RAJA SHAHID MEHMOOD ABBASI, J: - Through this single judgment, we intend to dispose of Criminal Appeal No.351 of 2009 (Muhammad Zubair vs. The State), Criminal Appeal No. 326 of 2009 (Syed Qamer Abbas vs. Additional Sessions Judge etc.) and Murder Reference No.89/Rawalpindi of 2009, sent by the learned trial Court for confirmation or otherwise of death sentence awarded to the appellant Muhammad Zubair, under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 04-09-2009, passed by the learned Additional Sessions Judge, Rawalpindi in case FIR No.10 dated 12-01-2004, under Sections 302, 364, 201 and 34 PPC, registered at P.S.New Town, Rawalpindi for the murder of Noor-ulAine alias Noshi, whereby appellant was convicted under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced to death along with compensation of Rs.1,00,000/- to the legal heirs of the deceased under Section 544-A, of the Criminal Procedure Code, 1898; in default whereof to further undergo R.I for six months. The appellant was also convicted under Section 201 PPC and sentenced to undergo (R.I) for 7 years alongwith compensation of Rs.25,000/-; in default whereof to undergo S.I for six months.
The appellant was also convicted under section 364 PPC and sentenced to life imprisonment (R.I) along with fine of Rs.50000/- and in default whereof to undergo S.I for one year.
Whereas the learned Additional Sessions Judge, Rawalpindi acquitted co-accused of the appellant namely Amir Waseem, while extending him benefit of doubt, which is being impugned herein through abovementioned Criminal Appeal No. 326 of 2009.
2. The prosecution case as unfolded in the FIR (Ex.PA/1), registered on the statement of complainant, Syed Qamar Abbas, (PW-1) are that his daughter Noorul-Ain alias Noshi (hereinafter referred to as the deceased) contracted marriage with accused Amir Waseem about 1-1/2 years ago and she performed her matrimonial obligation with him at Karachi, cordially. About three months ago, she and her husband resided in Dhoke Ellahi Bukhsh Rawalpindi, Noor-ul-Ain alias Noshi had been serving in Orient Company Blue Area, Islamabad, prior to her marriage, she left the job after her marriage. The abovesaid company once again offered her for job. On 10-01-2004, Amir Waseem came to Islamabad in connection with some personal engagements, by leaving Noor-ul- Ain alias Noshi deceased in the house of the complainant. Amir asked Noor-ul-Ain alias Noshi to come at Office of Orient Company, Islamabad, his daughter went to Islamabad in Taxi at about 2:00 PM, after obtaining his permission but when husband of Noor-ul-Aine alias Noshi deceased reached the Office of said company, after finishing his business deeds, he came to know that Noor- ul-Ain alias Noshi did not reach office. Amir Waseem accused called at home but she did not reach home. He immediately searched her in hospital, also informed to rescue 15 and Police Station New Town. He kept on searching her but failed. Mobile phone of Noor-ul-Aine alias Noshi remained on, till 8:00 PM but after this the call was not attended. They tried to trace out the signals of phone which were found within the area of 200 meters away from PAF Cinema to Dhoke Ellahi Bukhsh.
Noor-Ul-Ain alias Noshi was wearing gold chain, gold bangles, gold rings and the complainant believed that her daughter had been abducted by some unknown person.
3. It is pertinent to mention here that initially case was registered under Section 16 of Offence of Zina (Enforcement of Hadud) Ordinance, 1979. Later on, Section 364 PPC was added vide case diary No.43, dated 26-08-2004.
4. Learned trial Court after observing all the pre-trial codal formalities, charge sheeted the appellant under Section 364 PPC and subsequently, on 09-04-2008, the aforementioned accused persons were again charge sheeted under Sections 364, 302, 201 and 34 PPC to which they again pleaded not guilty and claimed trial.
5. In order to prove this case the prosecution has examined as many as nineteen witnesses to bring home the guilt of accused. Initial investigation was conducted by Allah Reham, SI (PW17), who scribed formal FIR under Sections 364 PPC and 16 offence of Zina "Enforcement of Hadood Ordinance, 1979", inspected the crime venue; prepared site plan without scale (Ex.PO) and recorded statements of the witnesses under Section 161 Cr.P.C. After his transfer the investigation was transferred to Ghulam Yasin, SI (PW18), who recorded the statements of three persons under Section 161 Cr.P.C. Thereafter, the investigation was entrusted to Tariq Hanif Joeya, SSP, Special Branch, Gujranwala (PW19), who arrested appellant Muhammad Zubair and his co-accused Amir Waseem (since acquitted) on 15-02-2008 and 16-02-2008 respectively, got recovered the dead body of Noor-ul-Ain alias Noshi from the bathroom of Muhammad Zubair, appellant; prepared inquest report (Ex.PP), prepared site plan of recovery of dead body (Ex.PQ), took into possession concrete pieces P16 vide memo (Ex.PL), sent the dead body for postmortem; took into possession the passport of deceased P17, two ID P-18/1-2 and one photograph of passport size P19, on the pointation of Amir Waseem (since acquitted) vide memo (Ex.PM), on 20-02-2008, on the pointation of Muhammad Zubair appellant/accused, took into possession golden ornaments of Noor-ul-Ain alias Noshi deceased P7 to P-10 and one jeans jacket P11 from the residence of appellant Muhammad Zubair and took into possession vide memo (Ex.PN); also took into possession wooden bench P20 vide memo (Ex.PK) and a plastic bucket P21from the baithak of Muhammad Zubair, appellant. On 17-02-2008, he took into possession shirt P12, brazier P13, two plastic sheets and one rexene bag P16, vide memo (Ex.PA). On 21-02-2008, he secured of Email record of both the accused; taken into possession vide memo (Ex.PC); on 16-02-2008, under his instructions draftsman took rough notes of the place of occurrence and prepared site plan (Ex.PE); all the notes in red ink are in his handwriting and it bears his signature. He completed the investigation, and sent the accused to judicial lockup. Muhammad Aslam, Inspector (PW3) performed his duties with (PW-19) Tariq Hanif Joeya, SSP. Ahmad Javed, DSP, Investigation, Attock also interrogated the accused persons under the supervision of DPO, Attock and took with him father and mother of deceased to the office of FSL, Lahore for DNA test.
6. Autopsy was conducted on 16-02-2008 on the dead body of the deceased Noor-ul-Ain alias Noshi by Medical Officer Doctor Manza Kauser (PW-9), who observed as under:- " External appearance It was a four years old body putrefied and mummified. The face was closed in shopping bag which was white in colour. It was knotted over the neck. The body was also wrapped in plastic bag and green sheet. She was wearing brassier. The body was inflexed posture. Face was disfigured and swollen. No clear feature was identified. On body there was no skin only then layer was present over hips. No mark of violence can be identified on these areas. Black hair were present on the scalp.
Pieces of skin upon hair and nail were taken by DNA typing, hyoid is taken for examination and sent to bacteriologist for histopathology. Cranium and spinal cord.
Scalp, skull and vertebrae Scalp bones were present over the scalp.
Membrane Brain Spinal cord Bain tissues cannot be identified but small piece was taken for examination for that area.
Thorax No organ can be identified in thorax cavity; however tissue from anatomic areas were taken for examination.
Abdomen No organ can be identified, mouth was disfigured. Samples are taken from anatomic side of stomach intestines, lever spleen and kidneys and sent to chemical examiner for detection of poison.
Opinion After conducting autopsy of the deceased, I cannot give any opinion about cause of death.
Samples of different viscera have been taken for chemical and bacteriological examination.
Samples of bones nail, hail and skin were also taken for DNA typing. Final opinion will be given after getting report of samples.
Probable time between injury and death cannot be ascertained.
I handed over the dead body after post mortem along with carbon copy of post mortem report, photocopies of police papers and sealed bottles to Fakhur-u-Nisa 287/CC. (Ex.PF) is true copy of postmortem report which is in my hand and bears my signatures"
The appellant Muhammad Zubair was examined under Section 342 Cr.P.C. Who on question as to why this case was registered against him, replied as under:- "This case is result of fabrication and without any evidence" The accused neither opted to appear as his own witness u/s 340(2) Cr.P.C. Nor did he produce defence evidence in his favour. The Public Prosecutor closed the prosecution evidence.
8. The learned trial Court having heard the learned counsel for the parties passed the above said conviction and sentences, which is being impugned herein.
9. It has been argued by learned counsel for the appellant Muhammad Zubair that the FIR was registered against unknown persons and the appellant was not nominated in the same. Further maintained that it has been stated by (PW6) in cross examination that he could not say whether any material is available in Email prints against accused persons. Furthermore no recovery memo was prepared regarding recovery of Email prints; that recoveries are fake one and have been planted on the accused; that dead body was recovered after four years and it was not proved on record that the alleged baithak from where the dead body was recovered was in possession of the appellant as neither (PW10) produced any ownership certificate nor any tenancy agreement or receipt of rent; that number of accused persons have been arrested in this case, moreover, no guard was appointed for the protection of place of recovery of dead body while police came to know about the alleged place of occurrence a day earlier; that no cause of death was given by doctor Munnaza Kousar WMO (PW9) who conducted autopsy of the deceased; that according to the report of chemical examiner (EX-PQ) no poison was detected; that DNA test report has not been produced; that, admittedly, there is no eye witness of the occurrence; that no motive is alleged against the present appellant; that no evidence has been produced in the trial Court as to who has dug out the dead body from the alleged baithak after dismantling the concrete; that there is material contradictions in the statements of Syed Najam Abbas Naqvi (PW-13) and Tariq Hanif Joya (PW-19); that the medical evidence does not corroborate the ocular account; that recoveries shown to have been affected after long four years without any explanations or reasons that why the appellant kept the same in his house for four years and one month, that the deceased did not go from her home in the presence of the complainant, therefore, it cannot be ascertained that she was lastly wearing the said gold ornaments and these articles were also not subjected to identification in order to ascertain that the same belonged to the deceased. Further maintained that the co-accused namely Amir Wasem was acquitted from the case on same set of evidence and no additional evidence was recorded in order to convict the present appellant; that memo of pointation have been prepared illegally because same are prepared when actual articles were not present there; that the appellant had no previous enmity or grudge with the complainant party to commit such an heinous offence.
10. On the other hand, the learned DPG supported the impugned judgment and controverted the arguments of learned counsel for the appellant with vehemence and submitted that ocular account is in line with medical evidence; that baithak from where the dead body was recovered was in exclusive possession of the appellant and this fact was fully corroborated by the evidence produced by the prosecution in shape of Muhammad Latif (PW-10); that recoveries further corroborate the involvement of the appellant in the instant case.
11. Arguments heard. Record perused.
12. Record reveals that Nor-ul-Ain alias Noshi (deceased) was married with Amir Waseem co- accused, who has been acquitted of the charges and motive was also alleged against him. It is prosecution's own case that admittedly, there is no eye-witness of this occurrence and the case is based upon circumstantial evidence, neither last seen evidence nor evidence of wajatakkar is available, it is also an admitted fact that it was a blind murder case and it is further admitted that the prosecution could not bring on record the mode and place of murder of deceased. The only incriminating evidence against the appellant is data of the mobile record, Email records and recovery of dead body from a baitak, situated on Tipu Road, which was allegedly in his possession and finally the recovery of plastic bucket (P21), recovery of wooden bench (P20) recovery of peace of concrete (P16), gold karay (P9), one gold locket (P8), three gold rings (P10), two ear tops (P7) and one jeans jacket (P11) taken into possession through (EX-PK), (EX-PJ) and (EX-PL).
13. Firstly, we would like to discuss the evidence of Email prints Ex-PW6/1-121. It is worth mentioning that to get access to Email, passwo rd is necessary but in this case no password was mentioned by the PWs in their statements before the learned trail Court and as well as in the statements got recorded u/s 161 Cr.P.C. Before the police. Moreover Email does not bear the names of accused persons on it and same was not even produced in the Court according to law to meet the requirement of Article 72 of "Qanun-e-Shahadat Order, 1984". Attested copies were not available, therefore, the same were not exhibited before the Court during the trial. It is also observed that the Emails can be maneuvered by anyone, which is also admitted by the prosecution witnesses.
Therefore, this piece of evidence i.e. Emails, relied by the prosecution were not corroborated by any other confidence inspiring evidence.
14. Now comes the question of the recovery of dead body, though all the concerned PWs unanimously deposed that the same was recovered from the baitak, situated at Tipu Road, which was in exclusive possession of appellant Muhammad Zubair and the same was rented out to the appellant by Muhammad Latif (PW-10) about 7 1/2 years ago but if the evidence of (PW-10) is scrutinized in depth, it is observed that the baitak is not in the name of Muhammad Latif (PW10) in the record maintained by the office of Excise and Taxation. Moreover, the prosecution failed to produce any documentary evidence to connect the appellant with the alleged baitak such as rent agreement, receipt of rent, or any utility bill deposited by the appellant. In order to establish the connection of the appellant with the baithak no person, from the locality or any student who was taking tuition was got examined by the police, even keys of the said baitak were not taken into possession. In this way, the prosecution has miserably failed to prove that the baitak was in exclusive possession of the appellant. It is also worth noticeable that the prosecution could not establish whether the appellant or Amir Waseem co-accused (since acquitted) was taken first for the pointation of recovery of dead body, material contradictions has been noted between the statements of (PW-13) and (PW-19). Moreover, their statements are contradictory to the site plan of the place of recovery (EX-PQ) because they have failed to state the location of said baitak with site plan (EX-PQ).
15. As far as the medical evidence is concerned, the same came out from the mouth of lady doctor Munazza Kousar (PW-9), who conducted autopsy on the dead body of Nor-ulAin alias Noshi. She verified her post mortem examination (Ex-PF), however, she admitted that dead body was completely unidentifiable and putrefied. Though the prosecution tried to prove through DNA test that dead body was of Noor-ul Ain yet reasons best known to the prosecution DNA report was not got exhibited in the Court, during the trial and in this way the best prosecution evidence, in order to prove that dead body was of Noor-ul-Ain alias Noshi deceased was withheld by the prosecution which is obviously, extremely fatal for the prosecution. The cause of death is also shrouded in mystery as the lady doctor conducting postmortem examination did not opine whether the deceased Noor-ul-Ain alias Noshi died of suffocation, asphyxia or otherwise. Though, the prosecution tried to prove the cause of death through DNA typing yet as observed above, DNA report was not exhibited in the Court during the trial.
16. Now coming to the question of recoveries, though, the prosecution tried to use the recoveries of plastic bucket (P21), recovery of wooden bench (P20) recovery of peace of concrete (P16), gold karay (P9), one gold locket (P8), three gold rings (P10), two ear tops (P7) and one jeans jacket (P11) taken into possession through (EX-PK), (EX-PJ) and (EX-PL) yet it is observed that there were two recovery witnesses in the case Syed Najam Abbas Naqvi (PW-13) and Muhammad Abbas (given up) but the signatures of Syed Najam Abbas Naqvi (PW-13) are (EX-PJ/1), (EX-PJ/1) and (EX-PL/1) respectively. However, his signatures were obtained during cross-examination and same were attached with the record as (EX-DG) and it is observed that the signatures on (EX-PK), (EX-PJ) & (EX-PL) are entirely different from the signatures taken on (EX-PG), though, it is admitted by the trial Court but even then the same were not sent for expert opinion of hand writing expert, which is another doubt in the prosecution evidence that is also fatal and the recoveries could not have been proved against the appellant. It is also not acceptable to a prudent mind that despite the lapse of 4 1/2 years why an accused would keep the same despite the fact that it was in his knowledge that investigation is being carried out and the appellant is also one of the suspects.
Furthermore, it is also observed that there is no last seen evidence to ascertain that the deceased was wearing these articles or jeans jacket (P11), the prosecution even failed to bring on record any independent witness in order to join recovery proceedings and meet the requirement of Section 103 of Cr.P.C, therefore, the recoveries remains doubtful and cannot be believed. It is also observed that no identification memo qua the recovered articles was prepared by the police. So far as Amir Waseem respondent/accused in Criminal Appeal No. 326 of 2009 is concerned, record reveals that he has gone to USA and did not appear before the Court on any date of hearing. It is also observed that on same set of evidence and almost on similar allegations co-accused Amir Waseem was acquitted out of the charges which is being impugned herein through Crl. Appeal No. 326 of 2009.
On exactly the same evidence and view of the joint charge, it is not comprehendible, as to how, co- accused Amir Waseem could be acquitted on the same assertions of the witnesses . It is also well established law that if an ocular testimony of a witness is to be disbelieved against the particular set of accused and is to be believed another accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by Superior Courts. Reliance can safely be placed on the case of "SARFRAZ alias SAPPI and two others vs. THE STATE" (2000 SCM R 1758) & "IFTIKHAR HUSSAIN and ANOTHER vs. THE STATE" (PLJ 2004 SC 552). In the case in hand, no further evidence has been led by the prosecution. To make the appellant responsible for the recovery of the dead body in disfigured and swollen condition and joint pointation is otherwise inadmissible evidence according to law.
17. It is also observed that instant case rests entirely on circumstantial evidence as no direct evidence of murder is available on the file, therefore, prosecution was under burden to provide all links making out one straight chain but the same is not available in this case, therefore, the conviction and sentence is not sustained. Reliance is placed on the case titled "Imran vs. The State"
(2015 SCM R 155).
18. The analysis of evidence and missing links in the prosecution evidence show that the prosecution has not been able to discharge the onus to prove the guilt of the appellant satisfactorily beyond shadow of any reasonable doubt.
19. We, therefore, allow Criminal Appeal No. 351 of 2009 and while extending the benefit of doubt to the appellant set aside the impugned judgment dated 04-09-2009 and acquit the appellant Muhammad Zubair from the charge against him; appellant is in jail; be released forthwith if not required in any other case. Whereas Criminal appeal No. 326 of 2009 filed by Syed Qamar Abbas, complainant, against the acquittal of Amir Waseem, respondent is dismissed and murder reference No. 89/RWP of 2009 is answered in negative.