Imran (appellant's acquitted co-accused) was implicated in this case, who has been acquitted by the learned trial Court and, admittedly, no appeal against his acquittal has been filed either by the State or on behalf of the legal heirs of the deceased, therefore, the appellant cannot be convicted on the basis of same evidence which has been disbelieved by the learned trial Court, qua appellant's acquitted co-accused Imran; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and that the appellant is entitled to acquittal. He has placed reliance on Muhammad Jamil v.
Muhammad Akram and others (2009 SCM R 120).
7. While opposing this appeal, the learned DPG, assisted by the learned counsel for the father of the deceased, contends that there was no enmity between the appellant and witnesses of this case to falsely depose against him; that sufficient incriminating evidence is available on the record, in the form of statements of Muhammad Nawaz (P.W.11) and Muhammad Ameer (P.W.12), who have stated before the learned trial Court that the appellant and his acquitted co-accused Imran came to their house and took Shahid (deceased) along with them in their presence whereafter he did not return home, which inspires confidence and connects the appellant with the commission of the crime which is further supported by statements of Wazir Ali (P.W.13) and Ghulam Abbas (P. W.14) who had seen the deceased in the company of the appellant and Imran (appellant's acquitted co-accused) on a motorcycle on 3-11-2005; that their statements are further supported by the recovery of Bughda (P4) and motorcycle (P5) at the instance of the appellant, which were taken into possession through Memos Exh.PG and Exh.PH, respectively; that the prosecution case also finds support from the positive reports of the Chemical Examiner (Exh.PQ and Exh.PR) and of Serologist (Exh.PS and Exh.PT); that the case of Imran (appellant's acquitted co- accused) is distinguishable from appellant's case because no recovery was affected from Imran; that through Exh.PQ, a request was made by the police to the learned Magistrate for recording statement of the appellant under section 164, Cr.P.C. But the learned Judicial Magistrate observed that since appellant had already confessed his guilt before the police, therefore, there was no need of recording his statement and only got appellant's thumb impression and this document can be taken into consideration against the appellant; that the prosecution has proved its case against the appellant beyond any shadow of doubt, therefore, the appeal filed by the appellant against his conviction and sentence be dismissed. Learned counsel for the complainant has placed reliance on Khurshid v. The State (PLD 1996 Supreme Court 305) and Binyamin alias Khari and 2 others v.
State (2007 SCM R 778).
8. We have heard learned counsel for the parties, have given anxious consideration to their respective arguments and have also scanned the record with their able assistance.
9. In this case, none is named as an accused or eye-witness in the F.I.R. (Exh.PB) which was recorded on the statement of Muhammad Mehboob (P.W.8) which is to the effect that on 4-11-2005 at about 4-00 p.m., when the complainant (P.W.8) went to his fields to see the paddy crop, he had seen a dead body of an unknown person lying in the field of his paddy crop who had been done to death by some unknown persons, after having caused sharp-edged weapon injuries on his head and both the hands.
10. Since the prosecution case against the appellant thinges on the -circumstantial evidence, therefore, utmost care and caution is required for reaching at the just decision of the case. By now, it is settled that in a case of circumstantial evidence, the chain link should be so interconnected with each other that its one end touches the dead body while the other end goes around the neck of the accused and if any chain link is missing then its benefit should be given to the accused. In this regard, guidance has been sought from the judgments of the learned Apex Court of the country reported as THE STATE v. MANZOOR AHMAD (PLD 1966 Supreme Court 664), ASADULLAH and another v. STATE and another (1999 SCM R 1034), CH. BARKAT ALI v. MAJOR KARAM ELAHI ZIA AND ANOTHER (1992 SCM R 1047), SARFRAZ KHAN v. THE STATE (1996 SCM R 188), ALTAF HUSSAIN v. FAKHAR HUSSAIN AND ANOTHER (2008 SCM R 1103), IBRAHIM AND OTHERS v. THE STATE (2009 SCM R 407) and MUHAMMAD HUSSAIN v. THE STATE (2011 SCM R 1127).
11. Keeping in view the guidelines,, given in the above cited precedents, now we would like to discuss the prosecution evidence, produced in this case.
12. The evidence of last seen, has been furnished by Muhammad Nawaz (P. W.11) and Muhammad Ameer (P. W.12), who are father and brother, respectively, of Shahid (deceased), and have stated before the learned trial Court that on 3-11-2005 at about 6-00 p.m., they along with Shahid (deceased) were present in their house when the appellant and his acquitted co-accused Imran, came there. According to both these witnesses, at the asking of the appellant and his acquitted co-accused Imran, Muhammad Nawaz (P.W.11) called his son Shahid (deceased) from inside the house who left the house along with the appellant and Imran (appellant's acquitted co-accused), but did not return home. Both these witnesses have also stated that they contacted the appellant and his acquitted co-accused Imran many times to know the whereabouts of Shahid (deceased) but they lingered on the matter. Had these witnesses any suspicion against both the accused persons, they must have informed the police regarding missing of Shahid (deceased), as the accused persons did not cooperate with them. But, surprisingly, both these witnesses remained mum till 16-11-2005, when they were contacted by the police and were shown the snaps of the dead body of Shahid (deceased). The conduct of these two witnesses, who are very closely related to the deceased, creates doubts about the veracity of their statements because when Shahid (deceased) did not return home far many days and the accused persons, who allegedly took Shahid (deceased) along with them, were not ready to disclose about the whereabouts of Shahid (deceased), the normal conduct of these witnesses should have been to apprise the police or some respectable, about this fact but they did not do so. Muhammad Nawaz (P. W.11), while appearing before the learned trial Court, has admitted in his cross-examination that he never contacted the police regarding missing of his son Shahid (deceased). Even there is nothing on the record that they apprised about the said factum to any respectable of the locality. In these circumstances, it is not safe to rely on the statements of these two witnesses.
13. Muhammad Imran (P.W.9) has stated before the learned trial Court that Shahid (deceased) came to his shop along with two friends and obtained motorcycle on rent from him and went away, whereafter, the motorcycle was not returned to him which, later on, was found in the Police Station of Ferozewala. The evidence furnished by this witness is not reliable because this witness did not take any step for lodging any report with the police regarding missing or misappropriation of the said motorcycle till 1-12-2005. In his cross-examination, this witness has stated that he entered the particulars of the motorcycle in the relevant register maintained by him at his shop for the said purpose but no such register was produced by him either before the police or the learned trial Court. So much so, while appearing before the learned trial Court, he has only stated that Shahid (deceased) came at his shop along with two friends but did not mention the name of the appellant. Apart from above, even he, did not identify the appellant in the Court, being a companion of the deceased on the said day. Therefore, statement of this witness is not reliable.
14. So far as statements of Wazir Ali (P.W.13) and Ghulam Abbas (P.W.14) are concerned, we may state here that Wazir Ali (P.W.13) is the real brother of Shahid (deceased), whereas, Ghulam Abbas (P.W.14) is his paternal uncle. While appearing before the learned trial Court, both of them have stated that on 3-11-2005, the deceased was seen by them in the company of the appellant and his acquitted co-accused Imran on a motorcycle, whereafter, he remained missing till the identification of his dead body by Muhammad Nawaz (P.W.11) and Muhammad Ameer (P.W.12) through snaps, on 16-11-2005. They are related to the father of the deceased but despite that they did not pass on such an important information to him, which is against the conduct of a man of ordinary prudence.
15. As far as recovery of Bughda (P4) on 30-11-2005, on the pointation of the appellant, which was taken into possession through memo (Exh.PG), is concerned, we have noted that the same was allegedly recovered from a place which was about 10 feet away from the place wherefrom dead body of the deceased was recovered. It does not appeal to common sense that when the Bughda (P4) was lying at a distance of only ten feet from the place of recovery of the dead body then why the same was not taken into possession on the day i.e, 15-11-2005 when the dead body was recovered. Muhammad Mehboob complainant (P.W.8), while appearing before the learned trial Court, has admitted in his cross-examination that on the day. Of recovery of dead body, he did not notice anything around the dead body. Apart from above, this recovery was affected after 26 days of the recovery of the dead body from a place which was neither owned nor possessed by the appellant. Muhammad Akram SI (P. W.16) has admitted in his cross-examination that this place was accessible to every body. Moreso, evidence furnished by Riaz Ahmad (P.W.10), who is a witness of the said recovery, is not confidence inspiring because he is resident of a place which was 50 kilometers away from the place of recovery of the said Bughda and he did not offer any plausible explanation for his presence at the said place. The Bughda (P4) was lying in the open field and was allegedly recovered after 26 days of the occurrence, therefore, there was no remote possibility of existence of blood on the same which creates doubts about the reports of the Chemical Examiner (Exh.PR) and Serologist (Exh.PS) about the blood on the Bughda (P4). In this regard reliance is placed on Muhammad Jamil v. Muhammad Akram and others. (2009 SCM R 120), wherein, at page 123, the Hon'ble Supreme Court of Pakistan, has been pleased to hold as under:-- "It is borne out from the record that the alleged recovery of blood-stained Chhuri has been effected after about one month of the occurrence from an open plot which was not in exclusive possession of the respondent and was accessible to all. It was also not likely that the blood would not disintegrate meanwhile. So the reasons advanced by the learned .Judge in Chambers are not arbitrary or fanciful for not believing the recovery".
16. So far as document (Exh.PQ) is concerned, we may observe that the learned trial Court put Exh.PQ on two documents. One is the application submitted by the police before the learned Judicial Magistrate for recording statement of the appellant under section 164, Cr.P.C. And second is the report of the Chemical Examiner, qua earth. The Investigating Officer submitted the application (Exh.PQ) before the learned Magistrate, who passed an order on the same on 5-12- 2005, which reads as under:-- "I.O. Has made a request for recording of statement of the accused under section 164, Cr.P.C.
Record perused. Perusal of the record reveals that the statement of the accused Muhammad Sahhid under section 161, Cr.P.C. Has already been recorded by the I.O. Of the case. The accused present in the court was asked whether he want to give statement under section 164, Cr.P.C. Or he want to rely on his statement which he has already given to the police under section 161, Cr.P.C., the accused Muhammad Shahid stated that he want to rely his statement which he has already given to the police. As a token of correctness, his thumb impression has been obtained on the present request. As per statement of the accused, there is no need to record his statement under section 164, Cr.P.C., therefore, present request of the I.O. Is hereby turned down accordingly".
' The above-mentioned document (Exh.PQ) cannot be taken into consideration against the appellant, for the following reasons:--
(a) The statement of an accused cannot be recorded under section 161, Cr.P.C., rather, under this section, statements of the witnesses are recorded by the police;
(b) Any confession made by an accused, when he is in police custody, is inadmissible in evidence, in view of Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984;
(c) The procedure provided under sections 164 and 364, Cr.P.C. And in Chapter 13, Volume 3, of the Rules and Orders of the Lahore High Court, Lahore, was not followed by the learned Magistrate, on the application submitted by the police;
(d) Even otherwise, no question was put to the appellant by the learned trial Court about this document (Exh.PQ) while recording his statement under section 342, Cr.P.C.
17. Now we would like to discuss the medical evidence brought on record through the statement of Dr. Abid Zia (P.W.1) who conducted postmortem examination on the body of Shahid (deceased) and noted 14 incised injuries on his body in the postmortem report (Exh.PA) prepared by the said doctor. But it is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury but it cannot connect the accused with the commission of the crime, uptill and until there is some other evidence, therefore, in the circumstances of the case, when other evidence has not been considered reliable, this piece of evidence is of no avail to the prosecution. In this regard reference is invited to the case reported as GHULAM MUSTAFA and another v. STATE (2009 SCM R 916), wherein, at page 527, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- ' However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same"
18. There is yet another important aspect of this case. The real brother of the appellant, namely, Imran was also implicated in this case. He was charged along with the appellant for the murder of Shahid (deceased). It is the consistent case of the prosecution that the said Imran was along with the appellant when the deceased went along with them from his house and when the deceased was seen on the motorcycle. But he has been acquitted by the learned trial Court and admittedly, no appeal against his acquittal has been filed.
19. It is a settled and universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the conviction and sentence of the appellant awarded through the impugned judgment is set-aside and the appellant is acquitted from the charge by extending him the benefit of doubt. He is behind the bars and shall be released forthwith if not required to be detained in any other case.
20. However, before parting with the judgment, we direct that a copy of this judgment be placed on the CR Dossiers of Mr. Usman Hameed Warriach, the then learned Judicial Magistrate 1st Class, Gujranwala, to whom application (Exh.PQ) was submitted by the police, for recording statement of the appellant under section 164, Cr.P.C.
Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED.