RIAZ AHMAD KHAN, C.J.---This judgment is directed to dispose of Criminal Appeal No.9/P/2012 Mukamil Shah v. Sami Ullah and the State, Criminal Appeal No.51/1/2012 Mst. Aysha Jehangir v. The State and Sami Ullah, and Jail Criminal Appeal No. 1/P/2013 Bahadar Shah v. Sami Ullah and the State. All the three appeals arise out of the same judgment dated 17.11.2012 passed by the learned Additional Sessions Judge-VII, Peshawar by virtue of which all the three appellants were convicted under section 17(4) Haraabah of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 in case FIR No.254 dated 25.02.2010 Police Station Pharipura (Peshawar) and sentenced to life imprisonment along with payment of fine of Rs.2,00,000/- each male accused which was to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Appellant Mst.
Aysha Jehangir however was not burdened with payment of fine. In default of payment of fine the two male accused were to further undergo six months S.I. Each.
2. At the very outset it is important to mention that the judgment in this case was passed on 17.11.2012. However on 15.11.2012 Mst. Aysha, who was on bail in subject cited case, was travelling in a car and at main G.T. Road at Shaidu, Tehsil Nowshera was attacked by three persons who were travelling in another car. Those three persons fired at her, as a result of which she received injury on her right foot and her driver namely Muhammad Riaz received injury on his back. In that respect FIR No.897 was registered at Police Station Akora Khatlak District Nowshera. The learned Additional Sessions Judge-VW Peshawar while passing the impugned judgment, in paras 31 and 32 of the judgment made the following observations:- "31. Accused Mst. Aysha is on bail, she is absent today and her exemption application is filed by her counsel on the ground that she has got injured in case FIR No.897 dated 15.11.2012 under sections 324/427/34, P.P.C. PS Akora and admitted in DHQ Hospital Nowshera.
32. The conviction warrant is sent to the SHO of PS concerned through Naib court of this court, with the direction to arrest the said accused Mst. Aysha Jehangir who is injured of case FIR No.897 dated 15-11-2012 under sections 324/427/34, P.P.C. PS Akora Khattak now admitted in DHQ Hospital Nowshera and in case she can be treated in Jail Hospital be shifted to serve the sentence, however, if her treatment is not possible in the jail hospital she be guarded as convicted prisoner/patient and on her recovery she be shifted to the Central Jail, Peshawar for above sentence. Benefit of section 382-B, Cr.P.C. Are extended to accused Bahadur Shah, Mukamil Shah and Mst. Aysha. A copy of this judgment be delivered to the accused free of costs."
3. Learned Counsel for appellant Mst. Aysha Jehangir submitted that conviction warrant was never served upon Mst. Aysha Jehangir and that he got power of attorney from her and he himself attested the same on the identification of another person.
4. Learned Counsel for the complainant in respect of appeal filed by Mst. Aysha Jehangir raised preliminary objection that the appeal was incompetent and convict/appellant Mst. Aysha Jehangir was required to surrender before the Court and if she was injured, the Court could suspend her sentence under section 426, Cr.P.C. But without surrendering before the Court or jail authorities the appellant had become fugitive from law and, thus could not file the appeal.
5. On the other hand learned Counsel for appellant Mst. Aysha Jehangir submitted that Mst. Aysha Jehangir had threats to her life and she was not in a position to appear before the Court. She had executed a power of attorney in his favour and, therefore, the appeal was competent. The appeal could not be dismissed as she was not fugitive from law. In this respect the learned Counsel for appellant Mst. Aysha Jehangir was asked if he could produce the appellant Mst. Aysha Jehangir before the Court but he expressed his inability and submitted that he had no contact with the appellant and even he himself did not know as to where she was. So in such like circumstances he could not produce the appellant before the Court. The learned Counsel, however, insisted that the appeal of Mst. Aysha Jehangir be heard on merits. Learned Counsel for appellant Mst. Aysha Jehangir further submitted that the appeal of Mst. Aysha Jehangir had already been admitted and once the appeal is admitted, it has to be decided on merits. Learned Counsel for appellant Mst.
Ayglia Jehangir in support of his contentions referred to PLD 2001 Pesh. 80 Aftab Ahmad Khan Sherpao v. The State, PLD 1957 (W.P.) Peshawar 75 Awal Khan and another v. The State, PLD 1970 Supreme Court 177 Muhammad Ashiq Faqir v. The State and 1971 SCM R 35 Ghulam Hussain v. The State.
6. In order to resist the contention of learned Counsel for the appellant, learned Counsel for the complainant relied on PLD 2005 Supreme Court 270 The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman and 1982 SCM R 623 Hayat Bakhsh and others v.
The State.
7. Before adverting to the facts of the main appeal, it is necessary to decide the issue regarding maintainability of the appeal filed by Mst. Aysha Jehangir. Section 410 of the Code of Criminal Procedure provides:
410. Appeal from sentence of Court of Session.---Any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court.
The said section clearly provides that only convicted persons can file appeal. There is no doubt that the appeal can be filed through Counsel as well yet the fact is that the convict if on bail has to surrender before the Court. If the -convicted person does not surrender before the Court the appeal cannot be filed. It is correct that in the present case the appeal had been admitted on 14.02.2013, but the order clearly shows that the learned Counsel for the appellant Mst. Aysha Jehangir had concealed the facts from the Court that the convict/appellant was neither in jail nor before the Court. The Court, as such, could not take this fact into consideration and in ordinary manner admitted the appeal for regular hearing as it was against conviction. As such, the order passed by the Court was due to concealment of fads and the said order would not make the appeal maintainable. It was incumbent upon the learned Counsel for the appellant that he should have clarified the position before the Court that the appellant was not in a position to appear before the Court and the appellant was neither in jail nor available before the Court. The appeal, as such, was not filed by the convict/appellant.
8. It is also strange that even today the learned Counsel is not aware of the whereabouts of appellant Mst. Aysha and it is not known as to how he got instructions from his client.
9. The established principle of law and the consistent view of the superior Courts is that once the appeal is admitted for regular hearing then it cannot be dismissed for non-prosecution or disposed of summarily rather it has to be decided on merits. Reference in this respect may be made to PLD 1970 Supreme Court 177 Muhammad Ashiq Faqir v. The State.
However this principle has to be distinguished from filing the appeal. The appeal cannot be filed by fugitive from law. Mere filing power of attorney is not sufficient to file the appeal on behalf of a convicted person. It is incumbent upon the convicted person that he or she must surrender before the authority of the Court first. The judgment of the trial Court must be complied with and then appeal may be filed. The judgment "PLD 2001 Pesh. 80 Aftab Ahmad Sherpao v. The State" referred to by the learned Counsel for the appellant also does not support the contention of the learned Counsel. In that case the appellant was only fined which had been paid by the appellant and thereafter the appeal was filed. In Para 4 of the judgment it was held: "Before touching the merits, we may recall that after filing the appeal, Aftab Ahmed Khan Sherpao, due to some other cases, had made himself scare for this Court and thus a dispute arose as to whether he can be extended the right of audience through counsel." (emphasis supplied)
It obviously means that the facts of the said case were totally different. In the first instance the accused in that case were not sentenced to imprisonment. The accused were only fined which was paid and thereafter appeal was filed. The appeal as such was properly filed and thereafter the appellant Aftab Ahmed Khan Sherpao absented. The Court then held that even in absence of the appellant, the Counsel for appellant could be extended the right of audience. Since in that case appeal had been properly filed, therefore, the Counsel of the appellant had rightly been extended the right of audience, but the present case is totally different because the appeal had not been filed by the convict/appellant. In these circumstances we hold that Cr. Appeal No.51/1/2012 filed by Mst. Aysha Jehangir' is incompetent and is, therefore, dismissed.
10. Facts constituting the background of the remaining appeals i.e. Cr. Appeal No.9/P/2012 filed by appellant Mukamil Shah and Cr. Appeal No.1/P/2013 filed by appellant Bahadar Shah are that on 25.02.2010 ASI Haleem Gul PW.7 while on routine mobile gusht received information that near Nawi Kalay a dead body being wrapped in bag was lying in the fields. On receiving information he reached the spot where he found the dead body wrapped in the bag: He opened the bag. Other people attracted to the spot but nobody could recognize the dead body. According to Haleem Gul ASI the deceased had been done to death through strangulation. He put the dead body in the police vehicle and while on the way to the police station at check post at Dalazak road one Samiullah son of Sadullah Khan resident of Jalala, Mardan then residing at Sethi Town No.2, Peshawar identified the dead body and stated that the dead body was of Muhammad Riaz son of Firdous resident of Sherghar KaIan and that the deceased was his nephew (sister's son). The complainant further stated that the deceased had gone to the house of his friend Jamal Shah on 21.02.2010 and thereafter disappeared. Nobody was charged in the report. On the basis of the said report Murasila Ex.PA/1 was prepared and was sent to police station through constable Arab Khan.
On the basis of said Murasila FIR No.254 Ex.PA was registered on the same day at 11.35 wherein the time of report was entered as 11.10. The FIR was registered under section 302, P.P.C. Haleem Gul PW.7 also prepared injury sheet Ex.PW.7/1 and inquest report Ex.PW.7/2. The dead body was sent for autopsy under the escort of Altaf Khan to Khayber Medical College. The postmortem was conducted by Dr. Muhammad Asghar Khan PW.11. The postmortem report is Ex.PM. The observation and opinion of the Doctor was as follows: Body of young man having average built wearing white colour Shalwar-Qameez and white Banayan blood stained.
Body is completely decomposed (putrefied). Whole body is swollen, face swollen, tongue bitten and out from mouth cavity. Bleeding from nose and oral cavity, skin scalp from different part of body.
1. A ligature mark 'present around the neck, 45 x 3 in size, 1 cm above the thyroid cartilage. Neck is free. Multiple colour piece of cloth present all around the neck.
2. Both hands are tied at wrist joint with Azarband.
3. All the organs are in advance stage of putrification.
The deceased died due to asphyxia due to ligature strangulation. Probable time between injury and death was immediate and between death and postmortem was 2-4 days.
11. After registration, of the case investigation was entrusted to Maqbali Khan CIO Police Station Faqirabad, Peshawar PW.10. He prepared site plan Ex.PB at the instance of Haleem Gul ASI. From the spot he recovered and took into possession one rope (Rassi) of white colour measuring 21/2 yards .P-1, one Azarband P-2, one electric red wire measuring 5 yards P-3 and plastic bag P-4 of yellow colour. From the bag dead body was recovered. All the articles were put into the parcel through recovery memo Ex.PW.4/1 in the presence of marginal witnesses.
12. Muhammad Ijaz, brother of the deceased charged the present accused i.e. Bahadar Shah, Mukamil Shah and Mst. Aysha on 03.03.2010. On 04.03.2010 his statement under section 164, Cr.P.C.
Was recorded. The said statement was neither exhibited nor produced before the Court, however it was referred to by the I.O. In his statement before the Court. On 03.03.2010 all the three accused were arrested. On completion of investigation challan was submitted. Charge was framed on 29.06.2010 and the accused were charged under section 17(4), Haraabah of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, to which the accused/appellants did not plead guilty and claimed trial.
13. The prosecution examined Sami Ullah complainant as PW.1. He reproduced the version given in the FIR.
14. Mukamil Shah, real brother of accused Bahadar Shah was examined as PW.2. He is also brother- in-law of second accused Mukamil Shah as his sister is married to the accused. In his statement before the Court he submitted that convict/appellant Mst. Aysha was engaged with his brother Bahadar Shah. The deceased was known to him. On the day of occurrence, he along with accused Bahadar Shah and Mukamil Shah was present in his house situated in Shinwari Town Dalazak Road, Peshawar. In the meanwhile accused Aysha came along with deceased Riaz in a motorcar of white colour, which was being driven by deceased Riaz. After parking the motorcar they entered the house and accused Mukamil Shah gave a blow with some weapon to the deceased Riaz Khan on his head as a result of which deceased Riaz became unconscious and fell down on the ground.
Mst. Aysha accused left the house. The convicts/appellants Bahadar Shah and Mukamil Shah took the deceased, then unconscious, to a room and tied his hands and legs with a rope in the room.
Thereafter, accused Bahadar Shah and Mukamil Shah put a rope in the neck of Riaz deceased and committed his murder in the said room. Thereafter they put the dead body of the deceased on the upper storey of the house. On the next day Mst. Aysha accused again came there and she along with Bahadar Shah accused took the motorcar from there. The dead body of the deceased was lying inside the room of the house for three days and thereafter they put the dead body of the deceased in a bag and threw the same in the nearby fields. All the accused committed the murder of the deceased Riaz for snatching the cash amount and motorcar from the deceased. After about one week the police came to the said house along with accused Bahadar Shah and Mukamil Shah who were in their custody. He further submitted that the police inquired from him and he narrated the whole story. He further submitted that he was an eye-witness of the occurrence and out of the snatching amount Rs.15,000/- were paid to Mukamil Shah accused by accused Bahadar Shah. In cross-examination he admitted that accused Bahadar Shah was married. Accused Mst. Aysha was also married but her husband had been murdered. He himself was a driver and was resident of Takht Bahi, however on the day of occurrence he was present in the house of his brother Bahadar Shah along with him. He also admitted that Bahadar Shah accused had been ousted by his father from his house and the accused was living in Peshawar. He also admitted that his statement was recorded by the police after one week of the occurrence. He had not informed the family members of the deceased Riaz after the occurrence. After the occurrence he had never gone to Police Station Pharipura. With the blow of Mukamil Shah the deceased had become unconscious but injury was such that blood had not come out. Accused Mst. Aysha was known to him. He further stated that he had been living in the said house with the accused for three days. However, it was his first visit to the house of Bahadar Shah.
15. Muhammad Ijaz, brother of deceased Riaz was examined as PW.3. In his statement before the Court he submitted that his brother Riaz Khan deceased had left the house on 21.02.2010 to attend the marriage of his friend in motorcar XLI bearing registration No.I0B-3613 white colour. At the time of departure from the house the deceased had an amount of Rs.1,10,000/- cash, ATM Cards and different cheaque books of different banks. Since the deceased did not come for long time so he along with other family members contacted his friend namely Jamal Shah but he also expressed ignorance. Jamal Shah then lodged the report at police Station Faqirabad about his missing brother. On 25.02.2010 the dead body of deceased was found in the area of Police Station Pharipura and in that respect his paternal uncle Sami Ullah had lodged the report after identifying the dead body. According to him during the course of investigation Bahadar Shah, Mukamil Shah and Mst.
Aysha were identified and after his due satisfaction he charged the above-mentioned accused for the murder of his deceased brother. The motive for the offence was snatching of cash amount and motorcar from deceased Riaz.
16. Zahid Khan ASI PW.4 was marginal witness to different recovery memos. Amir Badshah SI PW.5 had arrested the accused on 03.03.2010. Asad Zia was examined as PW.6. In his statement before the Court he submitted that he was a car dealer at Takht Bhai. Accused Bahadar Shah was known to him being his co-villager. On 27.02.2010 Bahadar Shah accused brought a motorcar bearing registration No.IWB-3613 XLI white colour model 2006 to him for sale. He purchased the said car for sale consideration of Rs.2,35,000/- and paid an amount of Rs.1,90,000/- to accused Bahadar Shah.
The remaining amount was to be paid at the time of production of registration book and other documents. After 2/3 days the pace came to his bargain centre and took away the car. At the time of purchasing the car Bahadar Shah accused was accompanied by a female who was not known to him. In cross-examination he submitted that he was a car dealer but had left the business 5/6 months ago. He had not given any receipt to the I.O. Regarding the purchase of the motorcar and had not received any receipt from the accused. The witness volunteered that the car was insurance bank vehicle. The deceased Riaz was his relative and nothing was reduced into writing regarding sale of the car as the writing pad had finished by that time and was not available with him. Haleem Gul ASI appeared as PW.7 who had scribed the Murasila. PW.8 Gul Sher Khan ASI had registered the FIR on the basis of Murasila. PW.9 Altaf Khan Head Constable had escorted the dead body from the spot to the mortuary. PW.10 Maqabali Khan CIO was the I.O., who had conducted the investigation. In his statement he submitted that on the pointation of accused Bahadar Shah one Nokia mobile set P-10, which belonged to deceased Riaz, one receipt bearing No.75 P-11 and one CNIC P-12 were recovered from the spot in the presence of the marginal witnesses. In cross- examination he admitted that there was no sim in the mobile set. He also admitted that Muzamil Shah had come to the police station along with Ijaz and complainant. He also admitted that the motorcar was recovered from one Asad Zia in Takht Bhai Mardan but the fact regarding Takht Bhai was not mentioned in the recovery memo. He also admitted that in the house where the occurrence had taken place, there were no house-hold-articles.
17. Dr. Muhammad Asghar Khan was examined as PW.11, who had conducted the autopsy on the dead body of the deceased. Thereafter statements of the accused were recorded under section 342, Cr.P.C.
18. After hearing the parties, the learned Additional Sessions Judge-VII, Peshawar convicted all the three accused under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 and sentenced them to life imprisonment each with a fine of Rs.2,00,000/- each which was to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. The fine however was not imposed on Mst. Aysha accused. In default of payment of fine the two accused were to further undergo six months S.I. Each after completion of substantive sentence. Feeling aggrieved of the said judgment the aforementioned three appeals were filed'. The appeal (Cr.
Appeal No.51/I of 2012)- of Mst. Aysha Jehangir has already been dismissed vide aforementioned portion of the present judgment.
19. Learned Counsel for appellant Mukamil Shah submitted that there was nothing on record to connect the accused Mukamil Shah with the alleged offence. The statement of so called eye- witness was recorded after one week of the occurrence, which could not be accepted. There is no eye-witness of the occurrence. The ocular version did not support the medical evidence. No recovery had been effected from accused Mukamil Shah and there was no motive, even alleged by the prosecution. The accused Mukamil Shah was charged after about 13-days, presence of PW.2 Muzamil Shah was doubtful and his statement could not be believed.
20. Learned Counsel for appellant Bahadar Shah submitted that the accused had been falsely implicated in the case. He had inimical terms with his brother and the real brother had falsely deposed against him. The whole case was fabricated as infact no recovery had been effected from the accused Bahadar Shah or on his pointation. The alleged car was recovered from Takht Bhai and there was nothing on record to show that accused Bahadar Shah had actually sold the car to Asad Zia PW.6. The statement of Asad Zia itself is doubtful and full of contradictions. The learned Counsel further submitted that the car, at the relevant time, was worth 12/14 lacs of rupees and it cannot be believed that it was sold only for 2,35,000/-, even in that respect there is nothing in writing. The conviction as such was based on surmises and conjectures and was, therefore, not sustainable in the eye of law.
21. On the other hand, learned Counsel for the complainant submitted that the prosecution had fully established the case against Bahadar Shah accused. The real brother of Bahadar Shah accused had deposed against him and there was no reason for him to falsely depose against him.
The learned Counsel further submitted that the statement of the eye-witness who is the real brother of the main accused was supported by medical evidence as well as the other corroboratory evidence in the shape of articles through which the murder had been committed.
Learned Counsel also submitted that since at the time of recovery of the dead body, it was swollen, therefore, the mark of blow given by Mukamil Shah could not be seen on the dead body. The learned Counsel further submitted that the prosecution has proved the case beyond any shadow of doubt and, therefore, the accused were rightly convicted and sentenced.
22. The learned Assistant Advocate General, appearing for the State supported the arguments raised by the learned Counsel for the complainant and also supported the impugned judgment.
23. We have heard the learned Counsel for the parties and have also perused the record.
24. At the very outset we would observe that the conviction was legally not sustainable in the eye of law as the accused could not be convicted under section 17(4), Haraabah of the Offences Against Property (Enforcement of Hudood) Oidinance, 1979. Haraabah has been defined in section 15 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but punishment for the said offence could be awarded as Hadd under section 17(4) of the Ordinance. For imposing Hadd the criteria of evidence has been provided in section 7 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Section 16 provides that the provisions of section 7 shall apply mutatis mutandis for the proof of Haraabah. As such punishment as Hadd under section 17(4) could be awarded only if evidence in accordance with section 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was available. The present case did not qualify the test given in section 7 of the Ordinance and in absence of that evidence Hadd could noi be imposed. Secondly under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 the only penalty was death imposed as Hadd and no other penalty could be awarded. If the accused had pleaded guilty as provided in subsection (a) of section 7 or the evidence available in section 7 was provided the only penalty which could be imposed was death and not life imprisonment. Since the accused had neither pleaded guilty nor the required evidence was available, so the conviction recorded under section 17(4) and that too of life imprisonment is totally illegal. However, if evidence provided for imposition of Hadd was not available, the accused could be convicted under Tazir. The accused, under section 237, Cr.P.C., could be convicted for another offence for which they were not charged provided offences are cognate and not distinct. The accused as such could be convicted under section 392 read with section 302/34, P.P.C. As the two offences provided in section 17(4), Haraabah of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 392 read with section 302, P.P.C. Were not distinct offences.
25. Coming to the facts of the present case, it is clear that the dead body was recovered from a lonely place. Nobody had been charged in the FIR. The dead body had been recovered on 25.02.2010 whereas the accused was charged on 03.03.2010 as such there was delay of about six days. The accused were firstly charged by Muhammad Ijaz, brother of the deceased. According to his statement the deceased had disappeared on 21.02.2010 and if that period is also included then for ten days nobody was charged. This delay has not been explained. There is also no evidence on record available to show that how the complainant party or the police came to know that the accused/appellants were involved in the case.
26. The main connecting evidence is the recovery of motorcar. The said motorcar was produced by PW.6 Asad Zia. According to his own statement he was related to deceased Riaz. It is strange that the car was brought by accused Bahadar Shah to Asad Zia and he did not know that the car belonged to his relative i.e. Deceased Riaz. Again it is unbelievable that he paid an amount of Rs.1,90,000/- without giving even a receipt. The excuse put forward by the witness that the writing pad had finished is unbelievable. According to his own statement he had left the business of bargain and there is no evidence that the bargain centre actually existed at Takla Bhai. The registration book of the car was not produced before the Court and it is not known as to who was the actual owner of the said car. Even the car was not produced before the Court. In addition to that the alleged snatching or recovery of the car is with respect to accused Bahadar Shah only.
PW.6 in his statement before the Court had stated that Bahadar Shah accused was accompanied by a lady but he had not mentioned her name. In cross-examination of his statement he submitted that at the time of handing over the vehicle to police only he was present. He also admitted that the value of the vehicle was much more than the sale consideration which was to be paid to the accused. In these circumstances the recovery of the car and snatching of the same becomes doubtful and cannot be believed. The second recovery is of mobile set. The prosecution story is that on the pointation of Bahadar Shah accused one Nokia Mobile was recovered from the place of occurrence. According to the available evidence the sim of the said mobile was not available and there is nothing on record to show that the Nokia Mobile actually belonged to the deceased. In addition to that there I are two recovery memos Ex.PW.4/4 and Ex.PW.4/5. Ex. PW.4/4 shows that in presence of the witnesses one Nokia Mobile No. 1203.2 with receipt No.75 dated 23.01.2010 and CNIC No.16101-7063269-1 was recovered. The second recovery memo is Ex.PW.4/5 which shows that on the pointation of accused mobile along with a receipt of Peshawar Property Centre was recovered but this recovery memo does not show the number and make of mobile. There is nothing available on record to show that the mobile set actually belonged to the deceased Riaz. It is also strange that both the recovery memos were signed by ASI and Head Constable. ASI Zahid Khan appeared as PW.4 and in his statement stated that on the basis of Ex.PW.4/4 and Ex.PW.4/5 mobile was recovered on pointation of accused. If the mobile set was recovered on the pointation of the accused from the place of occurrence, the police was required to associate witnesses from the locality but it is strange that both the H recovery memos were witnessed by police officials. As such even the recovery of mobile phone is doubtful and does not connect the accused with the alleged offence.
27. As far as statement of Mukamil Shah PW.2 is concerned, that cannot be believed as there is unexplained delay of about 6/7 days. The occurrence took place on 25.02.2010 whereas his statement was recorded on 03.03.2010 by the police. Admittedly he belonged to Talkt Bhai so by all means he was a chance witness. If being a brother he tried to involve his brother in such a heinous offence, he cannot be considered as a truthful witness. He has not given any reason as to why he remained mum for such a long time.
28. In judgment titled Ghulam Qadir and 2 others v. The State reported as 2008 SCM R 1221 it was held that belated examination of a witness by police may not be fatal to prosecution but where delay is unexplained, accused has not been named in FIR and circumstances justify that open FIR and delay have purposely been manoeuvred to name accused later, such managed delay and gaps adversely affected the prosecution case.
29. In the present case the dead body had been recovered along with the articles allegedly used for committing the murder so in such a situation the belated statement of the alleged eye-witness cannot be believed.
30. The statement of Muzamil Shah PW.2 is also in contradiction with the medical evidence as according to him accused Mukamil Shah had given a blow to the deceased on his head but this version is not supported by the medical evidence. The contention of the learned Counsel for the complainant that since the dead body had been decomposed, therefore, the mark of blow could not be seen, cannot be accepted.
31. Again the statement of Muzamil Shah PW.2 that the dead body was lying in the house for three days, he knew this fact but did not inform the police and after three days the accused again came and thereafter they put it in a bag, cannot be believed. It is not known as to why the witness did not disclose this fact to the police or anybody else that the deceased had been done to death and dead body was lying in the house. It is also unbelievable that for three long days the dead body was lying in lonely house and nobody from the neighbourhood had come to know about that, because usually in-three days the decomposition of the dead body starts. If it is believed that PW.2 Muzamil Shah knew about the death of the deceased and also knew of the fact that the dead body was lying in the house and he remained silent, then he was also involved in the offence. In judgment titled Muhammad Khurshid Khan V. Muhammad Basharat and another reported as PLD 2007 Supreme Court (AJ&K) 27 it was held that if the testimony of a chance witness finds corroboration from any other circumstance or from any Other evidence in the form of recoveries and medical evidence, then that can be relied upon. If a chance witness reasonably explains his presence at the place of occurrence and states about the occurrence in such a way that inspires confidence and it is also corroborated by any other evidence or circumstances, then the same can be considered along with the other circumstantial evidence.
32. In the present case the witness had not explained his presence at I, the place of occurrence, simply saying that he had come 2/3 days earlier to the house of his brother and now suddenly had given statement against his brother shows his strange attitude. His statement is not corroborated by any other evidence. The contention of the learned Counsel for the complainant that the corroboration is available in the form of recovery of rope and bag cannot be believed, for the reason that those articles had earlier been recovered and after unexplained delay of a week the statement of this witness was recorded so it cannot be said that the witness had corroborated the occurrence.
33. If the two recoveries of motor car and the Nokia Mobile are kept aside then there is no motive for the offence as to why the Maccused/appellants killed the deceased.
34. In the above circumstances, we are of the view that the conviction recorded and sentence awarded to the two accused/appellants namely Mukamil Shah and Bahadar Shah was illegal.
Resultantly, we allow Cr. Appeal No.9/P/2012 filed by appellant Mukamil Shah and Cr. Appeal No. 1/P/2013 filed by appellant Bahadar Shah, set aside the judgment dated 17.11.2012 of the learned Additional Sessions Judge-VII, Peshawar and acqujt the appellants Mukamil Shah and Bahadar Shah of the charges leveled against them. The two appellants be set free if not required in any other criminal case.