QAZI MUHAMMAD AMIN AHMED, J:---Prosecution case is structured upon application dated 7.5.2008 Ex.PG, moved by Pathani Mai (PW-11), before a Deputy Superintendent of Police at Dera Ghazi Khan wherein it is alleged that her son, hereinafter referred to as the deceased, was taken away, 8-months back at 9.00 p.m. By Abdul Maalik appellant. The deceased and the appellant had a joint pesticide business. According to the complainant, the appellant again visited her house on the following day and toik away a motorcycle owned by the deceased; upon query he disclosed that the deceased, in business pursuits, had gone to Mianchannu and would return soon; during the next 8-months, the appellant avoided repeated queries and finally pleaded ignorance about the whereabouts of the deceased. Formal investigation was launched by Muhammad Ishaq S.I (PW-13); he associated the appellant as well as his father Moulvi Khalil Ahmad with the investigation. Abdul Maalik was formally arrested by Abdul Ghaffar S.I (PW-14) on 22.07.2008. Hafiz Khalil co-accused was granted bail in anticipation to his arrest on 13.10.2008. Third accused Bashir was proceeded against for his absence from law through a report under Section 512 of the Code of Criminal Procedure, 1898. Motive for the crime is embezzlement out of joint stock by the appellant.
For which the deceased protested and for that both the accused harboured a grudge. The appellant accompanying his father Hafiz Khalil Ahmad was sent to face trial before a learned Addl: Sessions Judge at D.G.Khan, who indicted them on 4 counts; they pleaded not guilty and claimed trial; pursuant whereto, prosecution produced as many as 15 witnesses besides relying upon forensic reports and recoveries to drive home charge against them.
' There is no direct evidence in this case except for departure of the deceased in the company of the appellant, entire prosecution is hinged upon various pieces of circumstantial evidence, collected subsequent to the arrest of the appellant, upon disclosures, allegedly made by the appellant during the course of investigation. According to Abdul Ghaffar, S.I (PW-14) it was a joint venture of pesticide business between the deceased and the appellant wherein the later was blamed by the former to have embezzled huge sums; complaints by the deceased were taken seriously and as per this witness, the appellant and his son decided to do away with the deceased who was intoxicated with liquor and tranquilizer nd thereafter buried alive in unconscionable condition. Bashir, the absconding accused is also privy to the exercise. Qari Muhammad Saleem (PW-12) has been produced to establish presence of deceased in the company of the appellant and Bashir co-accused, before his disappearance. Malik Riaz (PW-7) is witness of extra judicial confession; he is maternal uncle of the deceased and his case is that on an unspecified date the appellant and Muhammad Bashir visited when one Malik Bashir was present with him andupon his query the appellant made his breast clean, sharing with him all the relevant details of the incident and it was at this juncture that police arrived there. The appellant was arrested while Bashir co- accused succeeded to decamp. As per prosecution case, it is at this point of time that the appellant made a disclosure, pursuant whereto, skeleton of the deceased was dug out. Autopsy was conducted by Dr. Abdul Rehman Qaisrani (PW-2) on 22.07.2008; the dead body comprised of skeleton bone separated due to putrefaction. No fracture was noted in the skull, vertebras except hyoid bone on the left side of cornu, sent to Pathologist for the determination of ante mortem nature of a fracture which otherwise was suspected as result of digging exercise. According to the final opinion, due to advance stage of putrefaction, the body was reduced to granular debris.
Report of Chemical Examiner for detection of poison is in the negative. No opinion in respect of ante mortem nature of hyoid bone fracture is on the record. The witness expressed his inability to opine about the cause of death. However, according to Ex.PV, DNA profile generated with the help of humorous bone when compared with the blood samples of Mst. Pathani Mai confirmed her as the biological mother of the deceased. These various pieces of prosecution evidence were confronted by the appellant with the following plea:-- "I am innocent. Deceased was owing an amount of Rs.25,13,500/- towards me in connection with business affairs. Deceased issued a cheque in my favour of amount which was dishonored. I moved an application under section 22-A of Cr.P.C. Before Justice of Peace against the deceased.
He wasowing different amounts to various people. One Syed Dilawar Hussain Shah got registered a criminal case FIR No.113/08 dated 13.3.2008 with Police Station Kot Chuhtta for offence under section 489-F of P.P.C. An other person Allah Wassaya also got registered a criminal case against the deceased for undernourishment of cheque of Rs. 2,00,000/-. Deceased used to disappear oftenly to avoid from Creditors. 1 was arrested on 2.6.2008 by Abdul Ghaffar ASI when my application for pre-arrest bail was dismissed. 1 was detained in illegal custody for about one month and 1 was subject to torture by the police. Neither I got recovered any article nor dead body, nor Motorcycle. Alleged place of recovery of dead body is not my possession/ownership.
Witnesses deposed against me being related inter-se for the purpose of blackmailing".
' Upon conclusion of the trial, the learned trial Judge vide judgment dated 31.05.2010 acquitted Hafiz Khalil accused from the charge, however, proceeded to convict the appellant under Section 364 of the Pakistan Penal Code 1860, and sentenced him to imprisonment for life along with fine of Rs.100,000/- or to suffer 3 months S.I. In the event of default; for screening of evidence, the appellant was convicted under Section 201 of the Code ibid and sentenced to 7 years' R.I. With fine of Rs. 20,000/- or one month S.I. In the event of default and he was also convicted under Section 302(b) of the Code ibid, and sentenced to death with compensation of Rs. 200,000/- or to undergo 6 months S.I. In the event of default; sentences under Sections 364 and 201, P.P.C. To run concurrently, vires whereof, are being challenged through Crl. Appeal No.649 of 2010 whereas confirmation of death penalty is prayed for through M.R No.151 of 2010; both are being decided through this single judgment.
2. Learned counsel for the appellant contends that there is inordinate delay between the incident and recourse to law for which there is no plausible explanation; that DNA report, pressed into service by the prosecution to establish the identity of the skeleton as that of the deceased cannot be read in evidence as the expert did not enter the witness box to prove report (Ex.PV); that extra judicial confession being a weak type of evidence cannot sustain the charge and finally it is argued that plea taken by the appellant sounds more plausible.
3. Contrarily, the impugned judgment is defended by the learned Law Officer assisted by learned counsel for the complainant on the ground that discovery of skelton in the wake of disclosure by the appellant, in itself is a formidable piece of evidence, inexorably framing the appellant with the crime through confirmation by a DNA analysis.
4. Heard. Record perused.
5. There is a delay of 8 months between the disappearance of the deceased and complainant's recourse to law; explanation that the appellant avoided queries on one pretext or another and this is what impeded her to lodge report, is far from being plausible and as such would necessitate a more cautious scrutiny of prosecution evidence. No doubt, DNA report (Ex.PV) is per se admissible under Section 9(3) of the Punjab Forensic Science Agency, Act 2007 (Act XIII of 2007) read with Section 59 of the Qanun-e-Shahadat Order, 1984 (X of 1984), within the contemplation of Section 510 the Code of Criminal Procedure, 1898. This report establishes nexus of consanguinity between the skeleton and Mst. Pathani Mai (PW-11), however, this piece of evidence alone cannot drive home charge against the appellant so as to visit him with the ultimate penalty. The mainstay of the prosecution is an extra judicial confession by the appellant in the company of his co-accused Bashir before Malik Riaz (PW-7), pursuant whereto, upon a disclosure the skeleton was discovered.
A close scrutiny of statement of Malik Riaz (PW-7) reveals unanticipated and uninvited arrival of appellant at an odd hour of night. This witness is maternal uncle of the deceased, who visited the appellant many a times before during his search for the deceased; on prosecution's own showing, he was never taken into confidence by the appellant and this is really intriguing as to what prompted the appellant to share with this witness a detailed narrative, encompassing every aspect of the prosecution case including peripheral details in the absence of any compelling reason whatsoever,, to retract subsequently, after risking his neck. Arrival of a police party at the residence of (PW-7) exactly at a point of time when he was making his breast clean is also intriguing; it is prosecution's own case that a student was sent to lay information with the police about the presence of the appellant; it is astonishing to note as to why the appellant awaited arrival of the police despite that. Though the appellant is shown to have confessed his guilt, however, presence of Bashir co-accused and the query by the witness as to why they had visited him, militate against the individuality of disclosure. In case this portion of Malik Riaz's statement is excluded from consideration, the remainder portion would collapse by necessary implication, for the reason that both portions of the statement are indissolubly interlinked. It is in the evidence of (PW-7) that police informed them that the appellant would get recovered the dead body, when read together, these positions are found antithetical to each other; if the witnesses were already informed about the place of burial as is their case, there was no occasion for the police to share this information with them. Yet another circumstance looming over the hypothesis of disclosure is failure by the Investigating Officer to dig out the exact place, the skeleton was recovered after repeated attempts. It is in the statement of Malik Riaz (PW-7) that the appellant wrongly pointed out the place of burial. On an overall analysis of statement of PW-7 it would be unsafe to place implicit reliance thereon. There are other reasons to discard statement of PW-7 as well; the statement attributed to the appellant is intriguingly comprehensive and detailed; it is encyclopedia of the prosecution as it embodies a very long narrative, a person under the stress of his conscience, in his quest to bring himself at peace with his soul is not expected to be so elaborate to oblige the prosecution with details necessary for A his prosecution; this statement has been disbelieved qua Hafiz Khalid co-accused, acquitted from the charge without challenge in appeal. It is by now well settled that concessional statement is to be accepted in totality. The case is one of circumstantial evidence and the confessional statement with disclosure pursuant thereto constitutes a central link. Deceased's departure in the company of the appellant eight months prior to registration of case does not qualify proximity of time and space so as to be treated as last seen evidence. The circumstantial evidence cannot sustain a capital charge unless found consistent and confidence inspiring so as to exclude every hypothesis of innocence through a chain of circumstances constituting a nexus between the crime and the culprit. Not a case in hand.
Consequently, CrI. Appeal No. 649 of 2010 is allowed; the appellant is acquitted from the charges; he shall be released forthwith, if not required in any other case. Murder Reference No. 151 of 2010 is answered in NEGATIVE and death sentence awarded to the appellant is NOT CONFIRMED.