QAZI MUHAMMAD AMIN AHMED, J.---Shahid Ali, appellant herein, is in receipt of a guilty verdict, returned by a learned Addl. Sessions Judge at Attock vide impugned judgment dated 23-5-2014; he stands convicted under Section 302 (b) of the Pakistan Penal Code, 1860 for committing Qatl-i- Amd of Mst. Antar Bibi, 50, hereinafter referred to as the deceased at 11:00 a.m. on 14-9-2013 within the area of Saga abad situating 28-k.m. from Police Station Saddar Attock; he is sentenced to imprisonment for life as Tazir along with compensation of Rs.200,000/- or six months simple imprisonment in the event of default; he is additionally convicted under Section 201 of the Code ibid and sentenced to five years rigorous imprisonment with fine of Rs.10,000/- or to undergo three months simple imprisonment in the event of default; sentences were ordered to run concurrently with benefit of section 382-B of the Code of Criminal Procedure, 1898. Crl. Appeal No.319 of 2014 disputes vires of the conviction.
Prosecution case is structured upon application Ex. PB dated 16-9-2013 presented by Mst. Shahnaz Akhtar (PW-10) before Muhammad Kashif, S.I (PW-15) 7:15 PM at the spot. According to the complainant, a village maid, the deceased, an unmarried woman without means was living in her haveli for preceding three years in a room constructed with peoples' donation. On the eventful day, her son Wajahat Ali (PW-9) informed her that at 2:00 P.M he surprised the appellant while entering the Haveli through scaling over the wall, when he saw him bending over a mess (potli) wrapped in a blue cloth; as the appellant threatened the witness, he left the scene in search of his mother, who upon return, did not find anything missing except the deceased; her search yielded no result. It is alleged that the appellant and his wife visited the complainant more than once to borrow some amount, a request declined by her. A foul smell from the well located in the courtyard attracted the complainant; a mess wrapped in blue cloth was floating the surface when retrieved it contained the dead body of the deceased with mark of violence on the back of head; neck and arms tied with ropes identified by Wajahat Ali (PW-9). The lock of deceased's room was broken; the floor with a plastic sheet was found stained with blood. The appellant was blamed for the crime.
Dr. Iffat Saleem (PW-1) conducted autopsy at 8:30 p.m on 16.09.2013; she noted a ligature mark around the neck accompanied by an oval shaped penetrating wound of 2 x 2 cm on right ear with a bruise 5x5 cm on center of chest; asphyxia and injury on right ear were blamed as cause of death, occurred immediately; probable duration between death and postmortem was estimated as 50 to 70 hours. Muhammad Kashif, SI (PW-15) conducted initial investigation; during spot inspection, besides taking other investigative steps of formal nature, he secured chaddar/Potli (P- 6) and bloodstained piece of shapper (Ex.PD); as the investigation progressed, the complainant through a supplementary statement dated 17-9-2013 mentioned gold ear rings and nasal pin worn by the deceased and laid suspicion about their removal by the appellant; he was arrested on 20- 9-2013, pursuant to a disclosure, led to the recovery of gold earrings (P-7/1-2) and nasal pin (P-8) on 23-9-2013 which he had kept with Mehtab Jeweler Sarafa Bazar Attock secured vide memo Ex.
PL and identified by Abida Bibi (PW-11); a blood-stained club was recovered on 25-9-2013; indicted on 06-11-2013, he claimed trial before a learned Additional Sessions Judge at Attock, pursuant whereto, prosecution produced as many as fifteen witnesses to drive home the charge; as there was no direct evidence, the prosecution relied upon various pieces of circumstantial evidence to prove the charge, confronted by the appellant with a denial who instead blamed the complainant for the crime. Unimpressed by the plea taken, the learned trial Judge proceeded to convict and sentence the appellant vide the impugned judgment as referred to above.
2. Learned counsel for the appellant contends that there is no direct evidence that may possibly frame the appellant with the charge; that recoveries are beside the mark being inexorably dependent upon a supplementary statement, manifestly dishonest. Contrarily, the learned Law Officer has defended the impugned judgment on the ground that it is the quality of evidence that matters and not the quantity; according to him, evidence of Wajahat Ali (PW-9) coupled with recovery of gold ornaments squarely linked the appellant with the crime and with the help of these two pieces of evidence every hypothesis of appellant's innocence stood excluded.
3. Heard. Record perused.
4. As there is no direct evidence, the fate of prosecution case is hinged upon various pieces of circumstantial evidence. According to Wajahat Ali (PW-9) he returned home after attending his school on 14-9-2013 at 2.00 P.M and having found the outer door locked from inside, he scaled over the wall and saw the appellant leaning over a package of blue colour cloth; his case is that he was threatened to leave the spot. The narrative is far from being confidence inspiring, if at all, the appellant was the one who committed the murder to rob the deceased of her gold ornaments and wanted to dispose of her body thereafter he could have conveniently undertook the exercise inside the room where according to the prosecution blood was found subsequently. The statement of this witness merely suggests appellant's presence with a package (potli) and thus by no stretch of imagination it can be positively presumed that it essentially contained the dead body. Another intriguing aspect is absence of blood in the courtyard at the place where the appellant was statedly seen with the bundle. Similarly prosecution is not possessed with any evidence direct or otherwise to establish if the appellant was the one who threw the dead body in the well, if at all, he had committed the murder for nasal pin and earrings, he did not need to undertake such an elaborate exercise. Medical evidence is also not in line with the hypothesis introduced by Wajahat Ali (PW-9). According to the prosecution, the deceased was done to death on 14.09.2013 between 8:00 a.m to 5:00 p.m; the dead body was on the autopsy table at 8:30 p.m. on 16.9.2013, wrapped in a white plastic sack and not a blue cloth; it was in a putrefied state. Going by narrative furnished by Wajahat Ali (PW-9) the inter-se duration between death and autopsy cannot be more than 60 hours taking the prosecution on its outermost side whereas according to Dr.Iffat Saleem (PW-1) the time elapsed ranges between 50-70 hours; she has seemingly relied upon information furnished by the police. According to Parikh's Textbook of Medical Jurisprudence and Toxicology 5th Edition Page, 165 "A body lying completely submerged in water putrefies slowly because of (1) exclusion of air, (2) protection from clothes and (3) the low temperature of water as compared to atmospheric temperature." In this backdrop, findings recorded by the Medical Officer do not much advance the prosecution case being inconsistent with medical jurisprudence. The next piece of evidence is recovery of gold nasal pin (P-8) and pair of earrings (P-7); these two articles were introduced through a supplementary statement purportedly recorded on 17.09.2013. It is complainant's case that she broke through the deceased's room after discovery of dead body and had also searched all her household items on the day one, thus, her omission to mention these ornaments is mind boggling. Supplementary statement is essentially a statement recorded under Section 161 of the Code of Criminal Procedure, 1898 and cannot be equated with First Information Report nor can be read in extension thereof. Argument that fake recovery was managed through a belatedly recorded supplementary statement is seemingly not entirely beside the mark. Even otherwise, presence of gold ornaments with the deceased, a woman without means, in her mid 50s dependent upon financial support is a position far from being plausible. Evidence of Zahoor Elahi (PW-13), a jeweler in the city produced by the prosecution to establish that the appellant had kept the gold ornaments with him, in itself, cannot prove the charge of homicide as the initial introduction of these articles is not free from doubt rather adversely impact upon the prosecution case for the reason that recovery relied upon by the prosecution does not fall within the purview of Article 40 of the Qanun-e-Shahadat Order, 1984 as these articles were produced by Zahoor Elahi (PW-13) and not by the appellant himself nor secured pursuant to any disclosure attributed to him and this is confirmed by no other than Mst. Abida Bibi PW-11 who while identifying the gold ornaments stated that these were recovered from a jeweler on 23-9-2013. In order to bring an accused in custody out of immunity provided to him under Article 39 of the Order ibid, there must be a direct nexus between the information and fact distinctly discovered in pursuance thereto; discontinuity between the two and intervention by an intermediary heavily militates against the very spirit of Article 40 of the Order ibid which read with Article 39 places an absolute bar on use of information to the detriment of an accused, purportedly received from him while being in custody.
It is by now well settled that in order to sustain the charge circumstantial evidence can be relied upon only when various links constitute a chain of circumstances to create a nexus between the crime and the culprit, leaving no space to entertain any hypothesis of innocence. It is not a case in hand and thus it would be grievously unsafe to maintain the conviction. Consequently by extending benefit of doubt to the appellant, Crl. Appeal No.319 of 2014 is allowed; impugned judgment dated 23-05-2014 is set aside; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case.