RAJA SAEED AKRAM KHAN, J. --- Supra titled appeals have arisen out of the single judgment of the Shariat Court of Azad Jammu & Kashmir, dated 30.12.2011, therefore, we are intended to dispose of the same through this consolidated judgment.
2. The above titled appeals have been filed against the judgment of the Shariat Court of Azad Jammu and Kashmir dated 13.12.2011, whereby, while partly accepting the appeal filed by Jawad Ayoub, complainant-appellant, the sentence of life imprisonment awarded by the Trial Court to Muhammad Farid accused is enhanced to death sentence, whereas, the sentence of life imprisonment awarded to Muhammad Tasleem accused is maintained.
3. FIR No. 345 of 2004, was registered at police station Kotli, under Section 17(4) of the Offences Against Property (Enforcement of Hadood) Act; 1985 (hereinafter to be referred as EHA), on the complaint made by Muhammad Tasleem, accused. During the course of investigation Muhammad Tasleem, Muhammad Farid and Sadaqat Hussain were implicated and arrested for the murder of Professor Dr. Muhammad Ayoub, Principal, Al-Ghazali College, Kotli. After completion of investigation the challan under Section 17(4) EHA, 34, APC and 13 of Arms Act; 1965, was presented before the District Criminal Court, Kotli. After completion of trial the District Criminal Court Kotli, found the accused guilty of the alleged offences and awarded the following sentences, vide its judgment dated 30.10.2004:-
(i) Life imprisonment under Section 302(b), APC;
(ii) 10 years' rigorous imprisonment alongwith fine of Rs. 20,000/- each, under Section 394, are and
(iii) Muhammad Farid convict was also awarded two years' simple imprisonment under Section 13 of the Arms Act, 1965 and in case of nonpayment of fine the accused was to undergo a sentence of 6 months' simple imprisonment. Convicts were also extended the benefit under Section 382-B, Cr.P.C.
Convicts were also extended the benefit under Section 382 B, Cr.P.C. Feeling aggrieved from the judgment of the District Criminal Court, Kotli, the complainant as well as the convicts filed separate appeals before the Shariat Court of Azad Jammu and Kashmir. The learned Shariat Court vide impugned judgment partly accepted the appeal filed by the complainant and enhanced the sentence of life imprisonment awarded to Muhammad Farid into death sentence, whereas the sentence of life imprisonment awarded to the other convicts has been maintained. Against the aforesaid judgment of the Shariat Court the instant appeals have been filed.
4. Barrister Humayun Nawaz Khan, Advocate, the learned counsel for the accused argued that the judgments of both the Courts below are against law and facts of the case. He added that this is not a case of direct evidence. The whole case is based on the circumstantial evidence which is one of the weakest type of evidence and same cannot be relied upon without strong corroboration. He added that prosecution failed to prove the case. The chain of the facts is broken, therefore, on the basis of such-like evidence, capital punishment cannot be awarded. He added that this is a case which was not witnessed by any person and is itself a blind murder, but both the Courts below while ignoring the principle of law laid down by the Superior Courts, awarded the capital punishment of death and life imprisonment, respectively. He further added that prosecution failed to prove the case under Section 17(4), EHA therefore, the whole case becomes doubtful. He argued that it is a recognized phenomenon of law that a slightest doubt must go to the accused being a favourite child of law. He maintained that out of 18 prosecution witnesses, only 15 were examined and 3 were left out. He added that the Trial Court as well as Shariat Court relied upon the statement of accused Sadaqat Hussain, recorded under Section 164, Cr.P.C. Without adhering to the fact that the same was recorded When the accused was in police custody. He added that in this way the relevant provisions of Section 164, Cr.P.C., have been violated. He further added that while recording the statement under section 164, Cr.P.C., the mandatory question were not put to the accused. The learned counsel drew the attention of this Court towards the statement of Sadaqat Hussain, accused available at page 40 of the Trial Court and argued that the same was recorded on oath which is not permissible under law. He further added that such-like statement has no value in the eye of law, therefore, the same cannot be relied upon. He contended that while recording the statement under Section 164, Cr.P.C. The requisite procedure has not been followed, therefore, that statement is not believable. The statement was recorded after delay of 9 days which is fatal for the prosecution but all these aspects have totally been ignored by the Shariat Court while passing the impugned judgment. He further added that another piece of evidence which was relied upon by the Court below, is extra-judicial confession which is also a weak type of evidence. He further contended that the owner/Managing Director of the College being employer was so influential that the accused, Muhammad Tasleem constrained to make the alleged extra-judicial confession for the murder of Dr. Professor Muhammad Ayoub Khan. He further added that recovery of pistol is also fake one and same has been planted, as in the report of Forensic Science Laboratory, no number of pistol is mentioned which makes it doubtful. The recovery was fake in nature and such-like recovery cannot made basis for capital punishment. He further contended that the statements of prosecution witnesses under Section 161, Cr.P.C. Were also recorded after a long delay, which also creates a dent in the story of the prosecution. He argued that the prosecution badly failed to prove the case of Qisas, therefore, the punishment of Tazir cannot be awarded. He further argued that according to the prosecution story, bloodstained clothes of the accused were recovered but no report of Serologist was placed on the record. He submitted that there are glaring contradictions in the statements of PWs and Tazkia of witnesses was also not conducted. He further submitted in the cases involving the death penalty, the standard of proof must be above doubt. He added that one Saqib Nisar, who allegedly gave pistol to the accused was also not brought in picture which itself shows that investigation is based on mala fide and same has been conducted defectively. He further added that site-plan is also not reliable as the same itself shows that occurrence has not taken place in the manner as narrated by the prosecution. He argued that the witnesses produced by the prosecution are interested as they are closely related to the deceased: He further argued that in alternative if the Court comes to the conclusion that the accused have not made out a case for acquittal then in alternative, the death penalty awarded by the Shariat Court to one of the accused may be set-aside and converted into life imprisonment as the evidence collected by the prosecution is not of such a standard to award such an extreme penalty. He relied upon the different references from Islamic Books namely, Qisas & Diyat, Hadood Laws and Tazirat Islam. He has further relied upon the cases reported as Muhammad Younus v. The State [2008 P.Cr.LJ. 507], Qurban Ali and another v. The State [2007 P.Cr.LJ. 675], Muhammad Pervez and others v. The State [2007 SCM R 670], Abdul Latif v. State [PLJ 1999 S.C. 264], Dilbar and another v. The State [PLD 1994 F.S.0 24], Alla Muhammad v. The State [NLR 2008 Criminal S.C. 274], Muhammad Israr and another v. The State [2002 P.Cr.LJ. 1072], Haq Nawaz v. The State [1999 P.Cr.LJ. 1381], Babar Taj v. The State [2008 P.Cr.LJ. 1075], Muhammad As/am v. Sabir Hussain and others [2009 SCM R 985], Abdul Satter v. The State [2008 M LD 619], Abdul Malik v. The State [PLD 1996 F.S.0 1], Daud Jan and 2 others v. The State [1994 P.Cr.LJ 314], Bashir and 3 others v. The State [1993 SCM R 133] and Muhammad Bashi v.
Khalid Mehmood and another [1994 SCM R 1096]. He lastly argued that the prosecution failed to alleged a specific motive and also failed to prove the motive as narrated in the FIR, therefore, the prosecution story could not be believed.
5. Mr. Abdul Majid Malick Advocate, the learned counsel for the complainant has strongly opposed the arguments advanced by the learned counsel for the accused. He argued that the judgment of the Shariat Court is perfectly legal to the extent of Muhammad Farid, accused as the same has been passed after thorough examination of the evidence available on the record, whereas to the extent of other accused it needs modification. He further added that it was pre-planned occurrence which has been committed to pursuance of common object. All the accused were found guilty during investigation of the case and prosecution has proved the case beyond reasonable doubt while adducing the strong piece of evidence which cannot be brushed-aside. He referred to the contents of F.I.R. While arguing that Muhammad Tasleem, the complainant in the F.I.R. Who was later on implicated as main accused has himself narrated and admitted all the facts, therefore, in this situation there was no need to produce any other sort of evidence. He further added that although, it is a case of circumstantial evidence but the prosecution has proved the case without any unbroken chain of facts and defence failed to negate the same. He submitted that the statement of Jawad Ayoub, the real son of the deceased to the effect that before visit to Asghar Sharif, he saw all the three accused sitting in the college building, itself shows that the accused acted in furtherance of their common intention. He further submitted that recovery of bag and other articles belonging to the deceased from the accused also shows that the intention of the accused was to get the money lying in that bag. He contended that the participation of the accused to the commission of offence is above doubt. All the three accused are residents of the same area; one is the Watchman of the college; the other is a plumber by profession and; third one is a driver. Except, Muhammad Tasleem, accused the other two accused arrested by the police when they were taking rest after commission of offence at their residence. He contended that no enmity have been brought on the record to falsely implicate the accused. He further contended that mere non-mentioning the number of pistol, the report of Forensic Science Laboratory, does not make the recovery doubtful as the same was duly recovered in the presence of the witnesses and the same was dispatched to Forensic Science Laboratory, alongwith empties which were recovered on the very next day of occurrence. He further added that the report of the Forensic Science Laboratory shows that the recovered empties were fired from the same pistol which was sent to the Forensic Science Laboratory. There is nothing on the record from which it could be ascertained that the pistol sent to the Forensic Science Laboratory was not the pistol which was recovered from the accused. Moreover, the defence failed to establish that the parcel prepared at the time of recovery of pistol was opened before sending the same to the Forensic Science Laboratory, whereas the record shows that the parcel prepared at the time of recovery of pistol and the empties were dispatched to the Forensic Science Laboratory Lahore, without any delay.
While meeting the argument advanced by the learned counsel for the accused that no identification parade was held, as according to the prosecution version at the time of occurrence accused were wearing the masks on their faces, submitted that it is the matter of record that all the accused were seen sitting in the lawn of the college building by the son of the deceased, who had gone to Kotli, to visit Aghar Sharif. At the time of arrest of the accused they were identified by the son of the deceased, therefore, there was no need to hold a separate identification parade and this fact has also not been denied by the accused that they were seen by the son of the deceased, sitting together in the lawn of college building. He further added that Mian Muhammad Akram, the owner/Managing Director of the College, was an impartial person. Being his boss Muhammad Tasleem accused, the watchman of the college, disclosed the commission of occurrence before him, who immediately reported the matter to the concerned police station, whereupon the complainant/accused, Muhammad Tasleem was arrested. He further added that even this part of evidence was never challenged by the prosecution during cross-examination and no suggestion in this regard was made. He further maintained that the argument of the learned counsel for the accused that the statement of the accused Sadaqat Hussain recorded by the Magistrate on oath which is against the provision of relevant law, has no force. Mere writing the word f,l,QJ1)q [(Urdu Text)] does not mean that the statement has been recorded under oath. For recording the statement under oath, a special procedure has been provided under Oaths Act, therefore, this Statement cannot be treated as statement under oath. He further argued that the statement recorded under Section 164, Cr.P.C., has not been retracted or the authenticity of the same has not been denied by the accused, as he has admitted during recording his statement under Section 342, Cr.P.C. That he had recorded his statement under Section 164, Cr.P.C. He further contended that signature of Muhammad Tasleem, accused, on the F.I.R. And on the statement recorded under Section 242, Cr.P.C., are the same, therefore, it cannot be said that he did not get his statement recorded, even no suggestion was made in this regard. Therefore, this piece of evidence cannot be ignored. He submitted that no delay was caused while recording the statement of the accused under Section 164, Cr.P.C. As soon as the accused shown desire to get recorded his statement before the Magistrate, he was produced immediately before the Magistrate. He argued that all the chains are interlinked and no link has been broken, therefore, both the Courts below has rightly appraised the prosecution evidence in the settled norms of justice. He lastly argued that mere relationship is not sufficient reason to discard the evidence of a witness who is otherwise impartial and has no against the accused and the statement of such-like witness can safely be relied upon.
The learned counsel relied on the cases reported as The State v. Mst. Falawat Jan and another [1992 SCR 366], Zulfiqiar Ali v. The State [1993 P.Cr.LJ. 168], Haji Khan and 2 others v. The State [1991 P.Cr.LJ. 2110].
6. The learned Additional Advocate General adopted the arguments advanced by the learned counsel for the complainant and submitted that all the aspects of the case have been attended by both the Courts below and well-reasoned judgments have been delivered, therefore, no illegality and infirmity is available in the impugned judgments.
7. Arguments have been heard and the judgment impugned before this Court has been perused alongwith record with the able assistance of the learned counsel for the parties. The case was registered on the complaint of one, Muhammad Tasleem, who was Chowkidar of Al-Ghazali College, Kotli that on the fateful day he was sleeping outside the room, where the deceased namely, Dr. Professor Muhammad Ayoub was sleeping, when two persons with muffled faces wearing black clothes entered in the building. One of them was armed with pistol, whereas the other was empty handed who demanded to handover whatever he had: On this, Dr. Professor Muhammad Ayoub Khan, deceased, came out of the room who gave Rs. 300/- and keys to the accused while stating to take away whatever they want. On this the person armed with pistol hit on his head and the deceased fell down and succumbed to the injury on the spot. While leaving the building, they took away the small bag of the deceased. As the case is based on the circumstantial evidence, which is a weakest type of the evidence. Although, law does not bar to convict an accused on the basis of circumstantial evidence and even a capital punishment can also be awarded, provided that in a case resting on a circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. However, the circumstantial evidence can only form basis for conviction when it is incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of the guilt of accused and if no link in the chain found missing, the circumstantial evidence can be safely relied and conviction could be recorded on the basis of that. Reliance can be placed on a case reported as Muhammad Latif Butt v.
Shehtab & 4 others [2009 SCR 432] wherein it was observed as under:- "No doubt the conviction can be recorded on the basis of circumstantial evidence in the absence of direct evidence because a man can tell lie but circumstance never tell lie. The conviction can only be based on circumstantial evidence, if it excludes, all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible of any other hypothesis than that of guilt of the accused."
Although, the appreciation of evidence is a job of the Trial Court, who has'done its job intelligently, however, for our own satisfaction we are intended to scrutinize the evidence made available, while keeping in view the principle laid down by the Superior Courts in the cases involving the circumstantial evidence.
8. The first argument established by the learned counsel for the accused-appellants is that the case was registered under sections 17(4) EHA read with Section 13 of Arms Act, 1965 and 34, APC, and the prosecution badly failed to prove the case of Harraba, therefore, punishment under 'Tazir' could not be awarded. We are afraid that this argument is not available, as the same is not based on any law. No law prohibited the Court to convict the accused under Tazir against whom the Nisab of Qisas was not available. The judgment i.e., Dilbar and another v. The State [PLD 1994 F.S.0 24] on which the learned counsel for the accused has heavily relied, is not applicable as the facts of that case are quit distinguishable. Even otherwise, no such finding has been recorded by the Court in this regard that if a case is not proved under Qisas then the punishment of Tazir cannot be awarded, therefore, this argument is not convincing and the same is repelled.
9. While attending next limb of the arguments that at the time of occurrence, the accused allegedly were muffled the faces, therefore, identification parade was necessary and in absence of that punishment cannot be sustained, it may be stated that from the record it reveals that while recording statement by Jawad Ayoub, the real son of the deceased has categorically stated that on the fateful day of occurrence before proceeding to Aghar Sharif, he visited his father, where he found sitting all the accused in the lawn of the college building and this fact has not been denied by the defence. It is further stated by the Jawad Ayoub, that when he reached the police station, he identified the accused who met him in the lawn of the college building. The relevant portion of his statement is reproduced as under:- [(Urdu Text)])
In this state of affairs, when the accused were seen together before the occurrence, the identification parade was not the requirement of law as such the identification parade would lose its significance being not a corroborative piece of evidence. Reliance can be placed on a case reported as ldrees v. State [2002 SCM R 1439], wherein it has been observed as under:- "11. At this stage, we are also of the view that as the assailants were known to the complainant and were identified on the spot, as admitted by Yasin complainant, the conduct of identification parade is totally illegal. The identification parade is never conducted about culprits who are already known to the witnesses. The identification parade loses significance and is not a corroboratory piece of evidence, in the circumstances."
10. After coming through the above-said portion of the statement of Jawad Ayoub, it is crystal clear that PW has seen the accused and glimpse of the accused was in his mind, therefore, he immediately identified the accused at police station. In these circumstances, there was no need to hold the identification parade, therefore, this argument has no force.
11. Now we advert to the next argument regarding authenticity of the statement, recorded under Section 164, Cr.P.C. The learned counsel argued that the requisite procedure has not been adopted while recording the statement, therefore, the statement of the accused Sadaqat Hussain, recorded under Section 164, Cr.P.C., cannot be treated as a confessional statement. It was that the accused has retracted the Statement later on, therefore, such-like retracted confessional statement cannot be made the basis for conviction. It may stated that we have examined the statement recorded under Section 164, Cr.P.C. All the relevant questions were put to the accused at the time of recording his statement and nothing is on record that at the time of recording the statement the accused was handcuffed. Admittedly, he was brought from the jail for recording his statement, therefore, it cannot be said that the same has been recorded in police custody. The argument of the learned counsel for the accused-appellants regarding the delay, in recording confessional statement is concerned, from the record he failed to substantiate that any such delay has been occurred. When the accused was produced before the Magistrate on the same day, his statement was recorded. Even otherwise, this was upto the accused as when he has shown his desire recording the confessional statement, he was produced before the Magistrate. Therefore, we failed to find out any illegality or the violation of law while recording the statement under Section 164, Cr.P.C. Argument of the learned counsel that retracted confessional statement cannot be relied upon, is also ill founded, as the accused while making his statement under Section 342, Cr.P.C.
Categorically stated that his statement under Section 164, Cr.P.C. Was recorded. The relevant portion of his statement recorded under Section 342, Cr.P.C., is ns under:--- [(Urdu Text)] It cannot be said that confessional statement was retracted as the accused has himself admitted the recording of confessional statement. Therefore, we are not convinced with the argument advanced by the learned counsel in this regard.
12. Next limb of the arguments of the learned counsel for the accused regarding recovery of pistol is that in the report of Forensic Science Laboratory, no number of pistol has been mentioned, therefore, it cannot be said that the pistol sent to the Forensic Science Laboratory was the same which was used in the occurrence. We have examined the record with utmost care. The relevant portion of recovery memo. Is reproduced under:- [(Urdu Text)] C.O CAL. 30 MAUSER MAD A. SCHINA BY NORIN After going through the afore-mentioned recovery memo. It reveals that at the time of recovery of fire-arm i.e. Pistol, the number engraved on the pistol was very much clear and the same number was mentioned in the report Fard-Magbuzgi. The defence could not substantiate that the parcel prepared at the time of recovery was opened before sending to the Forensic Science Laboratory.
Empty was also recovered from the spot on the very next day and the report of Forensic Science Laboratory in this regard is positive in nature which is reproduced as under:--- "The crime empty of .30 bore marked as C was examined and compared with test empties prepared from the pistol of .30 bore body signed and it was concluded that the crime empty of .30 bore marked as C HAD BEEN FIRED from the pistol of .30 bore body signed.
2. The pistol of .30 bore body signed is in working order and fires Semi-Automatically in its present condition.
The points of similarity observed on crime empty and test empties prepared from the pistol of .30 bore:---
(i) The formation of strikes dip is similar in C and T.
(ii) The formation of the walls of s.Dip is similar in C and T.
(iii) Depressed area inside s.Dip is similar in C and T.
(iv) The angle of strikers dip is similar in C and T.
(v) Breech face marks are also the similar in C and T.
NOTE:- Test empty is being sent in the parcel of the pistol."
13. According to the report of Forensic Science Laboratory the bullet was fired from the same pistol which was sent to the Chemical Examiner, therefore, there is no ambiguity in our mind that recovery was not made in accordance with law. Mere non-mentioning the number of pistol in the report of Forensic Science Laboratory does not make it doubtful, therefore, this argument is misconceived as the same is against the record.
14. Furthermore, the recovery of bag from the accused on their pointation from the residence where they were residing, is a strong piece of corroborative evidence, as the articles which were recovered from their possession belong to The deceased, like, I.D. Card, Service Card and Rs.
16,000/-. Even otherwise, the accused, Muhammad Tasleem who was originally became the complainant of the case and later on implicated as main accused on the statement of Mian Muhammad Akram, Managing Director of Al-Ghazali College, before whom he made the extra- judicial confession regarding occurrence, has narrated the whole story of the occurrence in the F.I.R. While putting his signature. We have also compared the signature of accused, Muhammad Tasleem, put on the F.I.R. And the statement recorded under Section 342, Cr.P.C., both are the same in nature. Therefore, we are convinced with the argument advanced by the learned counsel for the complainant that he has admitted the occurrence while narrating the true story. The articles which were taken away by the accused at the time of occurrence were recovered from the possession of the accused. Moreover, the co-accused are also the resident of the same vicinity and were arrested from their residence where they were sleeping after the occurrence.
15. While attending the argument regarding the confessional statement that the same was made before the person who was the boss of Muhammad Tasleem, accused, therefore, the same cannot be relied upon, it may stated that Mian Muhammad Akram who was the Managing Director of the College has categorically stated in his statement that on next day of the occurrence when he came to his office, he inquired from Muhammad Tasleem about the occurrence as he was Chowkidar and at the relevant time he was sleeping outside the room, where Muhammad Ayoub Khan deceased was sleeping. It is also admitted position that accused Muhammad Tasleem and deceased were residing in the same building. Being Managing Director of the College, it was natural to inquire from concerned person, therefore, we also failed to find out any justification to make the false statement to implicate Muhammad Tasleem, as there is nothing on the record that there was any against the accused. There is no allegation against Mian Muhammad Akram. In our estimation he was totally an impartial person and also holding such a position that he could help the accused for getting pardon from the legal heirs of the deceased. In these circumstances, this piece of evidence cannot be ignored lightly.
16. The investigation took a new turn on the statement of Mian Muhammad Akram who immediately after disclosure/extra-judicial confession, made by Muhammad Tasleem informed the police to apprehend him and on his information the other two accused were arrested. Another strong corroborative piece of evidence is recovery of the clothes of the accused. According to the contents of the FIR, at the time of occurrence accused were wearing black clothes and the clothes were stained with blood. Although, the report of Serologist is not on record, however, neither defence raised any such objection in this regard nor they made any suggestion. Even otherwise, it was not the case of defence that the accused were not wearing black clothes at the time of occurrence, therefore, absence of the Serologist report makes no difference.
17. Another argument advanced by the learned counsel for the accused-appellants is that the site- plan shows that occurrence has not taken place in the manner as stated by the prosecution. It is a settled principle of law that site-plan is not substantive piece of evidence and the same can be ignored in the presence of other evidence.
18. Another argument made by the learned counsel for the accused-appellants is regarding the statement of PW's recorded before the Court under path while referring to the word [(Urdu Text)]. It may stated that it is the general practice prevailing in the Courts that while recording all the statements the word [(Urdu Text)] is generally used. It does not mean that the statement is being recorded on oath. For recording of a statement on oath a special procedure has been provided in the relevant law. Mere mentioning of word does not make the statement to have been recorded on oath, therefore, this argument has also no force and the same is hereby repelled.
19. Reference i.e., report of Islamic Ideology Council and other references from the different books cited by the counsel for the accused have no bearing on the case in hand, therefore, the same are not helpful to the accused.
20. Another argument of the learned counsel for the accused is that the prosecution witnesses are related to the deceased, i.e., Jawad Ayoub is real son of the deceased, therefore, these related witnesses cannot be relied upon for awarding the capital punishment. In our estimation, relationship per se is no ground for discarding the evidence of related witnesses. This is now settled that the evidence of a related witness can be relied upon if the same rings true. This Court in an unreported judgment titled Muhammad Siddique v. Muhammad Altaf & another (criminal appeal No. 8 of 2008, decided on 29.03.2013), while following the principle of law enunciated in the case reported as Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1] held as under:--- "Although, in support of motive the prosecution witnesses appear to be inter se related but their statements cannot be discarded on this ground alone as the fact of the strained relationship between the spouses was only known to the relatives. In view of the fact we are convinced that motive behind the occurrence was the same which was narrated by the aforesaid prosecution witnesses. This view is supported by a case reported as Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1], in which it has been observed as under:- "22. The relationship is no ground for discarding evidence of the witnesses unless and until their enmity with the accused is established. The statements of both the witnesses find corroboration from the postmortem report. According to post-mortem report, Mst. Farzana Bibi sustained fire- arm injuries. Moreover, the respondent fired from near in the mouth of Mst. Farzana Bibi. Therefore, the distance mentioned by the doctor from which the bullet was fired also corroborates the version narrated by both the aforesaid witnesses."
21. We would also like to meet the argument regarding the non-implication of one Saqib Nisar, as accused who allegedly given the pistol to the accused. From the record it appears that he joined the investigation and his statement was also recorded. The only allegation against him was that he has given the weapon of offence to the accused, however, nothing is on record that he also participated in the commission of offence or played any role in the occurrence. Therefore, the prosecution has rightly not implicated him as accused.
22. After examining the evidence produced by the prosecution and version taken by the accused as we have observed above that although the case is based on circumstantial evidence and for conviction the chain of links must be interlinked and unbroken. In this case the first link connected with the chain is extra-judicial confession made before Mian Muhammad Akram, who is found to be an impartial person and who was the Managing Director of College. The accused, Muhammad Tasleem, has rightly chosen him to make the extra-judicial confession, as Mian Muhammad Akram was in a position to get the pardon for the accused from the legal heirs of the deceased, as has been stated by the accused in his statement that Mian Muhammad Akram has given him the assurance that in case the accused narrates the true facts, Mian Muhammad Akram will become helpful to him. On the disclosure of Muhammad Tasleem, Mian Muhammad Akram, immediately informed the police, who arrested Muhammad Tasleem and on his information other two accused were apprehended, during the course of investigation.
23. The other link of the involvement of the accused is confessional statement recorded by Sadaqat Hussain accused, as we have observed that nothing has come on record that any provision of law has been violated while recording the statement under Section 164, Cr.P.C. The other strong ring of the chain is recovery of pistol. According to the report of Forensic Science Laboratory, the empties were fired from the same pistol which was recovered from the accused.
Moreover, another ring of the chain is recovery of bag alongwith cash and other articles belonging to the deceased, which is one of the strong corroborative piece of evidence. Moreover, the son of the deceased Jawad Ayoub, identified the accused to whom he had met before proceeding to Agar Sharif All these links lead us to the conclusion that all the three accused hatch a conspiracy to snatch the money from the deceased. Recovery of the black clothes, stained with blood, is also another strong corroborative piece of evidence, which cannot lightly be ignored. Moreover, .The accused at the time of recording their statements under Section 342, Cr.P.C., while replying to the query as to why this case was registered against them, offered no explanation except that the case has falsely been made against them. They did not opt to record their statements under Section 340(3), Cr.P.C. Even they have not produced any evidence in defence. Admittedly, all the three accused were residing in the same vicinity. Muhammad Tasleem, accused who was admittedly the Chowkidar of the college and his services were hired for the safety of the persons, but he failed to perform his duty. The accused himself admitted while recording F.I.R. That on the fateful day he was sleeping in the gallery outside the room where the deceased was sleeping. All these facts are interlinked. The defence has been failed to disconnect any of such links, which is the pre-requisite for not awarding the sentence on the basis of the circumstantial evidence.
24. In this state of affair, we are fully convinced that the prosecution has successfully proved the case against the accused and both the Courts below have rightly appreciated the evidence brought on the record while recording conviction. The Trial Court after examining the prosecution evidence awarded the life imprisonment to the accused, whereas, the Shariat Court enhanced the life imprisonment awarded to Muhammad . Farid, accused to death penalty.
25. As we have observed that no direct evidence is available in this case and the prosecution has produced the strong corroborative evidence. One of the accused namely, Muhammad Tasleem was the real character in all the episodes, as he was an employee of the College, where the occurrence took place and in the result of which principal of that college was murdered. Although, at the time of occurrence he was not armed with any weapon, however he was the person who hatched all the conspiracy with his companions but after examining the whole evidence the Trial Court awarded him life imprisonment, whereas the co-accused who was also awarded life imprisonment but in appeal filed by the complainant his life imprisonment was converted into death. In our estimation, the standard of evidence which is required for awarding death penalty in the cases based on circumstantial evidence, is not available in the case in hand, therefore, it is not safe to maintain the capital punishment of death awarded to Muhammad Farid, accused on the basis of the evidence brought on record. Our this view finds support from an un-reported judgment of this Court in a case titled Muhammad Siddique v. Muhammad Altaf & another (criminal appeal No. 8 of 2008, decided on 29.03.2013) wherein it was observed as under:- "What has been discussed above, after scanning the evidence/record of the case, we are of the considered view that the involvement of the accused-respondent in the murder of his wife cannot be ruled out. However, the prosecution was unable to produce direct evidence and the case hinges on the circumstantial evidence. Although, the links of evidence are inter-connected, however the standard of evidence to award the capital punishment is not available on the record. We are fortified in our view by a case titled Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1] wherein it was observed as under:--- "39. It will be useful to mention here that in the instant case the accused was acquitted from the Shariat Court and he is at liberty after the pronouncement of judgment of the Shariat Court, therefore, he has developed an expectancy of life. It is well-settled principle of law that no extreme penalty should be awarded to a person who has developed an expectancy of life. Therefore, it would not be safe and just to award the sentence of Qisas or death to the respondent..."
We are inclined to modify the judgment of the Shariat Court and convert the death sentence awarded to Muhammad Farid, accused into life imprisonment, whereas, all the other sentences awarded to the accused are maintained. The benefit of Section 382-B, Cr.P.C., shall remain available to the accused.
So far the appeal filed by the complainant is concerned, as we have already converted the death sentence into life, therefore, we do not intend to enhance the sentence to the extent of other accused. As we have observed that Trial Court as well as first Appellate Court has rightly appreciated the evidence while awarding the sentence, therefore, this appeal is dismissed having no force.