Zafarullah Khan Khakwani, J.--Basharat Khan, appellant alongwith Dilwar Khan, co-accused was tried by a learned Additional Sessions Judge, Attock in a private complaint filed by Haji Lal Khan complainant and in case F.I.R. No, 215 dated 13.09.2007 under Section 302, P.P.C. Lodged by the said complainant at Police Station Pindi Ghaib of District Attock. At the conclusion of trial the learned Additional Sessions Judge vide judgment dated 30.05.2009 convicted Basharat Khan, appellant under Section 302(b), P.P.C. And sentenced him to death. The learned trial Court also directed him to pay compensation of Rs, 1,00,000/- under Section 544-A, Cr.P.C. To the legal heirs of the deceased or to undergo six months R.I. His co-accused, namely, Dilawar was acquitted of the charge.
2. Feeling aggrieved of the above conviction and sentences, Basharat Khan, appellant has filed Cr.
Appeal No, 216 of 2009. The State has also approached this Court by way of Murder Reference No, 91 of 2009 seeking confirmation of sentence of death awarded to Basharat Khan, convict. Haji Lal Khan, complainant has also filed Cr. Revision No, 120 of 2009 seeking enhancement of compensation to the legal heirs of the deceased by the convict, He has also filed Cr.P.S.L.A. No, 17 of 2009 calling in question acquittal of Dilawar Khan accused. All these inter connected matters are being decided together through this single judgment.
3. Occurrence in this case took place on 13.09.2007 at 7.30 p.m. In front of shop/oil agency of the deceased situated at Kharpa Chowk in which Abdul Razziq, a cousin of Haji Lal Khan, complainant was murdered and the matter was reported to police by the complainant through statement (CW- 1/B) at 9.00 p.m. On the basis of which F.I.R. No, 215/2007 (Ex.CW-4/A) was registered at Police Station Pindi Ghaib of Distt. Attock. After investigation challan was submitted in Court but feeling dissatisfied with the quality of investigation the complainant filed a private complaint in the Court of learned Sessions Judge, Attock. Trial in the present case is result of challan as well as complaint case.
4. The complainant alleged in the complaint Ex-PD that on 13.09.2007 he was informed by Muhammad Hafeez-ur-Reliman (PW.4) that his (complainant's) cousin (Chacha Zad) Hafiz Abdul Raziq had been murdered by some unknown persons. Upon this, both of them reached Kharpa Chowk and saw the dead body of Abdul. Raziq pooled in blood, He left Muhammad Hafeez-ur- Rehman and Muhammad Imran Sajid with the dead body and himself proceeded to the police and got the case registered against unknown culprits.
5. The complainant alleged in the complaint that police visited the spot, took into possession blood stained earth and crime empties of Kalashinkov and also conducted formal investigation; that in the meanwhile, Shaukat Ali (PW.3) and Nawab Khan (given up) met him and told that they were coming from Pindi Ghaib when on the way they saw Basharat Khan (appellant), Dilawar Khan and Ishtiaq Ahmad armed with kalashnikovs going on a car Bearing No, IDE/4008 and when they reached Kharpa Chowk they came to know about murder of Abdul Raziq. The complainant produced the said PWs before the Investigating Officer who recorded their statements and after conducting formal proceedings dispatched the dead body to the mortuary for autopsy.
6. The complainant further alleged in the complaint that on 14.09.2007 Abdul Qadoos and Noor Muhammad (PWs. 1 & 2) informed him that on 13.09.2007 at 7.30 p.m. They were present in their shops near the place of occurrence when they heard report of fire shots from the agency of Abdul Raziq, deceased and ran towards the said place and saw the appellant alongwith his co-accused standing there whereas Abdul Raziq fell on the ground in injured condition. The accused persons hurled threats to PWs not to inform anybody otherwise they would also be dealt with in like manner and thereafter left the place of occurrence in the car described above. The complainant produced these PWs also before the Investigating Officer, who recorded their statements. The story of the complaint proceeds that the police arrested Dilawar Khan and Basharat Khan on 23.12.2007 and Basharat Khan during interrogation made disclosure and then led to the recovery of a Kalashinkov from his house which was taken into possession and was sent to the office, of Forensic Science Laboratory and as per report of the Laboratory the crime empties recovered from the spot had been fired from the said weapon. The police also took into possession car allegedly used in the commission of crime.
7. The complainant claimed that on 05.12.2007 Imran Sajid and Muhammad Jan PWs informed him that parents of Basharat Khan, appellant had visited them and disclosed that the appellant along with his co-accused had committed murder of Abdul Raziq and they should help them to get pardon for Basharat Khan from legal heirs of the deceased and to effect a compromise. The complainant also produced these witnesses before the Investigating Officer who recorded their statements. It was claim of the complainant that when challan was submitted, the complainant came to know that the police had not recorded correct statements of the witnesses and had spoiled his case as such complaint was filed. The complainant further alleged that in order to spoil his case, the police also arrested three other persons but on the protest of the complainant, the said persons were got discharged.
8. At the commencement of trial, the appellant along with his co-accused was charge sheeted.
They denied the charge and claimed trial. At trial, the complainant produced seven witnesses out of which Abdul Qadoos, Noor Muhammad and Muhammad Shaukat Ali, PWs. 1 to 3 provided evidence of waj-takar, Muhammad Hafeez-ur-Rehman who informed the complainant about murder was produced as PW. 4 and the complainant himself appeared as PW.
7. The trial Court also summoned nine persons as CWs. At the close of prosecution evidence, the accused were examined under Section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence arid, attributed their involvement due to political rivalry. At the conclusion of trial, learned trial Court convicted the appellant and acquitted his co-accused as noted above.
9. Learned counsel for the appellant submits that the impugned conviction and sentence is against the law and facts. He submits that it was a case of circumstantial evidence, admittedly, nobody had seen the occurrence, the complainant had clearly mentioned that he was informed by PW. 4 about murder of his cousin and the F.I.R. Was lodged in the same lines; that the police could not get' clue of the culprits and even arrested a set of other accused persons but they were not found involved and as such they were let off; that the complainant fabricated a false case against the appellant by manoeuvering evidence of Waj Takr after a lapse of more than two and a half months which was full of discrepancies and as such was not worthy of trust. Learned counsel further argues that there are material contradictions between the statements of the witnesses inter se; that no motive for the occurrence has been alleged against the appellant and halfheartedly it was tried to make out a case of robbery but nothing had been robed from the shop of the deceased nor anything had been recovered from the appellant and the alleged recovery of kalashnikov was a planted one; that there are number of improvements in the statements of the witnesses at trial but the learned trial Court did not properly appreciate the same and has convicted and sentenced the appellant on the basis of conjectures and surmises and as such the impugned conviction is liable to be set aside and the appellant deserves acquittal.
10. On the other hand learned Law Officer assisted by learned counsel for the complainant has forcefully defended the impugned conviction and sentence on the ground that the occurrence took place at 7.30 p.m. In the month of September when it was not so dark and even otherwise there was light available at around the place of occurrence as the place of occurrence was surrounded by shops; that Abdul Qadoos and Noor Muhammad PWs. Were having their shops close to the place of occurrence and as such their presence at the relevant time at the place of occurrence was natural; that there was no previous enmity between the parties as such there was no occasion for the complainant to falsely involve the appellant without any reason leaving the real culprits and that the police collected crime empties of kalashnikov from the spot at the time of spot inspection which were sent to the Forensic Science Laboratory much before arrest of the appellant and after arrest, the appellant got recovered a kalashnikov which was also sent to the said laboratory and according to the report of the laboratory said crime empties had matched with the kalashnikov recovered from the appellant and this was a strong piece of evidence to connect the appellant with the commission of crime and that it was a fool proof case established against the appellant as such he was rightly convicted and sentenced by the learned trial Court and instant appeal merits to be dismissed and Reference merits to be answered in affirmative.
11. Learned counsel for the complainant also submitted that the amount of compensation directed by the learned trial Court to be given by the appellant to legal heirs was not sufficient as such the same may be enhanced. He further submits that on the same evidence learned counsel convicted Basharat Khan but acquitted Dilawar Khan, respondent in the Cr.P.S.L.A. Who had also fully participated in the occurrence as such he be also punished in accordance with law.
12. We have heard learned counsel for the parties and have also gone through the record with their assistance.
13. Admittedly it was an unseen occurrence which took place in front of shop/oil agency of the deceased at about 7.30 p.m. Initially F.I.R. Was lodged against unknown persons. It was case of the complainant in his private complaint and at trial that immediately after the occurrence the appellant and his co-accused armed with kalashnikovs were seen by Abdul Qadoos and Noor Muhammad, PWs.1 & 2 near the deceased and they were also seen by Muhammad Shaukat Ali, PW.
3 and Nawab Khan (given up) while going in the car after commission of crime; that relatives of Basharat Khan, appellant approached Imran Sajid PW.5 and Jan Muhammad (given up) to help them to get pardon for the murder and that during investigation weapon of offence was recovered from the appellant but the police did of correctly record statements of his witness and spoiled his case. Thus the prosecution case mainly rests upon the evidence of Waj-Takr, extra judicial confession and recovery of weapon of offence i,e, kalashnikov from possession of the appellant.
14. This is an unseen occurrence and the prosecution case is built against the appellant on the basis of evidence of Waj Takar and extra judicial confession coupled with recovery of weapon of offence. After hearing arguments of learned counsel for the parties and also going through the record we have observed that time is essence, of this. Case which has got much importance. We analyze the evidence in this perspective.
15. In order to prove the evidence of Waj-Takr, the complainant produced Abdul Qadoos, Noor Muhammad and Muhammad Shaukat Ali, PWs. 1 to 3. Abdul Qadoos, PW.1 deposed at trial that he had set up a P.C.O. Near the place of occurrence where he was present at relevant time when he heard report of fire shots from the shop of the deceased and was attracted to the spot. He saw the appellant alongwith two co-accused armed with kalashnikovs standing at the place of occurrence while the deceased was lying on the ground in injured condition and that Noor Muhammad PW.2 also reached there. Noor Muhammad, PW.2 also corroborated him and justified his presence by deposing that he has installed saw machine near the place of occurrence. Both the PWs. Claimed that the culprits had threatened them not to disclose their names to anyone otherwise they would also be treated in like manner so after closing their shops they went to their homes without disclosing name of the assailants to anybody due to fear. Abdul Qadoos PW. Claimed that on the next day it was first of Ramadan, he remained under stress and as such he finally decided to disclose names of culprits so on the next day at Fajar prayer time he disclosed name of the culprits to the complainant. This P.W. Claimed that he did not open his P.C.O. On the said day being Friday and visited the place of occurrence after Jumma prayer and after Janaza of the deceased where police was present who recorded his statement. Same was stance of Noor Muhammad, PW. The complainant also verified this fact of information by these PWs. It is very strange that the complainant did not think it necessary to immediately inform the investigator or to produce these' witnesses before the police and withheld this material fact till arrival of the police at the place of occurrence after Jumma prayer. We have observed that Noor Muhammad PW.2 while under cross- examination claimed that the police had taken blood stained earth from the place of occurrence within his view. He thus tried to say that blood stained earth was taken from the place of occurrence on the following day of occurrence. It is .Available on record through statements of witness that blood stained earth was taken into possession by the investigator during his first spot inspection on the night of occurrence vide recovery memo. (Ex.PB) which was attested by Imran Sajid PW.
5. This circumstance shows that PWs. 1 and 2 or at least Noor Muhammad P.W. Remained available at the place of occurrence till arrival of the police and during spot inspection in the night of occurrence. As against this, Azam Khan, Sub-Inspector who had initially investigated the challan case entered the witness-box as CW.
9. He was cross-examined on behalf of the complainant.
During cross-examination he categorically denied having visited the place of occurrence on following day of occurrence i,e, 14.9.2007 what to say of recording statements of PWs. 1 and 2 or having taken into possession blood stained earth on the said day. So there is nothing on record to show that these PWs. Were under such fear that they did not disclose any person having seen the appellant/accused persons at the time of occurrence and as to what had prompted both these P.Ws. Simultaneously to disclose this fact to the complainant at Fajar time who also did not consider this information seriously and waited for the police till-its arrival after Jumma prayer.
Such a conduct of the complainant and these two P.Ws. Is more than strange and very strong other piece of evidence is required to corroborate the same. It may not be out of place to mention that in a case of circumstantial evidence, the microscopic examination of evidence is necessary to reach at a just conclusion. The manner these PWs. Disclosed a material fact and the manner in which the complainant informed the police does not inspire confidence and it appears that said piece of evidence was later on prepared and fabricated by the complainant.
16. The complainant also produced at trial Muhammad Shaukat Ali as PW.
3. He deposed that on the day of occurrence he. Along with Nawab was coming to Kharpa village from Pindi Ghaib on his tractor when they saw the appellant and his co-accused armed with kalashnikovs going in a car at Nala Soga and when they reached the place of occurrence they saw the deceased. They informed this fact to the complainant and that they joined investigation same night. During cross- examination he stated that call for Maghrib prayer was already observed when they started from Pindi Ghaib and that it takes half an hour to reach village Kharpa from Pindi Ghaib. He deposed that he was about half kilometer away from Kharpa Chowk when they crossed the car of the accused. He further claimed that it was 8.00 p.m. When they reached the place of occurrence. He stated that he had not installed extra lights on his tractor except that of head lights. He further claimed that lights of the car of the accused were also on when it crossed his tractor. He deposed that when he reached the place of occurrence, the complainant and many other persons along with police were already present there.
17. An analytical view of statement of this witness raises many quarries in one's mind, e.g. Firstly, in the night nobody can recognize in the light of tractor, a person who is going in a car especially when the lights of car are also on. Secondly, it is hardly to believe that an accused person while making an escape from the place of occurrence will drive car in such a slow speed, that he could be recognized by anyone who is coming from opposite side/sitting on a tractor.
18. Muhammad Hafeez-ur-Rehman, PW.4 deposed that on 13.9.2007 at about 7.40/7.45 p.m. He received information that Haflz Abdur Raziq was murdered upon which he informed Haji Lal Khan complainant and then both of them proceeded to the spot which took about 10 minutes and leaving him and Muhammad Imran Sajid at spot, the complainant went to report the matter to the police and thereafter police came at the spot. Time given by P.W. 4 is also verified by perusal of the statement made by the complainant to the police at Akhlas Chowk (Ex.CW.1/B) on the basis of which formal F.I.R. Was registered. This document bears signatures of the complainant and shows the time of making statement as 9.00 p.m. Meaning thereby that the complainant himself admitted having made statement to police at 9.00 p.m. Moreover Azam Khan, Sub-Inspector CW. 9 clearly stated that he reached the spot at 9.30 p.m. This clearly shows that when the complainant and police reached the place of occurrence, it was after 9.30 p.m. If claim of PW. 3 is admitted as correct that when he and Nawab Khan reached the place of occurrence the complainant and the police was already present there, then time was not 8.00 p.m. Rather it was after 9.30 p.m. It was claim of the complainant that Shaukat Ali PW.3 and Nawab Khan (given up) had informed him having seen the accused persons going in a car and he produced them before the police who recorded their statements. But Azam Khan, CW.9 claimed that though Shaukat Ali and others were also present at the place of occurrence along with many other persons but they did not make any such statement. This claim of the investigator gets support from the fact that on his arrival at the place of occurrence he prepared inquest report but there is no mention about any accused having been brought to notice of the investigator. It means that till that time the complainant or the P.Ws.
Did not know about the culprits. It may be mentioned here that it has come on record that during investigation of challan ease, Azam Khan, investigator also arrested other accused persons, namely, Tayvab, Ansar and Naveed on 12.11.2007 who were later on discharged on 19,11,2007 being not found involved in the occurrence. The complainant while under cross-examination admitted that he did not make any application to high ups of the police that the investigator was spoiling his case and that said persons (Tayyab, Ansarand Naveed) were not accused of his case. This circumstance shows that at least till 12.11.2007 the complainant party was not sure about the assailants. Had the witnesses of Waj-takar been produced before the investigator at early stage of the investigation then there was no reason for the police to arrest any other person as suspects and there must have been some kind of proceedings towards arrest of Basharat Khan appellant or his co-accused but there is nothing on record-to show that any such effort/raid was made. Rab Nawaz, Sub-Inspector appeared at trial as CW-8. During cross-examination, this witness stated that he examined the case file on 8.12.2007 when investigation was entrusted to him. He disclosed that till 8.12.2007 none of the, appellant or his co-accused was nominated or suspected in the case file. He further disclosed that there was no complaint on the file against Azam Khan, Sub- Inspector/first investigator. This circumstance clearly shows that the police was looking for the culprits under the clouds and names of the appellant or his co-accused had not been stated to the police till 8.12.2007 and claim of Azam Khan, first investigator appears to be true that none of these witnesses ever made statement before him disclosing names of the appellant and his co- accused till investigation remained with him. Thus the story of Waj Takar which is weakest type of evidence provided by the P.Ws. Was neither reliable nor confidence inspiring being contradictory and discrepant to the maximum extent and we discard the same from consideration being an afterthought and cooked up.
19. So far as evidence of extra judicial confession is concerned the complainant produced Imran Sajid P.W. 5 who deposed that he along with Jan Muhammad PW was present in his office on 5.12.2007 where Mst. Arif Jan, mother alongwith other relatives came and told them that her son Bashrat Khan alongwith others have inadvertently murdered Hafiz Abdur Raziq when they had gone to loot him and that the P.Ws. Should affect a compromise between them and the heirs of the deceased. In cross-examination he disclosed that he and Jan Muhammad are Phoophizad of the deceased. He claimed that none of the persons who had approached them to help them to affect compromise with legal heirs of the deceased was previously known to him. Rab Nawaz, Sub- Inspector appeared at trial as CW. 8 and deposed that investigation of the present case was entrusted to him on 8.12.2007 when he recorded statements of Muhammad Shaukat and Nawab PWs. He claimed that he arrested Bashrat Khan and waraccused on 10.12.2007. If this be so, then it is not understandable as to why mother/close relatives of Basharat Khan, appellant approached Imran Sajid and Jan Muhammad P.Ws. On 5.12.2007 seeking help to effect a compromise with legal heirs of deceased in spite of the fact that by that time Basharat Khan was not apprehended by the police rather not even a finger had been raised towards him suspecting his involvement in the occurrence. There is nothing on record even to show that Basharat Khan was detained by the police before his formal arrest which prompted the said relatives to move for rescue of their near one. In absence of any such circumstance the story of extra judicial confession appears to be an after thought and a concocted one which cannot be relied to convict a person to a capital punishment. Even otherwise it is not case of the prosecution that the appellant had ever made any admission/extra judicial confession before any person regarding commission of present occurrence. As such the story of extra judicial confession created by the prosecution is turned down being inadmissible. Even otherwise it is settled proposition of law that extra judicial confession is weakest type of evidence and cannot, in normal course, be made basis for conviction. Reference in this regard may be placed on the case of Muhammad Aslam v. Sabir Hussain and others (2009 SCM R 985).
20. Although it was claim of the prosecution that after arrest the appellant got recovered a kalashnikov and as per report of laboratory both the crime empties recovered from the spot matched with the said kalashnikov but one thing is to be kept in mind that it was not claim of the prosecution that it was only the appellant who had used kalashnikov at the place of .Occurrence.
Rather it was constant claim of the witnesses that all the three assailants were armed with kalashnikovs and it was not seen by any one as to who had used the same at the spot. Thus matching of crime empties with kalashnikov recovered from the appellant is a mysterious circumstance and leads to infer that it had already been provided to the investigator and on arrest of the appellant the same was planted on him. Even otherwise the occurrence took place on 13.9.2007, the appellant was arrested on 23.12.2007 and recovery of weapon of offence was effected on the same day. It is highly unbelievable that the appellant after committing murder would keep the weapon of offence more than three months in his safe custody and got recovered on the day of his arrest. It is too settled to admit any debate that the recovery is corroborative piece of evidence and when there is no eye-witness to be relied upon an then there is nothing which can be corroborated by the recovery. Reliance in this regard can be placed on the cases of Noor Muhammad v. The State and another (2010 SCM R 97).
21. 'The above analysis of evidence of the P.Ws. Reveals that there are material contradictions between the statements of the witnesses and the case of the prosecution against the appellant is full of doubts. Needless to mention that benefit of doubt always goes to the accused. Reliance is placed on the dictum laid down by the Hon'bleSupreme Court in Muhammad Akram, The State(2009 SCM R 230).
22. Occurrence in this case is unseen and hinges upon circumstantial evidence. There is no debate on this admitted position of law that circumstantial evidence is a weak type of evidence. The pieces of circumstantial evidence provided by the prosecution do not connect each other to make a chain which is necessary in such like cases so as to lead to only inference of guilt and nothing else. In dealing with the question of sufficiency of circumstantial evidence to record the conviction, it has to be borne in mind that if on the facts proved, no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be recorded. If, however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and conviction cannot be recorded. The Hon'ble Supreme Court while dealing with the case titled Muhammad. Hussain u. The State (2011 SCM R 1127), held as under: ."Admittedly, it is a case of circumstantial evidence, therefore, as rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall, by itself be sufficient to establish the guilt. However, each circumstance shall be so connected with each other that it shall make one complete chain, without there any broken link. As it has been discussed hereinabove, there are completely broken links of chain to connect the appellant with the commission of murder of deceased, therefore, he would be entitled to benefit of doubt."
' This point was also discussed by the Supreme Court of India in. Hukam Singh u. The State of Rajasthan (AIR 1977 SC 1063) as under: "It is now settled law that in case of circumstantial evidence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are susceptible of any rational explanation, no conviction can lie. "
23. The net result of the above discussion and observations is that we are of the firm view that the prosecution has failed to prove its case against the appellant beyond doubts. Consequently, Cr.
Appeal No, 216 of 2009 filed by Basharat Khan, convict is accepted. His conviction and sentence is set aside and he is acquitted of the charge. He be set at liberty forthwith if not required to be detained in any there case.
24. Since Basharat Khan, convict has been acquitted of the charge of murder, as such there is no question of confirmation of his death sentence or enhancement of compensation. As such Murder Reference No, 91 of 2009 is answered in negative and Cr. Revision No, 120 of 2009 is dismissed.
25. Learned counsel for the complainant could not show from evidence that the judgment of the learned trial Court was perverse or any illegality had been committed while acquitting Dilawar Khan, accused. As such Cr.P.S.L.A. No, 17 of 2009 is also dismissed.