QAZI MUHAMMAD AMIN AHMED, J:-. Shahzad Hameed and Muhammad Suleman, appellants herein, stand convicted under Sections 408, 201, 302 (b), 364 read with Section 34 of the Pakistan Penal Code, 1860; on the charge of homicide, the former was sentenced to death while the latter to imprisonment for life with payment of compensation; for abduction they were sentenced to 10 years RI with Rs.50,000/- fine each; for screening of evidence 7-years RI with fine of Rs.25,000/- each and for criminal breach of trust 5 years RI with fine of Rs.25,000/- each, respectively; in the event of non-payment of payment of fine and compensation, they were directed to undergo imprisonment for terms ranging from 3 to 6 months on each default vide impugned judgment dated 6-7-2013 by the learned Sessions Judge Sahiwal.
Prosecution case is structured upon application dated 25-11-2009, Ex.PB, addressed to Station House Officer Police Station Farid Town by Nadim-ur-Rehman (PW-11) received by Khadim Hussain SI (PW-15), 6:15 a.m. at Comprehensive Chowk Sahiwal wherein it is asserted that the complainant and Khalil-ur-Rehman, deceased, a retired Wing Commander, real brothers inter se, jointly resided in Farid Town Sahiwal and carried on the business of a cold storage besides looking after a charity hospital. Shahzad Hameed appellant was employed by the deceased as his manager whereas Muhammad Suleman served as a watchman. It is alleged that on 22-11-2009 at 6:30 a.m. while the deceased was present with the complainant and Hamid-ur-Rehman (PW-4), both the appellants visited the deceased at his residence and deceitfully took him in their car towards Islamabad within the view of Aurangzeb PW. It is complainant's case that as the family failed to establish contact with the deceased on his cell phone, the appellants were approached at their residence and upon inquiry after initial hesitation, they admitted one by one that they had deceitfully taken the deceased via motorway in District Chakwal where one of them, namely, Shahzad Hameed shot him down whereafter the deceased was thrown away; they disclosed that as both of them misappropriated a huge amount, they murdered the deceased when confronted with their misconduct; they undertook to return the amount lying with their some relative in Islamabad. According to the complainant, the appellants were subdued and handed over to the police. Khadim Hussain, SI/Investigating Officer (PW-15) took both the appellants into custody along with complaint Ex.PB. After initial investigative steps that included recording of statements of witnesses and preparation of site plan of deceased's residence, the Investigating Officer proceeded to Rawalpindi in search of the dead body along with the accused and according to him, as they reached near Poll No.323 at the motorway, both the appellants pointed out, one by one, the place where they had thrown the dead body of the deceased; during spot inspection, a casing of 30-caliber (P-18) and bloodstained earth were secured vide inventory. Hamid Ullah Khan, Inspector Motorway Police (PW-4) was associated with the investigation, who shared receipt of information about presence of dead body through Zulfiqar and Saeed whereafter Chontra Police was informed and a formal case was registered at 8:00 p.m. on 22-11-2009 through complaint Ex.PW-4/A vide FIR No.271. It was taken to the mortuary where Dr. Muhammad Ilyas, since dead, conducted autopsy on 22-11-2009 at 11:00 p.m. According to the autopsy report Ex.PW - 12/A, a lacerated circular penetrating firearm wound was noted on the root of back of neck with its corresponding exit on the left cheek leading to hemorrhagic shock and ultimate death; death occurred within 10 to 15 minutes whereas time between death and postmortem was estimated as within 8 to 18 hours; from the morgue, the dead body was taken over by the family and buried in Rawalpindi. Incriminatory material secured by Chontra Police was transposed into the file of the case registered at Sahiwal; it comprised of belongings of the deceased as well as clothes last worn by him. On 29-11- 2009, Muhammad Suleman, pursuant to a disclosure, led to the recovery of I.D. card (P-15), wallet (P-19) followed by Shahzad Hameed appellant, who led to the recovery of car (P-20) along with its registration book, secured vide memos.
Both the appellants also led to the recovery of bank cheques, application addressed to the bank for loss of a cheque book and amounts allegedly embezzled by them. A 30-caliber pistol (P-16) was recovered on 6-12-2009 on the disclosure of Shahzad Hameed appellant whereafter they were sent to face trial. The appellants confronted their indictment with denial on 22-11-2009 and claimed trial, pursuant whereto, the prosecution produced as many as fifteen witnesses besides placing reliance upon forensic reports and other documentary evidence.
Prosecution case is hinged upon evidence of last seen, extrajudicial confession, recovery and motive for the crime; Nadim- ur Rehman (PW-11) and Hameed-ur-Rehman (PW-14), real brothers of the deceased are witnesses of last seen as well as extrajudicial confession, one of them, namely, Nadim-ur-Rehman attested recovery of pistol (P-16) as well. The appellants confronted prosecution evidence with a unanimous denial describing the deceased as Ameer of Jamat-e-Ahmadia, who coerced them for conversion and according to them, upon their refusal, they were falsely roped in the case; they also produced witnesses in their defence to establish torture inflicted upon them during their confinement at the police station.
The learned trial Judge, however, proceeded to convict and sentence the appellants as referred to above vide the impugned judgment, vires whereof, are being challenged through Crl. Appeal No.90-J of 2014; Murder Reference No.54 of 2013 seeks confirmation of death penalty awarded to Shahzad Hameed appellant; Crl. Appeal No.334 of 2013 by Shahzad Hameed through a counsel is superfluous, as he has already questioned his conviction and sentence through jail appeal referred to above. Crl. Revision No.307 of 2013 is aimed at enhancement of sentence awarded to Muhammad Suleman appellant whereas Crl. Revision No.128 of 2013 by Shahzad Hameed appellant is against order dated 16-2-2013 whereby complainant's application for initiation of proceedings against DW-5 for perjury was kept pending; these are being decided through this single judgment.
2. Learned counsel for the appellants contend that the learned trial Judge grievously erred in placing implicit reliance upon inherently flawed and self-destructive statements of Nadim-ur Rehman and Hameed-ur-Rehman, PWs to return a guilty verdict on a capital charge; that story related by the PWs is extremely improbable, it is concocted on the face of it as well; that evidence of so called last seen does not fit within the ambit of proximity of time and space and alleged extrajudicial confession in a joint session was liable to be excluded from consideration; that evidence of pointing out of place of occurrence and memo thereof do not constitute information within the contemplation of Article 40 of the Qanun-e-Shahdat Order , 1984 and thus were liable to be excluded from consideration; that narratives rendered by the PWs failed to constitute chain of circumstances to establish an inter se nexus; the bottom line of submissions made at the bar is that it would be grievously unsafe to maintain the convictions. Contrarily , the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and not only prayed for confirmation of death penalty awarded to Shahzad Hameed but also prayed for enhancement of sentence inflicted upon Muhamma d Suleman on the ground that they in a cold blood deceived their paymaster and callously murdered him and as such deserved no leniency .
3. Heard. Record perused.
4. Statements of Nadim-ur-Rehman (PW-11) and Hameed-ur-Rehman (PW-14) constitute the mainstay of the prosecution case; they claimed to have seen the deceased on 22-11-2009 at 6:30 a.m. at their residence when he was deceitfully taken towards Islamabad by the appellants within their view; their acquiescence while the deceased was being taken away , that too deceitfully , is mindboggling. Even otherwise, apparently , there was no cause or reason for the deceased to undertake a long journey with the employees on his payroll; given his background, he was man of no ordinary prudence to be duped so easily . Equally intriguing is silence of the PWs for as many as three days, particularly when the deceased failed to respond to their calls same evening. It is complainant' s own case that the family started search soon thereafter and in this backdrop it took them no less than three days to approach the appellants. Prosecution evidence for the purposes of last seen, when examined in terms of time and space is found far from being satisfactory , as the deceased statedly accompanied the appellants at Sahiwal in the morning of 22 of November and was lastly found by the family in a morgue at Rawalpindi; the hypothesis of last seen in view of difference both in terms of time as well as space, being poles apart hardly advance the prosecution case. Pointing out of the place by the appellants on 25-11-2009 where, according to prosecution's own case, the Motorway Police had already spotted the dead body on 22-11-2009 would not saddle them with any consequence, as it does not constitute information within the contemplation of Article 40 of the Qanun-e Shahdat Order, 1984; According to Hameed-ul-Ullah Khan Inspector (PW-4), he received information about the presence of dead body at about 4:00 p.m; this point of time when correlated with the time between death and postmortem as estimated in the autopsy report being between 8 to 18 hours conclusively contradict the story of departure from Sahiwal at 6:30 a.m.
Extrajudicial confession from the same source hardly improves upon the prosecution case, as in the absence of any compelling reason, there was no point for the appellants to make their breast clean merely to retract therefrom soon thereafter; both of them are attributed confession through a joint rendition albeit with an explanation at the end that narrative was made individually by each of them, one by one; this exercise by the witnesses speaks volumes in itself as it is seemingly calculated to circumvent the issue of admissibility of a joint disclosure. The confession attributed to the appellants is otherwise very comprehensive, as it details all the relevant facts needed to prosecute the crime; it is nothing less than an encyclopedia of the prosecution case. A person either under the stress of his conscience or circumstances, as the case may be, is seldom so expressive. Even otherwise, evidence of extrajudicial confession is universally regarded as a weak piece of evidence; it can be contrived conveniently almost in every case where direct evidence is lacking; re- affirmation of extrajudicial confession by the second witness and its intended corroboration with another flawed piece of evidence i.e. the so called last seen would again fail to improve upon prosecution case, as one weak piece of evidence cannot corroborate another weak piece of evidence. Seizure of a casing from the spot on 25 when it was already inspected by Chontra Police on 22 admits a real space and possibility of its subsequent manipulation, as it would not have escaped notice of the Investigating Officer during his first spot inspection; the exercise, on the contrary, adversely reflects upon the attempts to frame the appellants with the charge. Cheque book and other material relied upon by the prosecution to establish the motive takes us nowhere. It is by now well settled that in a case structured upon circumstantial evidence, various pieces and links thereof, must be intertwined with one another, inexorably in such a way whereby every hypothesis of accused'snd th nd innocence stands excluded; it is not a case in hand, therefore, it would be grievously unsafe to maintain the conviction.
Consequently, by extending benefit of doubt to the appellants, Crl. Appeal No.90-J of 2014 is allowed; impugned judgment dated 06-07 2013 is set aside; they are acquitted from the charge; Shahzad Hameed appellant is in custody and shall be released forthwith if not required in any other case; Muhammad Suleman appellant is on bail; his bond is cancelled and surety discharged. Crl. Revisions Nos.307 and 128 of 2013, still at the threshold, are also dismissed.