1. RAJA SAEED AKRAM KHAN, J. --- The captioned appeal arises out of the judgment of Azad Jammu and Kashmir Shariat Court dated 25th June, 2010, whereby Criminal appeal No, 50 of 2006 filed by the appellants, herein, has been dismissed.
2. The necessary facts for disposal of the instant appeal are that a case under section 302, A.P.C. was registered at Police Station, Afzalpur on the complaint of Khalid Qayyum Butt, Incharge Veterinary Hospital, Jatlan. It was reported that the complainant was residing in an official quarter near the hospital. After availing three days leave he came back to join his duty. On 25.3.2003 when reached in the hospital, he saw a naked dead-body of young man lying in the northern side of the Courtyard of his residential quarter. The head of the dead body was imputed with some sharp edged weapon and a huge quantity of blood was scattered in the Courtyard. During investigation, the accused-respondent was arrested. He was found guilty of the offence. Thereafter, Section 201, A.P.C. was also added and on completion of investigation, a challan for commission of offences under sections 302/201, A.P.0 was.submitted before the District Court of Criminal Jurisdiction, Mirpur.
2. After necessary proceedings, the Trial Court acquitted the accused-respondent of the charge through judgment dated 26.6.2006. An appeal was filed by the appellants in the Shariat Court against the aforesaid judgment of District Criminal Court which was dismissed vide impugned judgment dated 25.6.2010 which has been assailed through this appeal.
3. Mr. Khalid Rashid Chaudhary, Advocate, the learned counsel for the appellants, argued that the judgment of the Shariat Court is against law and facts of the case, perverse and fanciful which is not sustainable in the eye of law. He argued that the two .Courts below failed to appreciate the evidence on record in a judicious manner. He submitted that both the Courts below while passing the- impugned judgments failed to consider that the prosecution witnesses have got no enmity against accused-respondent No, 1 which shows that the evidence is based on bona fide intention.
3. He argued that the recoveries effected during the investigation also support the prosecution version and recovery of dead-body of the deceased at the instance of respondent No, 1 was a cogent and solid evidence but the Courts below have not relied upon the same. The learned counsel argued that the complainant and other prosecution witnesses were independent and their deposition was confidence inspiring. The accused respondent was not nominated in the F.I.R. which shows that the complainant or the prosecution witnesses had no enmity with him. He argued that the occurrence was not witnessed by anybody but the case against the accused-respondent was proved through circumstantial evidence. The skull of the deceased was seized at his pointation and he also confessed about the commission of the offence in presence of recovery witnesses. He submitted that the place of occurrence was not disputed and was also established as such during trial and the manner of occurrence was confirmed by the post-mortem report. It was also established that prior to the incident, the accused-respondent was seen sitting at a wall of the house where the offence was committed. The prosecution successfully proved that prior.to the main occurrence, the deceased and accused-respondent had an unpleasantness because of which he nourished a grudge. Due to aforesaid enmity, he took the deceased at the place of occurrence and committed his murder. It was further established that after cutting neck and detaching the of the deceased he hide the skull in a dump of sting from where it was seized at his instance. The learned counsel for the appellants contended that both the Courts below, while acquitting the accused-respondent, have not appreciated the evidence in its true perspective and overlooked the overwhelming evidence in the form of recovery of dead body at the instance of the accused and the complainant is an independent person who has no enmity with the accused to falsely implicate him in the case. No motive to falsely implicate the accused-respondent has been attributed to any of the witnesses whose evidence is trustworthy and can safely be relied upon. He further argued that there was a single accused. In such like cases, the false implication is a rare phenomenon. This fact has totally been ignored while acquitting the accused of the charge.
4. Although, there was no direct evidence except circumstantial evidence and in such like cases, it cannot be ignored lightly. The learned counsel for the appellants argued that it is settled law that confession in the custody of the Police is admissible under Article 40 of the Qanoon-e-Shahadat Order, 1984. Admittedly in this case the recovery of dead body alongwith skull was recovered on the pointation of the accused but the Trial Court as well as the' first appellate Court has not given weight to this evidence and in this way both the Courts below have committed a grave illegality. He further urged that no evidence came on the record that the skull which was recovered on the pointation of the accused-respondent was not of a human. He further contended that the doctor, who appeared as P.W. 15, has verified that it was a human skull. Even otherwise, during the cross- examination no one has suggested that it was not a human skull, therefore, the statement of prosecution witness to that extent is admitted. He urged that the motive is always in the mind of the accused and even in absence of the motive, capital punishment can be awarded. He submitted that the weapon of offence was destroyed by throwing it in Jehlum canal. He contended that it was the accused-respondent who knew about the dead body and the skull and the skull was recovered in presence of two independent witnesses on the pointation of the accused- respondent. He submitted that the statements of all the prosecution witnesses are in line with each other. Lastly, he argued that the allegation of committing the alleged offences was successfully proved against the accused-respondent and he was liable to be convicted under sections 302 and 201, A.P.C., therefore, by accepting the appeal filed by the legal heirs of the deceased, the impugned judgment may be set aside and the respondent be convicted in accordance with law.
5. He relied upon the cases titled Noor Ahmad and others v. The State [1992 SCR 1], Nazir v. The State [PLD 1960 (W.P.) Lah. 189], Sh. Muhammad Amjad v. The State [PLD 2003 SC 704], Muhammad Tahir Aziz v. The State and another [2009 SCR 71] and Abdul Latif v. Safarish Ali Khan [2002 SCR 288].
4. Raja Ghazanfar Ali, Advocate-General, for the State, has fully supported the arguments advanced by Ch. Khalid Rasheed Chaudhary, Advocate, the learned counsel for the appellants.
5. On the other hand, Raja Inamullah Khan, Advocate, while appearing on behalf of the accused- respondent, has strongly supported the judgments of the Courts below while arguing that it is a blind murder and there is no direct evidence available to the prosecution. He vehemently contended that it is admitted position that the whole case is based on circumstantial evidence. To prove a case of circumstantial evidence, there must be unbroken chain of facts. He urged that the dead body of the deceased was not identifiable and the only witness who identified the dead body is Muhammad Saleem is real brother of the deceased, but he has not been produced in the Court by the prosecution. It was contended that no sign of identification was written by the doctor at the time of post-mortem. The dead body was recovered from. the Haveli of one Ghulam Rasool who was not examined during the trial who was one of the star witnesses of the case. He lastly argued that the skull of the dead body was not identified. No recovery memo of skull was prepared which makes the whole case doubtful. He urged that this is a case of improvements in the statements of the prosecution witnesses and the whole case is based on presumptions. Under law, the punishment cannot be awarded on the basis of presumptions unless supported by strong evidence. There are glaring contradictions in the statements of the prosecution witnesses. Both the Courts have scanned the prosecution evidence in a comprehensive manner and rightly came to the conclusion that the prosecution has failed to prove the case against the accused-respondent.
6. He argued that the recoveries effected during the course of investigation do not support the prosecution version and the recovery of skull was doubtful and violative of relevant provisions of law as no respectable of the locality was asked to join the recovery process. Ghulam Rsool and many other were present at the spot but they were not cited as witnesses. He urged that the dead- body was also not recovered on the pointation of accused-respondent and there is no recovery of weapon of offence in this case. He urged that the occurrence took place at the night falling between 24/25th March, 2003 while the matter was reported to Police on the following day at 1:00 p.m. which shows that a considerable delay was caused. The complainant was incharge of the Hospital and it was hard to believe that after spending three days he came to his office at 1:00 p.m. on the day the report was lodged. The presence of the deceased and the accused-respondent at the place of occurrence at relevant time was not proved as there was no evidence on record in this regard. Alleged motive was also not established. The witnesses examined by the prosecution were closely related to the deceased. Those who indentified the dead body were not exainined during the trial. The recovery of skull was doubtful. The important prosecution witnesses either were given up or their evidence was closed. There was nothing on record showing that the skull allegedly recovered at the instance of the accused- respondent was the part of the body seized from the place of occurrence. Moreover, no Credible evidence establishing the identification of the deceased was brought on record. The allegation of destroying the evidence by throwing weapon of offence in Jehlum canal was also not proved. The learned counsel contended that the statements of the prosecution witnesses were recorded after a considerable delay and in this respect no explanation has been .brought on the record. He urged that Article 40 of the Qanoon-e-Shahadt Order, 1984 is not applicable in this case. The recoveries have not been effected exclusively on the pointation of the accused, therefore, the confession made by the accused before the Police is not admissible. The whole prosecution story was highly doubtful, thus the two Courts below rightly appreciated the evidence on record and acquitted the respondent, therefore, the appeal is liable to be dismissed. He relied upon the case titled Ghulam Rasool Shah v. State and 10 others [2009 SCR 390] and Nasrullah v. Shamim Akhtar and 4 others [2009 SCR 470].
6. We have heard the arguments of both the learned counsel for the parties and perused the record minutely with the help of the learned counsel for the parties. The occurrence took place on 24.3.2003 and the F.I.R. was registered on 25.3.2003 at 1.30 p.m., whereas the accused-respondent was arrested on 10.4.2001 After completing the investigation, the challan was submitted before the Court of competent jurisdiction. The accused was provided the opportunity to be examined under section 242, Cr.P.C. where he pleaded not guilty and was sent to face the trial. To prove the prosecution case, as many as 15 witnesses out of 22 were produced on ocular account and the documentary evidence in shape of medical report, site plan and recoveries etc. was also produced. There is no denial on the part of anybody that it was a case of circumstantial evidence.
7. Originally in the F.I.R. no one was nominated. The whole case of the prosecution stands on (i) recovery of dead body; (ii) recovery of skull; (iii) extra-judicial confession and (iv) last seen evidence.
7. Admittedly, this is a case of unseen occurrence and the whole case hangs on the circumstantial evidence. Originally nobody was nominated in the F.I.R. It was lodged after a considerable delay and in this regard no explanation has been brought on the record. Although, there is no bar on recording conviction on the basis of the circumstantial evidence but for that purpose the principles settled by the superior Courts must be kept in mind while analysing the evidence. Even, death penalty can also be awarded on circumstantial evidence but it should be beyond any shadow of doubt. The chain of facts be such that reasonable inference can be drawn that the accused has committed the offence. All the facts established should be consistent only with the hypotheses of guilt of the accused. If any link is missing that will destroy the whole lings of such evidence and all the links of the circumstances must lead to the guilt of the accused. It is not a such type of evidence, but it is sufficiency and quality which matteRs, The circumstantial evidence should be so interconnected that it forms such a continuous chains that its one end touches the dead body and the other the neck of the accused thereby excluding all hypothesis of his innocence as laid down in the case reported as Samar Ja William and other v. The State [2002 MLD 102], in which it has been observed as under:-- ".................. It is now well-settled that circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead body and other, neck of the accused thereby excluding all the hypothesis of his innocence ......."
8. In a case titled Imran Ashraf and 7 others v. The State [2002 SCM R 424] it has been held as under:-- "The proposition of accepting circumstantial evidence to establish guilt against the accused has not to be accepted merely in view of the arguments unless any unimpeachable circumstantial evidence is brought on record to justify the inference of guilt against them. The circumstantial incriminating evidence must be incompatible with the innocence of accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt ..... .."
9. In a case titled Muhammad Aslam v. Muhammad Zafar and 2 others [PLD 1992 SC 1], it has been observed as under:-- ''....... It is well settled that no accused can be held guilty on the basis of circumstantial evidence unless the facts proved are incompatible hypothesis than that of guilt"
10. In the case titled Samar Jan William and others v. The State [2002 M LD 1027], it was observed as under:-- ".... It is by now well-settled that circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead body and other, neck of the accused thereby excluding all the hypothesis of his innocence."
11. In another case titled Akbar Khan v. The State [2003 P.Cr.L.J. 1071], it was held as under -- "....A case rests upon circumstantial evidence is required to be so transparent that by no hypothesis there could be any doubt regarding any chain of the circumstantial evidence."
12. Similarly, in a case titled Rehmat Ali v. Samundar Khan and another [2009 SCR 252], it was observed by this Court as under:-- Since there is no direct evidence and in a case of circumstantial evidence where no enmity is alleged between the parties, no motive is alleged by the prosecution for commission of the offence then the Court has to examine the evidence with due care and caution and while securitizing the evidence if the Court reaches on the conclusion that from the circumstantial evidence the facts are proved then no hypothesis consistent with the innocence of the accused can be suggested and if the facts alleged can be reconciled with the reasonable hypotheses with the innocence of the accused then the case has to be considered one of no evidence."
13. Reliance can also be placed on a case titled Sh. Muhammad Amjad v. The State [PLD 2003 SC 704].
14. In this case on the basis of circumstantial evidence, the death penalty awarded by the Trial Court was upheld up to the Supreme Court. It is consistent view of the superior Courts of Pakistan as well Azad Jammu and Kashmir that with circumstantial evidence, there must be unbroken chains of links. This case is referred to highlight the principles laid down for evaluating the circumstantial evidence.
8. As we have observed above, the F.I.R. was lodged by one Khalid Qayyum Butt, P.W. 1, who is a veterinary doctor. Admittedly the occurrence took place at night falling between 24-25th March, 2003, whereas the F.I.R. was lodged on 25.3.2003 at 1.30 p.m. Khalid Qayyum Butt, P.W. 1, stated in cross-examination that he reached the office at 10/11 a.m. No plausible explanation has been brought on the record as to why the F.I.R. was not lodged immediately. In such like cases in which no ocular account is available, except circumstantial evidence, delay is always fatal for the prosecution.
9. Now the next piece of evidence is recovery of skull which was allegedly recovered at the instance of the accused-respondent from the Haveli of one Ghulam Rasool but surprisingly he was not cited in the calendar of witnesses of the recovery. The important witness is Munawar Hussain, P.W. 3, who has stated in his statement that the skull was recovered on the pointation of the accused- respondent in his presence. He stated that the other recovery witness was Muhammad Afzal. It is also on the record that at the time of recovery, many other persons, including Ghulam Rasool, the owner of Haveli were present but no independent person was cited in the list of the witnesses.
15. Therefore, the argument of the learned counsel for the appellants that confession made before the Police is admissible under Article 40 of the Qanoon-e-Shahadat Order, 1984 has no force. In the case in hand, the skull was not recovered on the exclusive pointation of the accused-respondent and this question has been attended by both the Courts below in a comprehensive manner while giving cogent reasons. It is also not denied that the skull was not identified. Another important aspect of the case is that the post-mortem of the dead body was conducted without head and the doctor has categorically stated that the person who identified the body, was Muhammad Saleem, who was also not examined during the trial, whereas in his statement before the Police, he stated that he identified the body due to identification mark of healed wound and different size of one of the fingers but in the post-mortem report no such identification mark is mentioned. Even, the doctor and Muhammad Saleem were not sure about the identification of the dead body that it was the body of Tassawar Maalik. The dead body and skull were recovered on different dates and no such independent evidence came on the record that the skull was of the same body. Munawar Hussain, P.W., who is real brother of the deceased, has stated in cross-examination that the skull was not identifiable.
16. 10.We have also considered the fact that Muhammad Saleem, P.W.2, Ch. Muhammad Sarwar, P.W.
17. 5, Zahid Ayub, P.W. 7, and Abdur Rehman, P.W. 11, were not produced in the Court. Muhammad Saleem, P.W. 2, was an important witness who identified the dead body, but he was given up without realizing the fact that he was an important witness as the case is based upon circumstantial evidence only, therefore, an adverse inference. as required under Article 29 of the Qanun-e-Shahadat Order, 1984, could be, drawn as has been laid down in the case titled Zafar Abbas's case (2010 SCM R 939] in which it has been observed as under: "................... The prosecution did not examine Muhammad Ibrahim by treating him as an unnecessary witness as per statement of Prosecutor dated 9.6.2006. Thus Muhammad Ibrahim was present and available in the Court on 9.62006 and his evidence could have been recorded but he was given up on the above mentioned ground without realizing the fact that he was an important witness as the case hinges upon circumstantial evidence only. In these circumstances, an adverse inference as required under Illustration (g) of Article 128 of the Qanune-Shahadat Order, 1984 can fairly be drawn that had the witness been examined his evidence would have been unfavourable to the prosecution. ....."
18. 11.So far as the last seen evidence is concerned, the statements of Mehrban, P.W. 12, and Mehmood, P.W. 13; were recorded by the Police under section 161, Cr.P.C. after one month of the occurrence and in this regard there is no explanation available on the record that why they remained mum for such a long time. Even otherwise, their statements are not plausible as they had seen the accused from a distance of 150 to 200 yards in the night houRs, Mehrban, P.W. 12, has admitted the fact that it was necessary to disclose the fact before the Police but in spite of that he remained silent for about one month. Mehmood, P.W. 13, stated that he alongwith Mehrban, P.W. 12, was sitting in the shop of Abdur Rehman while in cross-examination he stated that he was sitting in the shop of one Manzoor. He also stated that he has not seen the deceased with the accused, rather he has seen him in the street. Even otherwise last seen evidence is weakest form of evidence and if there is some last seen evidence then the strong corroboration is required. It has certain inherent defects in it as, the time of last seeing the accused in the company of deceased and the alleged time of incident and the other attending facts are to be kept in mind at the time of appraisal of evidence of such a witness. The Shariat Court rightly disbelieved the evidence of last seen.
19. While dealing with the last seen evidence, the Supreme Court of Pakistan, in a case titled Sh.
20. Muhammad Amjad v. The State [PLD 2003 SC 704], observed as under:-- "34.....This Court and Supreme Court of India while examining the evidence of last seen, have laid down certain dictums for determining the guilt or otherwise of the culprit/accused.
21. In the case reported as Rehmat alias Rehman alias. Waryam alias Badshah v. The State PLD 1977 SC 515, it was held that in such cases the circumstance of deceased having been last seen in company of accused is not by itself sufficient to sustain charge of murder, but further evidence is required to link him with the murder charge i,e. incriminating recoveries at accused's instance etc. In the case reported as Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCM R 1416 it was held that last seen evidence for basing conviction thereon the circumstantial evidence must be incompatible with innocence of the accused and should be accepted with great caution and to be scrutinized minutely for reaching a conclusion that no plausible conclusion could be drawn therefrom excepting guilt of the accused.
22. In the case reported as Jafar Ali v. The State 1999 SCMR 2669 it was held that chain of facts be such that no reasonable inference could be drawn except that accused had committed offence after victim was last seen in his company.
23. In the case reported as Mst. Robina Bibi v. The State 2001 SCM R 1914 it was held that where the deceased was last seen in the company of the accused shortly before the time he was presumed to have met his death near the place of occurrence, inference could easily be drawn that the accused responsible for the death of the deceased."
24. In the case titled Zafar Abbas v. The State [2010 SCM R 939], the following observation has been made:-- "Even otherwise, the evidence of last seen without corroboration is a weak piece of circumstantial evidence to base conviction."
25. In a case titled Muhammad Mushtaq v. State [2001 SCR 286], it was observed by this Court as under: It is a celebrated principle' of law that last seen, evidence, is fundamentally a most weak type of evidence. It has certain inherent defects in it as the time of last seeing the accused in the company of deceased and the alleged time of incident and the other attending facts are to be kept in mind at the time of appraisal of evidence of such a witness."
26. It was further observed in the above referred case:-- "13. The survey of the case law makes it abundantly clear that the last seen evidence due to its inherent defects is fundamentally a weak type of evidence. Even if the same is believed to be true a conviction on the sole testimony of last seen evidence cannot be sustained unless there be some strong corroborative piece of evidence in support of the prosecution."
27. 12.The extra-judicial confession is the weakest type of evidence and conviction cannot be recorded on such type of evidence. That can only be relied upon if strong corroboration comes on the record as has been laid down in a case titled Noor Ahmed and others v. The State [1992 SCR 1] wherein it has been observed as under:--- ".........Any confession made during the Police custody cannot be said to be a voluntary confession and as such is not admissible in evidence. Thus, we are of the view that the said extra-judicial confession cannot be relied upon for ascertaining the guilt or innocence..."
28. In another case titled Rehmat Ali v. Samundar Khan and another [2009 SCR 252], it was observed as under:-- If extrajudicial confession is made voluntarily and the evidence of witness inspires confidence and it is corroborated by other circumstances then it has to be believed and if in the circumstances of the case extrajudicial confession is procured under undue influence, inducement and it is made before an influential person or made on the condition of some promises then that kind of extrajudicial confession is not reliable."
29. Therefore, we are convinced that both the Court have rightly disbelieved this piece of evidence.
30. 13.So far as the motive is concerned, in this case the motive was set up during the investigation.
31. However, no independent evidence has been brought on the record. Although in criminal cases the motive has become immaterial if the case is otherwise proved from other independent evidence but in case of circumstantial evidence the motive is very important. Once the motive is set up that should be proved through cogent evidence.
32. 14.After analysing the evidence and going through the judgments of both the Courts below, we are of the opinion that both the Courts below have passed the judgments after giving their thoughts and appreciating the evidence on the record according to the settled norms of justice. As the identification of the dead body alongwith skull is doubtful, therefore, there is no need to discuss the other evidence in detail. As we have observed that in case of circumstantial evidence, every chain of link must be connected with each other and any break in the chains shall destroy the whole case. In this case there is no 'chain of facts, therefore, the question of broken or unbroken chains does not arise.
33. Resultantly, we do not see any force in this appeal, it is hereby dismissed revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.