MANZOOR HUSSAIN SIAL, J.-Mansha son of Thiraj and his brother Jagga were tried for the murder of Muzammal Hussain son of Rustam Ali by the learned Additional Sessions Judge, Sheikhupura. The learned trial Judge vide his judgment dated 4th June, 1979, acquitted Jagga accused, but convicted . Mansha under sections 302/3641201, P. P. C. He was sentenced under sec--tion 302, P. P.
C. To death and a fine of Rs. 10,000 or in default to suffer rigorous imprisonment for two years. He was also sentenced under section 364, P. P. C. To R. I. For seven years and under section 201, P. P. C.
To R.1. For three years.
The amount of fine, if realised, was directed to be paid as compensation` to the heirs of Muzammal Hussain deceased.
2. The condemned person challenged his conviction and sentences in appeal and the case is also before us on reference under section 374, Cr. P. C. For the confirmation of his death sentence.
This judgment will dispose of the appeal and the reference.
3. According to the prosecution, the appellant was arrested on 10th December, 1976, by Abdullah Khalid S. H. O. P. W. 13 under section 54, Cr. P. C. In a case under sections 457/380, P. P. C. Registered on 23-1-1976 at Police Station Nankana, District Sheikhupura. During interrogation, he disclosed that, accompanied by his brother Jagga, he had murdered Muzammal Hussain and voluntered to point out the place of his burial. On this dis--closure, the Investigating Officer on 11th December, 1976, moved application (Exh. P. L.) to Assistant Commissioner, Nankana, for deputing a Magistrate to supervise the recovery proceedings of dead body ; and a Medical Officer to perform post-mortem examination. Simultaneously, he informed the relatives of the deceased. According to the direction of Assistant Commissioner, on the same day, Agha Ali Khan M. I. C. (P. W. 12), Dr. Abdur Razzaq, Medical Officer, Civil Hospital, Nankana, the Investigating Officer, with appellant under police custody, and relatives of the deceased reached the place of recovery. On appellant's pointing out a place, near a watercourse was .Dug, wherefrom some bones of human skeleton with shalwar P. 3, shirt P. 4, handkerchief P. 5, having name of deceased embroidered thereon, and amulet P. 6 were recovered, which were taken into possession vide memo. Ex. P. E. By the Investigating Officer. The dead body. And articles recovered were identified by Rustam Ali (P. W. 4) and Shabbir Hussain (P.
W. 10) as of Muzammal Hussain deceased.
4. The Investigating Officer then recorded statement Exh. P. D. Of Rustam Ali, the father of Muzammal Hussain deceased, who stated that the com--plainant and his son had been dealing in purchase and sale of waste paper and had set up business at Fateh Sher Road, Mozang, Lahore.
The appellant worked with them and used to tie waste-paper bundles at the business premises.
The appellant unduly influenced Muzammal Hussain and made him believe that he was "Pir" having spiritual power and had "Dins" at his command. He could send him to Mecca for performing Haj and had been extorting money from the deceased. On 25-7-1976, the appellant took him away and informed the complainant that he had sent him to Mecca Madina, but in fact murdered him.
5. The motive for the murder was to appropriate for good thirteen or fourteen thousand rupees already extorted by the appellant from Muzammal Hussain deceased.
6. The Investigating Officer after recording statement Exh. P. D. Sent the same through Rasul Bakhsh Constable to the Police Station, Nankana, for registration of the case.
7. On 25-12-1976, the appellant while in police custody led to the recovery of rifle P. 1 from his residential house which was secured vide memo. Ex. P. B. The Investigating Officer completed investigation and submitted the challan in the trial Court.
8. Dr. Abdur Razzaq who performed post-mortem examination on the dead body on 11-12-1976 had gone abroad and could not appear at the trial. The post-mortem report Exh. P. J. Made by him was, however, proved by Sardar Ali, Dispenser (P. W. 8). The report revealed that all bones of the skeleton were separated and had . Neither muscle nor tendon attached there--with. The skull and the vertebra were also separated. The left side 5th rib had fractured while 6th rib was perforated and had blackening thereon. The shirt found near the dead body had a hole on front left side of chest, but there was no corresponding hole on left back side of shirt. The doctor's opinion as recorded in the report was that the deceased had probably died of fire-arm injury resulting fracture of ribs.
9. At the trial, the appellant pleaded not guilty and denied all the prosecution allegations against him. He professed innocence and explained his involvement in the case due to ulterior motive of the Investigation Officer, who had detained him long before the alleged recoveries.
He, however, called no evidence in defence.
10. The prosecution led no direct evidence against the appellant and relied on circumstantial evidence comprising "last seen evidence", the medical evidence, the evidence of motive and incriminating recoveries.
11. Placing reliance on the prosecution version which rested mainly on the testimony of Rustam Ali (P. W. 4) Shahmand Ali (P. W. 5), Fida Hussain (P. W. 10), Shabbir Hussain (P. W. 11), Agha Ali Khan (P.
W. 12) and Abdullah Khalid (P. W. 13), the learned trial Judge held that the guilt of the appellant had been brought home to the appellant and, accordingly, convicted and sentenced him.
12. It was strenuously argued on behalf of the appellant that the circumstantial evidence led by the prosecution in this case was neither sufficient nor of the quality to sustain conviction of the appellant on a charge entailing capital punishment. The recovery of articles P. 3 to P. 6, the wearing apparel, were planted to fabricate evidence for identification of the dead body. It was also argued that recovery of rifle P. 1 did not advance the case of prosecution either, as it was not sent to Ballistics Expert for examination and opinion.
13. Learned counsel for the State supported the appellant; s conviction and sentences. He argued that the recovery of dead body effected at the instance of the appellant, who had exclusive knowledge of the place of burial and the evidence of Agha Ali Khan (P. W. 12), Shahmand (P. W. 5), Shabbir Hussain (P. W. 11) and the complainant, in whose presence recovery was made, corroborated "last seen evidence". Learned counsel cited Abdus Samad v. The State (1) and Allah Ditto v. The State (2) in support of his submission. It was further stated that the prosecution witnesses who furnished evidence against the appellant had no animus to implicate him falsely in the case. It was lastly submitted that the handkerchief P. 5 recovered with the word "Mutammal Hussain" embroidered thereon, established the identity of the dead body and connected appellant with the commission of the crime.
14. We have heard the learned counsel for the appellant and the State and have perused evidence on the record with their assistance.
15. Admittedly the actual occurrence in this case was witnessed by none and the prosecution had to rely only on the circumstantial evidence which consisted of "last seen evidence". Evidence of motive, recoveries and medical evidence.
(1) PLD 1964 SC 167(2)r 1968 S CMJR 378
16. The prosecution produced Rustam Ali (P.- W. 4), Fida Hussain (P.~W. 10) and Shabbir Hussain (P.
W. 11) to prove that on 25-7-1976, the deceased was seen with the appellant. Rustam Ali complainant is father of the deceased. Shabbir Hussain (P. W. 11) is his brother. Fida Hussain (P. W: 10), is a tonga driver and had relations with the complainant. Fida Hussain (P..W,, 10) in his examination-in-chief posed as if he was. Just a neighbour of the deceased. He concealed his relations but was confronted with his previous statement Exh. D. A. Wherein he had admitted his relations with the complainant. It also came to light that the complainant and this witness were originally residents of Sialkot and were residing in one Ahata at Fateh Sher Road, Lahore. He also disclosed that he had accompanied Rustam Ali (P. W. 4) and Shabbir Hussain (P. W. -I1) to Police Station, Nankana and remained with them at the time and place of recovery. His special interest in the prosecution case can further be assessed from the fact that he introduced a "bag" carried by the deceased when he was with the appellant, although not stated so in his statement before the Investigating Officer. He did not lay information before the police for over four months for having seen the deceased lastly with the appellant nor made statement immediately after he .Was contacted by the police, a day prior to the recovery of the dead body. He waited to make statement only after the recovery of the dead body of Muzammal Hussain with clothes. Similarly, Shabbir Hussain and Rustam Ali P.Ws., the brother and father of the deceased, remained mum and did not report the matter to the police for such a long time, nor did they make statement before the police that they had lastly seen the deceased in the company of the appellant ; they waited until the dead body was recovered and came out with a version that deceased had gone with the appellant: The evidence furnished by these prosecution witnesses to connect the appellant with the commission of crime, with the infirmities ; highlighted hereinafter ; does not inspire confidence to sustain conviction and confirmation of death sentence.
17. The medical evidence relied upon by the prosecution in this case is the post-mortem report Exh.
P. J. Of Dr. Abdul Razzaq, which indicated fracture of 5th rib and 6th rib perforated with blackening thereon. There' was hole in shirt P. 4 on front left side of the chest with no corresponding hole detected on the back side, which proved that if the deceased suffered bullet injury the same remained in-the body, but no bullet or lead was found from the place of recovery, despite thorough search made by the P. Ws. The rifle recovered at the instance of the appellant was not sent to Ballistics Expert for ascertaining as to whether the same was used in the occurrence, therefore, mere fracture of ribs detected could not provide corroboration to the prosecution case, unless the rifle recovered was proved to have beep used in perpetrating the crime.
18. In order to prove that the appellant had motive to do away with the life of Muzammal Hussain, the prosecution relied on the testimony of the complainant who deposed that the appellant had killed him because he had extorted thirteen or fourteen thousand rupees from the deceased. The solitary statement of the complainant without corroboration is not enough to prove motive part of the prosecution case, mainly for his own admission that the amount was not paid to the appellant in his presence. There is nothing on the record to suggest that there occurred any altercation between the deceased and the appellant prior to his disappearance. We, therefore, hold that the motive set up by the prosecution was not proved. We, however, observe that it is not essential to ;prove motive in all eases for passing legal orders of conviction because of the existence of motiveless murders and murders committed with mysteriously hidden motive, but it is well settled principle that once motive is set up by the prosecution, then onus lies on it to prove the same. The factum of its non-proof or having it proved false throw shadow of doubt on the entire prosecution version. In that case, a duty is cast on the Court to scrutinize evidence with more care and caution.
19. The other evidence on which the prosecution mainly relied to establish involvement of appellant in the commission of the crime was the recoveries of human skeleton with wearing apparel comprising shalwar P. 3, shirt P. 4, handkerchief P. 5 and amulet P.. 6 at his instance. To prove the recovery of dead body and articles P. 3 to P. 6, the prosecution produced Shahmand (P. W. 5), Shabbir Hussain (P. W. 11), Agha Ali Khan (P. W. 12), Abdullah Khalid (P. W. 13) and the complainant.
The substance of their evidence is that on 11-12-1976, the appellant led the prosecution witnesses to the place of recovery wherefrom on his pointing out the bones and articles P. 3 to P. 6 were recovered and the same were of Muzammal Hussain deceased. It is in the evidence of the complainant as well as the Investigating Officer that the dead body was not identifiable from the bones recovered and it was on the basis of the clothes that the complainant identified the dead body of Muzammal Hussain deceased.
20. The question which falls for determination is as to whether the clothes recovered were of the deceased and worn by him at the time of his death. Shabbir Hussain (P. W. 11) admitted that the clothes and amulet recovered were of common type and neither tailor who sewed them nor washerman who used to wash them was produced to identify them. He, however, denied the suggestion that the handkerchief with word "Muzammil" embroidered thereon was subsequently planted to strengthen the prosecution case. The complainant as well as his son Shabbir Hussain (P.
W. 11) admitted that they did not make any statement before the police regarding the clothes worn by the deceased, when lastly he left the house. It is noteworthy that even in the statement Exh. P. D.
Made before the Investiga--ting Officer, after the recovery of the dead body and the clothes, on which F. I. R. (Exh. P. H.) was drawn, the complainant did not mention about the description of the last worn clothes of the deceased.
21. The complainant admitted that on 9-12-1976 he reached Nankana at 3-00 a. m. And met Abdullah Khalid S. H. O. In the morning ; he did not . Record his statement. The appellant was also there. Ire further deposed that Shabbir Hussain, his son contacted the appellant 15/20 days after the departure of Muzammal Hussain with him and he was told that he had been sent to Mecca- Madina. He further stated that Shabbir Hussain P. W. Again met him 18-20 days before Eid ul Azha and he demanded Rs. 2,000 for return of Muzammal Hussain to country as he was involved in some case in Saudi Arabia. The complainant made improvements in his statement at the trial and he was confronted with his previous statement Exh. P. D. Amazingly, this part of his statement was not even corroborated by Shabbir Hussain, his son. This was, therefore, vain attempt on his part to fortify prosecution case. The complainant had admitted that at the relevant time the Magistrate was sitting at a distance of 2/4 karams from the place of recovery. Shabbir Hussain (P. W. 11) admitted that Fida Hussain (P. W. 10 and Rustam Ali complainant went to Police Station Nankana and reached there on.10-12-1976. They remained at the Police Station on 10-12-1976 and 11-1,2-1976 before the recovery of the dead body.
22. Abdullah Khalid (P. W. 13), the Investigating Officer, stated that he arrested Mansha appellant on 10-12-1976 in connection with case under section 457/380, P. P. C. Registered on 23-1-1976 at the Police Station Nankana. He admitted that he did not record statement of the complainant, before the recovery of dead body. He stated that relatives of the deceased met him on 11-12-1976 at about 11-00 a.m. And went in a jeep with them to the spot and did not send them to the place of recovery before he reached there,- He not only contradicted the complainant but also Agha Ali Khan (P. W. 12) who bad stated that the relations of the deceased were present at the spot when he accompanied by S. H. O. Reached there.
23. Shahmand (P. W. 5), another witness of the recovery of dead body, reached the spot when the place- was already being dug and left the place when two or three bones came out of the grave.
He did not ' witness the recovery of the entire remains of the dead body and the clothes from grave as he had left the place and revisited when memos were prepared. Agha Ali Khan stated that accompanied by S: H. O. He went to the spot and at the pointing out of appellant, the place was dug, whereftom the dead body and the clothes were recovered. He signed recovery memo. Exh. F. F.
He was not sure as if he prepared an inquest report and the version recorded by him was different than it was set up by the prosecution.
24. The resume of the above evidence manifests that the complainant,, his son and Fida Hussain, his relative, were in contact with the Investigating Officer at least a day prior to the arrest of the appellant and were aware of the place where dead body was buried. They were already at the spot before the Magistrate, the Investigating Officer and the appellant under police custody reached there. The complainant and his son did not mention about the description of the clothes lastly worn by the deceased nor made statements to the police earlier to the recovery of the dead body, which fact alone throws shadow of doubt about the authenticity of the recovery of these articles. The contact of the complainant and his son with the Investigating Officer prior to the arrest of the appellant stands proved and falsifies the version as given by the prosecution. Their knowledge about the place of recovery before the arrival of the Magistrate and the appellant, speaks volumes about the possibility of the collusion of the Investigating Officer with them. The conduct of the Magistrate id not recording inquest proceedings supervised by him and being only signatory to recovery memos prepared by the Investigating Officer also shows that he casually visited the place and remained sitting at a distance of about 20 feet, as stated by Rustam Ali complainant. 'the possibility that the handkerchief was planted or shown to have been recovered when actually not recovered cannot be ruled out particularly as Shahmand (P. W. 5) stated that when he revisited the place of recovery ; the remains of dead body and the clothes had already been recovered.
25. We have noticed with concern and deprecate the frequent tendency and practice of zealous Investigating Officer to plant handkerchiefs, katches and golden rings with names of the deceased engraved thereon to strengthen the prosecution cases.
26. Keeping in view the circumstances of this case highlighted above, we do not feel ourselves persuaded to rely on the recovery of the clothes to establish the identity of the dead body and to uphold the conviction of the appellant in the absence of ocular and other evidence of unimpeachable character on the record.
27. The cases: Abdus Samad v. 'State and Allah Ditto v. State cited by the learned counsel for the State are based on distinguishable facts and cannot be pressed into service in the instant case. In A6dus Samad's arse, on 9-8-1960 a six years old girl was kidnapped and was seen with the accused by. Two independent witnesses. The case was registered after two days and the remains of her dead body and some pieces of her last worn clothes were recovered after about-a fortnight.
There was evidence of extra -judicial confession, the statement of woman who tailored her frock.
The opinion of the Anatomical Expert about the skull, which was considered reliable evidence to connect the accused with the crime.
Similarly, in Allah Ditto's case, Muhammad Siddique lodged F. I. R. On 25th April, 1965, against Allah Ditto and other accused suspecting them for disappearance of Faiz Muhammad, his uncle, a day prior to his reporting at the Police Station. Allah Ditto was arrested, blood-stained shirt and loin cloth worn and hatchet carried by him were recovered from his possession. During interrogation, he further led to the recovery of the dead body of the deceased, which was identified by prosecution witnesses and, therefore, he was held connected with the commission of crime.
In the instant case, however, not only the F.
1. R. Was lodged after over four months but no reliable evidence was produced to connect the appellant with the commission of crime. There is neither confessional state--ment of the appellant nor any other direct evidence of unimpeachable character for safe reliance in maintaining the order of his conviction and sentences.
28. As already observed, the present case rests only on circumstantial evidence and accepted principle, in cases depending on such evidence, is that in order to justify the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused and no hypothesis consistent with the innocence of the accused can be suggested. If, however, any reasonable hypothesis consistent with the innocence of the accused can be inferred from the evidence on record, the case will have to be treated as of no evidence and the conviction set aside.
Applying this principle, to the facts of the instant case, we are satisfied that the prosecution evidence brought on the record is certainly not of that authenticity to exclude all hypothesis of appellant's innocence. We are, therefore, of the view that the case against the appellant is not free from reasonable doubt. The benefit of doubt, however, slight, must go to him. '
29. In the result, we allow the appeal, set. Aside the conviction and sentences passed on him and giving him the benefit of doubt, acquit him. The death sentence is not confirmed.