Shahid Hameed Dar, J.--Kamran alias Sher Afgan appellant was held guilty under Section 302(b), P.P.C. for the murder of Abid Pervaiz and Riasat Ali deceased, by learned Additional Sessions Judge, Attock, vide judgment dated 21.11.2008, and was convicted/sentenced to death on two counts, with direction to pay a sum of Rs. 1,00,000/-, on each count, as compensation to the legal heirs of each deceased under Section 544-A, Cr.P.C. or in default thereof to undergo simple imprisonment for six months.
2. The convict-appellant has called in question the impugned judgment through Criminal Appeal No. 349 of 2008, whereas the learned trial Court has submitted murder Reference No. 44/RWP of 2008, under Section 374, Cr.P.C. for confirmation or otherwise of the death sentence awarded to the appellant. The complainant by filing Criminal Revision No 74 of 2009 has sought enhancement in the amount of compensation. We propose to dispose of all these matters together through this single judgment.
3. Succinctly, the facts, as unfolded, by Aurang Zaib- complainant (P.W.15) in the complaint (Exh.PF), on the basis whereof F.I.R. (Exh.PF/1) was drawn up, are that he is resident of village Mirza and father of five sons; Abid Pervaiz, one of his sons was a commission agent at the vegetable market and resided in upper portion of Amin Aslam Market; Riasat Ali, police constable, a fast friend of Abid Pervaiz, also used his dera for changing his uniform; on the fateful day, i.e. 20.12.2007, the complainant along-with his son Sajid Pervaiz and Masood Ahmad went to vegetable market, as usual, to see Abid Pervaiz, but could not find him there; they got worried and went to the residence of Abid Pervaiz, at 7.20 a.m.; and noticed the outer gate of the haveli ajar; they pushed open the door of the room, and there they found the dead bodies of Abid Pervaiz and Riasat Ali lying besmeared with blood, they suspected that both the deceased had been fired at and murdered by some unknown accused during night hours; leaving Sajid Parvaiz (P.W.14) and Masood Ahmad PW (not produced) to guard the dead bodies, the complainant left for reporting the crime to the police and came across Muhammad Aslam, SI (P.W.17) at Pasha Petroleum, the same day, at 8.30 a.m., who recorded his statement and reduced into writing complaint (Exh.PF), which was despatched to the Police Station City Attock through Kausar Islam, 163/C, for registration of F.I.R. This is how, the formal F.I.R. (Exh.PF/1) Bearing No 307, dated 20.12.2007, under Section 302, P.P.C. was registered at the above said Police Station at 8.45 a.m.
4. Muhammad Aslam, SI/I.O. (P.W.17), first of all examined the dead body of Abid Pervaiz deceased, prepared injury statement. Exh.PV, inquest report Exh.PW and despatched the same to the mortuary for autopsy under the escort of Najam Shah, 388/C (P.W.9); then he examined the dead body of Riasat Ali deceased, prepared injury statement Exh.PX, inquest report Exh.PY and sent the same to the mortuary for post-mortem examination through Ghulam Zamir, 872/C (PW-10); he inspected the venue of crime, collected blood through cotton from the bed of Abid Pervaiz deceased, vide memo. Exh.PO; he secured blood stained mattress and pillow of the bed of Abid Pervaiz deceased vide memo. Exh.PQ; he then secured blood through cotton from the bed of Riasat deceased vide memo. Exh.PP besides securing blood stained mattress and pillow of the bed of the latter deceased vide memo. Exh.PR; he took into possession three crime empties of .30-foore from the spot, made the same into a sealed parcel and prepared seizure memo. Exh.PS; he secured a glass, lying near the dead bodies, vide memo. Exh.PE which bore, finger prints of some one; he also took moulds of the-finger prints and prepared memo. Exh.PE/1; all these memos were attested by Khalid Pervaiz (P.W.16) and Gharib Nawaz, PW (not produced). On the same day, Najam Shah, constable (P.W.9), produced before him, last worn clothes of Abid Pervaiz deceased, i.e. shirt (P1), shalwar (P2), vest (P3), which he secured through memo. Exh.PG; six scaled phials and an envelope were also taken into possession by the I.O vide memo. Exh.PH, attested by Najam Shah, constable (P.W.9); he also collected last worn clothes of Riasat Ali deceased, i.e. shirt (P9), shalwar (P10), vest (P11), trouser (P12) & a cap (P13), vide` memo. Exh.PK; the said police official Najam Shah constable (PW-9) also produced before him postmortem examination report, two sealed envelopes (for chemical examiner and forensic science laboratory) and six phials, which were taken into possession vide memo. Exh.PL, duly attested by Ghulam Zamir, constable (P.W.10); he got prepared site-plan in scale Exh.PA, PA/1, PA/2, & PA/3 by Bashir Ahmad Awan, draftsman (P.W.1)
5. On 1.1.2008, Amjad Khan (P.W.12) and Muhammad Ijaz PW (not produced) appeared before the investigation Officer ;PW-17) and got recorded their statements with regard to extrajudicial confession of the accused-appellant; he apprehended him on 01.01.2008; on his personal search, a pistol .30-bore (P4) and three live bullets, loaded in magazine were recovered vide memo. Exh.P1, duly attested by Najam Abbas Shah & Ghulam Zamir, constables (P.W-9 & PW 10); he prepared rough site-plan Exh.PAA qua the place of arrest of the appellant.
6. On 3.1.2008, the appellant-accused led to the recovery of three mobile phones (P5/1-3), wallet (P6), identity card (P7) and service card (P8) of Riasat Ali (deceased) from a residential room of his house, which were secured by the investigation Officer vide memo. Exh.PJ, attested by Najam Abbas Shah, constable (PW-9) & Ghulam Zamir, constable (PW-10); the I.0 prepared rough site- plan (Exh.PCC) of the place of recovery. On the same day, Rafaqat Ali (P.W.13) identified two mobile phones and one wallet to be of Riasat Ali deceased, for which identification memo. Exh.PN, duly attested by said witness was drafted; likewise, Khalid Pervaiz (P.W.16) identified the cell phone of Abid Pervaiz deceased and identification memo. Exh.PU was prepared; on 5.1.2008, the accused- appellant pointed out the place where he had committed murders of Rsasat Ali and Abid Pervaiz deceased and identification memo. Exh.PM in this respect was prepared. On completion of investigation, report under Section 173, Cr.P.C. was submitted before the learned trial Court for trial of the accused.
7. At the trial, the prosecution, in order to prove its case, produced as many as seventeen witnesses.
8. The medical evidence was furnished by Dr.Syed Zahid Akhtar Zaidi (P.W.5), a senior medical officer at DHQ, Hospital Attock, who, at 11.30 a.m., on 20.12.2007, performed autopsy on the dead body of Abid Pervaiz deceased vide post-mortem examination report Exh.PB, With pictorial diagrams Exh.PB/1 & Exh.PB/2 and found following injuries on the dead body:
1. A lacerated entry wound of bullet 1.7 cm in diameter with burnt and black margins, at left side of the forehead in the middle and 3 cm left lateral to the midline. The tissues were going into the wound.
2. A lacerated entry wound of fire-arm 3 cm in diameter with burnt, black and inverted margins at forehead touching hairline in the midline of the body.
(Note:- Blackish, small, pin point large number of spots of gun powder, in an area covering whole side of the left forehead around Injuries No. 1 and 2, whole of the left side of the nose, upper part of the left cheek and whole of the upper and lower eye-lid of the left side, some more spots were also present on the right cheek upper part).
3. A lacerated exit wound 1.5 cm shape () at the occipital area right side behind the right ear, 4. cm from the midpoint of the ear with everted margins, no burning and blackening present and brain matter oozed out of the wound.
4. A lacerated wound measuring 2.4 cm shape like ( ) behind the right ear 3. cm above Injury No. 3, with averted margins, no burning or blackening was present, it was exit wound of Injury No. 2.
The doctor opined that the deceased had died due to haemorrhage and shock caused by Injuries No. 1 to 4 which had damaged the brain. All the injuries were ante-mortem, homicidal in nature and caused by fire-arm. He, however, deferred his final opinion till the receipt of report of the Chemical Examiner in order to know, if prior to committing the murder, the deceased was poisoned or not.
The prohable time elapsed between injury and death was within a few seconds to five minutes, whereas between death and post-mortem examination within 12 to 15 hours.
9. The same medical officer (PW-5) also performed autopsy on the dead body of Riasat Ali deceased at 1.00 p.m on the same datvide? post-mortem examination report Exh.PC (pictorial diagrams Exh.PC/1 and Exh.PC/2) and found following injury on the dead body:
1. A lacerated fire-arm entry wound with burnt edges, circular in shape at the left side of occipital area 6 cm from the left middle point of ear with the dimension of 1 cm x 1 cm and 10 cm from the midline of skull. On opening the skull a bullet was recovered from right side of the fronto-perietal area just below the skull bone lying in the brain matter. The skull bone was fractured into small pieces in an area of 5 cm circular; the whole of right side of the scalp and sub-scalp area was badly damaged.
The cause of death of the deceased as recorded by the medical officer was haemorrage and shock caused by Injury No. 1 which had damaged the brain matter. The above said injury was ante- mortem and found to have been caused by fire-arm. The final opinion regarding cause of death, however, was delayed by the medical officer till receipt of report from the office of chemical examiner.
The probable time elapsed between injury and death was "few seconds to five minutes" and between death and post-mortem examination within 12 to 15 hours.
10.Aurang Zaib complainant PW-15 reiterated the story of FIR; the Wajtakkar evidence was furnished by Pervaiz Akhtar PW-11; Khalid Pervaiz PW-16 rendered the last seen evidence with the version that he, Abid Pervaiz (deceased), Riasat Ali (deceased) and Kamran alias Sher Afgan had, dined together during the course of which, at one stage, an altercation took place between Kamran accused-appellant and the deceased, which was intervened by him and Tariq PW (not produced); he further stated that he left the deceased in the company of the accused at about 10:00 p.m for going to his place of job. Amjad Khan, PW-12 is an important prosecution witness, who rendered evidence qua extra judicial confession of the accused-appellant; Najam Shah 388/C (PW-9) deposed about the recovery of .30 bore pistol (P-4) along-with three live bullets at the instance of the appellant, on 01.01.2008; he also deposed about the recovery of three mobile phones P-5/1-3, one wallet P-6, identity card P-7 of deceased Riasat Ali and his service card P-8 at the instance of the appellant, pursuant to his disclosure; Muhammad Aslam PW-17 conducted investigation of this case, the detail whereof has been mentioned in the preceding paragraphs.
Rest of the evidence is almost formal in character.
11.The learned Public Prosecutor tendered in evidence reports of Chemical Examiner Exh.PDD, Exh.PEE, reports of Serologist Exh.PFF & Exh.PGG, report of forensic Science Laboratory Exh.PHH, report of Finger Print Expert Exh.PJJ and another set of reports of Chemical Examiner regarding viscerae of both the deceased Exh.PKK & Exh.PLL and announced the prosecution case closed.
12. After closure of the prosecution evidence, the appellant accused was called upon to make statement under Section 342, Cr.P.C. who controverted all the accusations, brought against him by the prosecution and professed his innocence. He while answering the question as to why this case against him and why the PWs had deposed against him, adopted the following version: "I have been falsely involved in this case only due to suspicion. I have been made escape goat in this case as some unknown persons have committed the murders of Abid Parvez and Riasat deceased, which was untraceable and to show efficiency before the higher police officials, police has involved me in this case falsely. I am innocent."
He neither appeared as his own witness under Section 340(2), Cr.P.C. nor he opted to adduce evidence in defence.
13. The learned trial Court after hearing learned counsel for the parties and having taken into consideration the evidence available on record passed the impugned judgment, whereby the appellant was convicted/sentenced in the terms as aforementioned.
14.After having heard the learned counsel for the parties and gone through the record, we find that it is not a case of eye-witness account, as the deceased had been done to death by the appellant-accused during the night hours of 19/20.12.2007, when nobody was around him. The prosecution's case is one of circumstantial evidence, resting upon the Wajtakkar evidence, rendered, by Pervaiz Akhtar, PW-11, the last seen evidence adduced by Khalid Pervaiz PW-16, the evidence of extrajudicial confession, presented by Amjad Khan PW-12, the medical evidence furnished by Dr. Syed Zahid Akhtar Zaidi, S.M.O, PW-5, the recovery evidence produced by Najam Shah 388/C, PW-9 coupled with .the evidence of Muhammad Aslam SI, PW-17, the sole investigation officer of this case.
Aurangzaib PW-15 is complainant and father of Abid Pervaiz deceased. Sajid Pervaiz PW-14 is the real brother of the deceased. Khalid Pervaiz PW-16, the witness of last seen evidence is also the brother of the deceased. Rafaqat Khan, PW-j3, who identified two mobile phones and a wallet of Riasat Ali deceased. vide identification memo. Exh.PN is the real brother of Riasat Ali deceased, but one thing is common between them that none is inimical to the appellant.
16. The witnesses of Wajtakkar and extra judicial confession of the appellant (PW-11 and PW-12) are neither related to the deceased nor having any animosity against the appellant. Aurangzaib PW-15 is the complainant, who reported the crime to the police at 8:30 a.m on 20.12.2007 at Pasha Petroleum, when he was on way to Police Station city' Attock. He alongwith his son Sajid Pervaiz and one Masood Ahmed PW (not produced) visited the residential place of his son Abid Pervaiz at about 7:20 a.m on 20.12.2007 and were stunned to find the dead body of Abid Pervaiz and that of his chum. Riasat Ali, a police constable, bathed in their own blood, who without wasting any time left for the Police 'Station for registration of case and an attempt made by him in this regard led to registration of formal FIR Exh.PF/1 at 8:45 a.m., on the basis of complaint Exh.PF. The statement of the complainant was recorded at 8:30 a.m., thus, the FIR appears to have been lodged with promptitude. Abid Pervaiz deceased was 4th in order, of the five sons of the complainant, who was a commission agent at vegetable market, Attock and put up his residence on the upper floor of Amin Aslam Market, where he was frequently visited by Riasat Ali {deceased}, a police constable, as both of them were intimate friends.
Riasat Ali used to change his dress at the abode of Abid Pervaiz. The complainant and his son joined by Masood Ahmad, as a matter of routine, visited vegetable market to see Abid Pervaiz but he was not available at his shop. The complainant alongwith his said companions went to the house of his son, where the calamity struck them as both Abid Pervaiz and Riasat Ali were found to have been assassinated by some unknown accused. The dead bodies of both the deceased bore fire-arm injuries. The complainant could not speculate as to the probable killers, so he got lodged the FIR against unknown accused.
17. This is a case, plain and simple. As a result of investigation conducted by. Muhammad Aslam SI, PW-17, it transpired that Kamran alias Sher Afgan, appellant was a private servant of Abid Pervaiz deceased; who was not happy with his master for a variety of reasons, as mentioned by Khalid Pervaiz PW-16 in his testimony. Both the deceased, Khalid Pervaiz PW-16 and Kamran took dinner together on 19.12.2007 at the residential flat of Abid Pervaiz deceased, during the course of which Kamran appellant did not hesitate to quarrel with his master, which was intervened by Khalid Pervaiz PW-16 and Tariq PW (not produced). The main grievance of the appellant was that he was not happy with his service terms as he was not paid wages regularly by Abid Pervaiz (deceased) and sometimes he was forced to give a wash to the pet dog of his master due to which he felt insulted and degraded Khalid Pervaiz set off from the flat of his brother leaving behind Abid Pervaiz (deceased), Riasat Ali constable (deceased) and Kamran appellant, at about 10:00 p.m, as he had to go to his place of job, wherefrom, he went to his village Mirza after night long duty of watchmanship. He is the person, who had lastly seen the deceased in the company of the accused till 10:00 p.m at the place where from the dead bodies of both the deceased had been recovered.
He has rendered an important piece of evidence, but he has been hardly challenged on any fact, stated by him in his testimony. The formal suggestions, which are usually pat to a witness, though denied, to discredit him, do not appear in the statement of this witness. The very contention of PW- 16 qua having the dinner together and leaving the deceased persons in the company of the appellant-accused have not even been touched upon by the defence, which means that the said portion of the statement of the PW stands proven. The law on the point is that any portion of the statement of a witness having gone unchallenged in cross-examination shall be deemed to have been admitted by the accused. Following the said principle, we can easily hold that Khalid Pervaiz PW-16 has fully established the fact that both the deceased were seen together in the company of the appellant-accused at the same place wherefrom their dead bodies were recovered. In case of fast seen evidence, two factors are very important, one pertaining to the proximity of the place where the deceased is seen in the company of the accused and the place where the murder of the deceased is committed or wherefrom his dead body is found and, secondly, the time between the moment of having been seen together and the time of the murder of the deceased. PW-16 left the deceased and the appellant at 10:00 p.m at the abode of the deceased and three hours thereafter the appellant was witnessed stepping down the staircase of the flat of the deceased by Pervaiz Akhtar PW-11 and Akbar Khan PW (not produced). The statement of the medical officer PW-5 reveals that both the deceased had been done to death within 12 to 15 hours from the time of post- mortem examination of the dead bodies which was conducted by the said medical officer at 11:30 a.m., and 1:00 p.m., on 20.12.2007. It means that both the ill-fated persons might have been killed between 10:00 p.m. to 1:00 a.m. The last seen evidence rendered by PW-16 is credible and worth reliance.
18. Pervaiz Akhtar PW-11 resided in a rented room, situated near Amin Aslam Market, he alongwith 5/6 others had got the said room on rent from Amin Aslam, the landlord. He stated in his testimony that at night between 19/20-12.2007, he alongwith Akbar Khan PW (not produced) went to vegetable market at about 1:00 a.m. After parking their vehicle in the market they were moving towards their rented room when they saw Kamran accused stepping down the staircase of the flat, situated in Amin Aslam. Market. They inquired from him as to what he was doing there at odd hours of the night, in repiy to which he said that he was going to the bus stand. They did not smell anything foul from the answer given by the appellant, so they went to their place of rest and on the following morning they learnt in the vegetable market that, Abid Pervaiz and Riasat had been murdered in the flat of Abid (deceased). Pervaiz Akhtar PW-11 was also a vegetable dealer, who used to transport the vegetables to the market by means of his vehicle, Sunni Pickup and in this business one Akbar was his partner. It is a matter of common observance that the vegetables are supplied in the market almost after the midnight so as to be sold by the commission agents either in the wee hours of the day or at dawn. For this purpose different modes of transportation are used by the growers, whole sellers or the commission agents. There is nothing unusual in the statement of PW-11 when he states that he had parked his vehicle in front of the upstairs, near the gate. Flat resided by the deceased was situated on the first floor of Amin Aslam Market and a staircase connected the said flat with the ground floor According to the statement of PW-11 the staircase was in front of them when they de-boarded their vehicle and saw Kamran appellant-accused at about 1:00 a.m. descending down the stairs. As they worked in the same market so being acquainted with him, they out of curiosity inquired from him as to what he was doing, in reply to which he stated that he was going to the bus stop. The appearance of the appellant at 1:00 a.m just close to the outer gate of the said building was not an ordinary circumstance, so the dialogue of PW-11 with him is neither surprising nor unbelievable. The deceased persons and Kamran appellant had been left at 10:00 a.m, as discussed earlier by PW-16 at. the same flat, in the stairs whereof, the appellant was witnessed moving clown, by Pervaiz Akhtar PW-11 and his co-witness Akbar Khan. It-means that the appellant had left the suite of the deceased-after about 3 hours since the time of departure of PW- 16 from the house of the deceased. The statement of this witness does not contain any improvement nor if shows any contradiction and this PW has stood the test of cross-examination with confidence.
19. When we look at the medical evidence presented by Dr. Syed Zahid Akhtar Zaidi, S.M.O, PW-5, we find that both the deceased had been fired at from the point blank range. The post-mortem examination of the dead body of Abid Pervaiz deceased was conducted at 11:30 a.m on 20.12.2007 vide post-mortem examination report Exh.PB (pictorial diagrams Exh.PB/1 and Exh.PB/2). This dead body bore four fire-arm injuries two entry wounds both on the forehead and two exit wounds almost at the same locale i.e. behind the right ear. The margins of both the entry wounds were burnt and blackened. The burning of the edges of fire-arm wound in respect of a rifled weapon like pistol .30 bore can occur up to a distance of 4 inches to 6 inches, thus, denoting that Abid Pervaiz deceased had been fired at from a very close range. The timings mentioned by the medical officer (PW-5) in the post-mortem examination report are very important. He has mentioned the time elapsed between death and post-mortem examination as within 12 to 15 hours. If we reckon with the above said timings, we find that the murder of Abid Pervaiz deceased might have taken place between 10:00 p.m to 1:00 a.m, the previous night, identical is the situation, when we glance at the necropolis report - Exh.PC (pictorial diagrams Exh.PC/1 and Exh.PC/2) qua the dead body of Riasat Ali deceased, which reveals one fire-arm wound with burnt edges, which broke the skull in small pieces in an area of 5 cm., the left occipital side. The bullet was found arrested in the brain matter, below the skull bone. The characteristics of this injury as noted above again suggests that Riasat Ali deceased had been fired at from a very close range. The timings mentioned by the medical officer, PW-5 are equally important for determining the probable time of the occurrence. The doctor has opined that 12. to 15 hours had elapsed between the death of the deceased and the post-mortem examination of dead body of Riasat Ali deceased which was conducted at 1:00 p.m, the same day. It leads us to believe that both the ill-fated persons had been done to death almost at the same time. The deceased might have been rendered helpless before they were fired at and murdered. There is another probability that the deceased had gone asleep close to each other when they were targeted by the assailant and killed at the spot. The medical officer had excised some internal viscerae of both the deceased, which were rendered into sealed parcels and sent to the office of Chemical Examiner, Punjab, Lahore for detection of poison but the report of Chemical Examiner Exh.PDD and Exh.PEE have been received Negative. The medical officer, however, had already bail recorded his findings in the post-mortem examination reports as to the death of the deceased categorically that they had died due to fire-arm 'we injuries, which had damaged their brain matter. The medical evidence fully corroborates the prosecution case.
20. The evidence of extra judicial confession of the accused has been led by Amjad Khan, PW-12, who has stated in his testimony that he was present at his house situated at Mari Morr Attock city at about 7:00 am on 01.01.2008, when Kamran accused visited him and told that he had committed the murder of Abid and Riasat deceased at the intervening night of 19/20-12-2007 and implored him that he should fetch pardon for him from the legal heirs of the deceased and that he should win a compromise for him. According to his deposition, Muhammad Ijaz PW (not produced) also reached there and the appellant-accused also narrated the same facts before him. The appellant left with an assurance from the PWs that they would do bast for winning a compromise for him.
This witness had been working for Malik Amin Aslam for three years and the appellant-accused had also served him for about 6 months. The accused left the job, on his own in the month of October to join Abid Pervaiz deceased as his servant. Amjad Khan PW-12 has deposed about in his testimony that Muhammad Ijaz PW had visited him in connection with getting one Abid employed for a class-4 job in some government department`On) through Courtesy of Malik Amin Aslam and for this purpose he carried a file with him. The line of cross-examination adopted by the defence suggests that an attempt had been made only for clarification of the statement-in-chief of the witness, making the testimony of PW-12 more and more vivid and credible. Malik Muhammad Amin turns out 1cl to be an influential person with whom a number of persons had been associated as his servants. Amjad Khan, PW-12 had been serving him for three years when the appellant approached him for admission of his guilt with a request to seek pardon from the survivors 'of the deceased. The appellant also served Malik Amin Aslam for about six months, so the acquaintance of PW-12 with the accused is hardly questionable. By approaching this witness for pardon and compromise by the appellant, he exhibited his belief and confidence that Amjad Khan PW was the proper man and a resourceful person, who, either on his own or through Malik Amin Aslam, could prevail upon the legal heirs of the deceased and persuade them to grant pardon to the appellant and compound the matter with him. The personal status of this PW becomes irrelevant, when we go through his statement and learn that he had close liaison with Malik Amin Aslam, who was a person of authority as he could fetch a job for one Abid Ali in class-4 grade in some government department. It was why, Muhammad Ijaz had visited Amjad Khan PW with a file in his hand so, the visit of the appellant to Amjad Khan PW-12 is not a surprising factor at all. The statement rendered by Amjad Khan is precise and to the point. He has not uttered even a single word, unnecessary or un-called for. The accused being a private servant was a person of mediocre means and belonged to a low status, speaking socially, so he could at the most prepare himself to seek help from a man before whom he could speak his heart out and entreat him for doing him the good in terms of forgiveness and compromise. The statement of PW-12 runs smoothly leaving behind the impression of creditworthiness and forthrightness.
21. The appellant-accused was arrested on 01.01:2008 by Muhammad Aslam SI/IO (PW-17), who physically searched him and recovered pistol .30 bore from his custody with three live bullets vide recovery memo. Exh.P.1 which was attested by Ghulam Zamir 872/C, PW-10 and Najam Abbas Shah 388/C, PW-9. The pistol P-4 was rendered into a sealed parcel by the I.0., which., on return to the police station, was handed over by the I.0 to Muhammad Rafique MHC, PW-4 for onward transmission to the office of Forensic Science Laboratory, Lahore. The investigation officer during spot inspection on 20.12.2007 had secured three crime empties P-18/1-3 from the place of occurrence and rendered them into a sealed parcel vide memo. Exh.PS, which was attested by Khalid Pervaiz PW-16 and Gharib Nawaz PW (not produced). The sealed parcel of crime empties alongwith other articles was handed order to Muhammad Rafique MHC, PW-4 for onward despatch to the office of Forensic Science Laboratory. The Moharrer/MHC (PW-4) handed over the sealed parcels of the blood stained cotton and that of crime empties to Khan Khawas 708/C, PW-2 for onward transmission to the office of chemical examiner and Forensic Science Laboratory, Lahore, who deposited the same intact with the respective offices on 27.12.2007. The sealed parcel of pistol .30 bore was handed over to Afsar Khan PW-3 for its deposit in the office of Forensic Science Laboratory, who did accordingly without tampering with the same on 04.01.2008. Khan Khawas, PW-2 and Afsar Khan PW-3 have categorically deposed about the receipt of above said sealed parcels from Muhammad Rafique MHC, PW-4 and their deposit in the respective offices intact on 27.12.2007 and 04.01.2008.
The report Exh.PHH released by the office of Forensic Science Laboratory reveals that the crime empties received by the said office had been fired from the pistol 30-bore, got recovered by the appellant-accused. This report is positive and the crime weapon pistol P-4 has been found wedded with the crime empties by the office of Forensic Science Lab. All the relevant witnesses qua the recovery of pistol 30-bore, P-4, and the crime empties P-18/1-3, its placement in Malkhana in safe custody by Muhammad Rafique MHC, PW-4 and the deposit of the sealed parcels intact by PW-2 and PW-3, have made it an important piece of evidence against the appellant-accused.
Khalid Pervaiz PW-16, Muhammad Aslam SI/1.0., PW-17, Ghulam Zamir 872/C, PW-10 and Najam Abbas Shah 388/C, PW-9 have deposed about the recovery of 'the crime empties and that of pistol 30-bore and they have recorded their statements in cohesiveness inter-se thus making it a complete trail, establishing the factum of recovery of the crime weapon P-4 at the instance of the appellant. None of the PWs has been cross-examined with required degree of seriousness and barring a few questions, hither and thither, no serious effort appears to have been made to test the veracity of the statements of the aforesaid witnesses. The recovery of the crime weapon and its matching with the crime empties vide FSL report Exh.PHH is a very important piece of evidence, which goes a long way in determining the guilt of the appellant. The recovery evidence, therefore, is credit worthy.
22.There is another important piece of evidence which relates to three mobile phones P-5/1-3, one wallet P-6, identity card P-7 of deceased Riasat and his service card P-8 at the instance of the appellant-accused vide memo. Exh.PJ, attested by Ghulam Zamir 872/C, PW-10 and Najam Shah 388/C, PW-9. Both the PWs have stated in their testimonies that the appellant-accused while in police custody made disclosure before Muhammad Aslam SI/1.0, PW-17 that he could lead to the recovery of certain belongings of Riasat Ali deceased from his house situated at Dhok Kala Khan Farooq-e-Azam Road, Rawalpindi and pursuant to his disclosure he led the police party to his house and got recovered the above said articles vide memo. Exh.PJ on 03.01.2008. Out of the said articles, two mobile phones, and a wallet were identified by Rafaqat Khan, PW-13 vide identification memo. Exh.PN, duly attested by the said witness, who identified the above said articles as belongings of his deceased brother, Riasat Ali, Najam Shah, PW-9 and Ghulam Zamir PW-10 have categorically stated in their testimonies that the disclosure by the accused was made in their presence before the LO and thereafter he had voluntarily led the police party joined by the said PWs to the recovery of the above said articles. Both the PWs have faced the test of cross- examination un-shakenly and they do not appear to have been jolted in their depositions at all.
The objection of the learned counsel for the appellant that the compliance of Section 103, Cr.P.C. had not been ensured by the I.O so this piece of evidence could not be believed against the appellant, we are afraid, is not tenable as the recovery of the above said articles had been effected at the disclosure of the appellant-accused, therefore, he could not ask for the compliance of the aforesaid provision of the Criminal Procedure Code. The disclosure made by the appellant was voluntary and the subsequent recovery of the above said articles from his residential house is plainly believable as both the witnesses have replied the questions put to them during the cross- examination, in straightforward manner. We do not find any discrepancy in their statements and they appear to have corroborated each other impeccably. This is yet another significant incriminating circumstance and the appellant has been unable to furnish a satisfactory reply as to how and under what circumstances the above said articles fell to his hands. The recovery evidence deposed about by PW-9 and PW-10 duly supported by the statement of Rafaqat Khan PW-13 forms another important loop in the chain, built by the prosecution. The investigation officer had taken the rigours to collect as much incriminating evidence against the appellant-accused as possible.
He took into possession a glass as well which according to the report Exh.PJJ of Finger Print Bureau, bore the finger marks of the appellant on it. The documentary evidence regarding above said glass (not produced during the trial) is also available in report Exh.PJJ, released by the office of Finger Print Bureau but this piece of evidence is not of much importance, firstly, the place of occurrence has not been disputed by the appellant and, secondly, the reports of Chemical Examiner Exh.PKK and Exh.PLL are negative and do not confirm presence of poison in the internal viscerae of both the deceased. Even otherwise the presence of finger prints of the appellant on the said glass is hardly surprising as he worked as a servant for Abid Pervaiz deceased.
23. The circumstantial evidence in this case presented by the prosecution during the trial is of unimpeachable character. The chain required to be assembled by the prosecution on the basis of the circumstantial evidence stands built uninterruptedly, each loop whereof, perfectly fits in the other loop, thus creating a series of links well-imbedded inter-se. In case of circumstantial, evidence the chain so built, by the prosecution on the basis of evidence produced by it during trial, must touch on one end the dead body of the deceased and the other end with the neck of the assailant (s). This is what has exactly happened in the instant case. The prosecution case stands more than proven on the basis of the circumstantial evidence, discussed in detail hereinabove and it can be easily concluded that the prosecution had fully succeeded in establishing the guilt of the appellant-accused beyond reasonable shadows of doubt. The learned trial Court has passed a well-reasoned judgment with correct appreciation of the evidence available on record, therefore, the impugned judgment does not call for any interference by this Court.
24.For what has been discussed above, we uphold the conviction and sentence of the appellant, as recorded by the learned trial Court in the impugned judgment and dismiss Criminal Appeal No. 349 of 2008 filed by the appellant.
25.The death sentence awarded to the appellant by the learned trial Court is confirmed and Murder Reference No-44/RWP of 2008 is answered in the affirmative.
26.For the foregoing reasons, Crl. Revision No. 74 of 2009 filed by Aurangzeb-complainant is also dismissed.