MUHAMMAD WHAEED KHAN, J.- Through this appeal, the appellants Raheel Anwar s/o Muhammad Anwar and Faheem Aslam s/o Muhammad Aslam have challenged their conviction and sentences passed by learned Additional Sessions Judge, Sialkot vide judgment dated 25.06.2014 in case FIR No.156/2009 dated 21.04.2009, registered under Sections 302/392/34 PPC at Police Station Kotwali, Sialkot, whereby they were convicted and sentenced as under: Under section 302(B) PPC awarded life imprisonment each. They were also ordered to pay Rs.50,000/- each as compensation to the legal heirs of deceased u/s 544-A Cr.P.C.
Under section 392 PPC awarded seven years rigorous imprisonment with fine of Rs.10,000/- each. In case of non-payment of fine, they were ordered to further undergo four months simple imprisonment each.
All sentences awarded to the convicts were ordered to be run concurrently and benefit u/s 382-B Cr.P.C. was also extended to them.
2. Feeling aggrieved by the judgment passed by the learned trial Court, appellants assailed their conviction and sentences by filing instant appeal from jail.
3. Prosecution story as narrated by the complainant Syed Ishaq Shah in Ex-PN/1 is as under;- "That he is resident of Chak Pada Tehsil Sambrial. His elder daughter Shabnam Gillani was residing in Bansan wala Bazar , Adda Shehbaz Khan. Since 18.04.2009 at 10:00 p.m., he had no link with his daughter . Even telephone could not be connected. On 21.04.2009 at about 11:30 a.m. the complainant visited the house of Shabnam Gillani. The main gate was locked. He obtained keys from the neighbor Farhat Bibi and opened the gate.
The dead body of Shabnam Gillani was lying in her house. Her hands and feet were tied and a piece of cloth was stuffed in her mouth. She was killed by some unknown accused.
4. After registration of case, on 22.04.2009 the complainant through anoth er application, nominated one Muhammad Adeel (since P.O) alongwith present appellants Raheel Anwar and Fahim Aslam as accused. Police investigated the matter and found the appellants guilty and by placing their names alongwith Muhammad Adeel (since P.O.) in column No.3 of the repor t u/s 173 Cr.P.C., submitted the same before the learned trial Court for commencement of trial. Thereafter , formal charge against the appellants was framed, to which they pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case produced oral evidence from PW-1 to PW-10 alongwith certain documents to bring home the guilt of the appellants. Nasir Khan SI scribe of FIR appeared as PW-1, Dr. Qudsia Bano WMO, who conducted the postmortem examination on the dead body of Shabnam Gillani deceased appeared as PW-2, Muhammad Shahzad witness of recovery appeared as PW-3, Manzoor Ahmad 1892/C another witness of recovery appeared as PW-4, Mirza Tahir Tasleem Draftsman appeared as PW-5, Zulfiqar Ali 724/HC witness of identification memo appeared as PW-6, Muhammad Ishaq Shah complainant/father of the deceased appeared as PW-7, Lubna Gillani sister of the deceased Shabnam Gillani appeared as PW-8, Tabasam Gillani also the sister of the deceased appeared as PW-9 and Muhammad Khan SI/Investigating Officer of the case appeared as PW -10. Prosecution after producing certain documents, closed its evidence.
6. After completion of prosecution evidence, statement of appellants were recorded u/s 342 Cr.P.C., who opted not to appear as witnesses u/s 340 (2) Cr.P.C., however , while answering question (Why this case against you and why the PWs deposed against you?) , they replied in same voice that PWs are interested and inimical and they were involved by the PWs in this case on the basis of suspicion in a blind and unseen murder . They further replied that in fact complainant party had grudge against their co-accused (since P.O), who was their relative and who used to criticize the immoral activities of the deceased and complainant party and in fact the deceased was a lady of dissolute character having illicit relations with so many debauched persons who used to visit her house off and on and she was murdered at the hands of some unknown paramours.
7. After evaluating prosecution evidence available on record, learned trial Court found the appellants guilty for commission of alleged crime, as a result thereof, they were convicted and sentenced in the afore-stated terms.
8. Learned counsel for the appellants submits that it is a case of no evidence, as no witness of ocular account is available with the prosecution, who could involve the appellants in the commission of alleged offence, rather it is a case of circumstantial evidence and prosecution has missed many links and has withheld the necessary evidence.
Submits that all the three prosecution witnesses i.e. Muhammad Ishaq Shah complainant PW-7/father of the deceased, Lubna Gillani PW-8, Tabasam Gillani PW-9 both sisters of the decease d, only found the dead body of the deceased Shabnam Gillani inside her house and both the appellants were convicted and sentenced on the basis of recovery , which has been manipulated by the Investigating Officer by joining hands with the complainant party . Finally prayed that by accepting this appeal, appellants be acquitted of the charge.
9. On the other hand, District Public Prosecutor strongly controverted the arguments advanced by the learned counsel for the appellants and submits that the prosecution has successfully proved its case against the appellants by producing trustworthy and reliable evidence in shape of ocular account and especially the recoveries allegedly affected from the possession of both the appellants. Submits that there is no reason at all why the prosecution witnesses involved the present appellants by letting off the real culprits, hence, instant appeal may kindly be dismissed by maintaining the conviction and sentenced awarded by the learned trial Court.
10. I have heard arguments and perused the record with the assistance of learned counsel for the parties.
11. As per prosecution story , deceased Shabnam Gillani daughter of the complaina nt was found dead in her house and a piece of cloth was stuffed in her mouth by tying her hands and feet. FIR was lodged by the complainant against unknown culprits. Thereafter, on 22.04.2009, complainant through another application nominated co- accused Muhammad Adeel (since P.O) alongwith present appellants Raheel Anwar and Fahim Aslam, alleging therein that co-accused Muhammad Adeel was employed by the deceased as her driver, whereas present appellants were friends of said Adeel. Both the appellants visited the house of deceased and prior to the incident, complainant met them twice. Complainant also disclosed that gold ornaments, mobile phones, cash, car No.8082/LEC, washing machine and telescope were missing from the house of the deceased. Thereafter, both the appellants along with their co-accused Adeel (since P.O) were arrested by the police on 08.05.2009 and stolen car was got recovered by them jointly from Doburji Maliyan and same was taken into possession vide recovery memo Ex-PC. They also got recovered motorcycle/P2, which was used by them during occurrence. On 14.05.2009, appellant Raheel Anwar allegedly got recovered five bangles P8/1-5, mobile phone Nokia N-73/P9, Mala/P10 and one ATM card/P11, which were taken into possession by the Investigating Officer vide recovery memo Ex-PG. Site plan of the said place was also prepared. Appellant Fahim Aslam also got recovered one ring/P12, Motorola mobile set/P13 and another Motorola mobile set/P14 through recovery memo Ex-PH and site plan was also prepared. The main accused Muhammad Adeel also got recovered gold ornament/P5, mobile phone/P6 and telescope/P7 vide recovery memo Ex-PF. Both the appellants also got recovered cash Rs.3000/- & Rs.2000/- through their relatives, which were secured through different memos by the Investigating Officer.
The articles allegedly recovered from the appellants were identified by the complainant and as per identification memo said articles were belonged to her deceased daughter .
12. Prosecution produced three witnesses, namely, Muhammad Ishaq Shah complainant PW-7/father of the deceased, Lubna Gillani PW-8 and Tabasam Gillani PW-9 both sisters of the deceased. All of them narrated that on 21.04.2009 at about 11.30 a.m. they came at the residence of deceased, her house was locked, they got the keys of her house from her neighbour Mst. Farhat Bibi to unlock her house. When they entered into the house, they saw that both the hands and feet of deceased were tied and a cloth was put in her mouth and she was murdered. Thereafter, case was registered against unknown accused persons. On 22.04.2009 through another application, complainant PW-7 involved the present appellants alongwith their co-accused Muhammad Adeel (since P.O) in the alleged incident. Evidence recorded by all the three witnesses before the leaned trial Court shows that there was no direct evidence available with the prosecution regarding the alleged incident and PW- 7/complainant Muhammad Ishaq Shah is just an informer of the alleged incident whose statement set the machinery of law into motion and nothing beyond that, and the same is the position of her two daughters who appeared as PW 8 and PW-9. So, the evidence of all the three witnesses hardly advanced any purpose for the prosecution. According to the complainant PW-7/father of the deceased, Lubna Gillani and Tabasum Gillani PW-8 and PW-9/both sisters of the deceased, they collected keys from neighbour Mst. Farhat Bibi and unlocked the house of the deceased but said Mst. Farhat Bibi was neither associated in the investigation nor she made any statement before the Investigating Officer or before the learned trial Court. Since she was the most important witness of the incident, at least to tell the circumstances that who left the keys of the house with her and who visited the house of deceased prior to the alleged occurrence, her statement should have been recorded by the Investigating Officer. So, according to my view, Mst. Farhat Bibi was the most important witness of the present case but she remained out of scene as mentioned above and this is a serious lapse on part of the investigating agency. In the circumstances, an adverse inference as required under Illustration (g) of Article 129 of Qanun-e- Shahadat Order, 1984 can fairly be drawn that had the witness been examined, his evidence would have been unfavourable to the prosecution. As according to the principle laid down in Article 129 of Qanun-e Shahadat Order, 1984 under Illustration (g), the Court may presume the existence of any fact that evidence which could be and is not produced would, if produced, be unfavourable to the person who withheld it. So, in my view, prosecution has withheld best evidence by not producing the above said Mst. Farhat Bibi. Reliance is placed "Muhammad Rafique and others vs. The State others" (2010 SCMR 385), wherein it is held that if any party withholds the best piece of evidence, then it can fairly be presumed that party has some sinister motive behind it. In cross examination the complainant admitted that the house in which the occurrence took place was owned by Khalid Amin husband of the deceased. Prior to marriage with Khalid Amin, his deceased daughter Shabnam Gillani was married with Khawar Gillani and she was divorced by him. He also admitted this fact that her previous husband was the real brother of Khalid Amin but said Khalid Amin was never associated in the investigation.
13. Another important aspect of the case is that PW-10 Muhammad Khan SI/Investigating Officer of the case admitted that in the scaled site plan, which was allegedly prepared on 26.04.2009, names of accused persons were not mentioned. Anyhow, he denied the suggestion that the names of accused persons were not mentioned in the scaled site plan Ex-PM because supplementary statement of the complainant was fabricated after causing arrest of accused persons on 26.04.2009. This clearly shows that the supplementary statement of the complainant was not recorded on 22.04.2009, as alleged by the prosecution rather the accused persons were arrested by the police first and then the supplementary application of the complainant was fabricated after their arrest.
14. As far as, recoveries allegedly affected from the appellants are concerned, the car allegedly stolen from the house of the deceased and motor cycle allegedly used in the crime were recovered on joint disclosure of all the three accused persons. The law is settled by know that joint recovery is not admissible in evidence, so, I hereby discard the above said recovery of car and motor cycle. As far as, recovery of stolen articles (details of which has already been given in paragraph No.11 supra) allegedly affected from the possession of present appellants is concerned, one of the recovery witnesses Manzoor Ahmad while appearing before the learned trial Court as PW-4, admitted during course of cross examination that recovery proceedings were conducted by the Investigating Officer while sitting in the Police Station. He went on to say that he did not remember even the date of recovery proceedings. He also admitted that currency notes allegedly recovered from the appellants were procured through their father. Under these circumstances, recovery of stolen articles allegedly affected from the appellants is of no consequence, it does not meet the requirements of law, hence, it is also discarded. Even otherwise, the conviction cannot be based solely on the ground of recovery as there is no direct or other circumstantial evidence available in the case.
15. As far as, identification of stolen articles, allegedly identified by the complainant through recovery memo is concerned, this story is also unbelievabl e, as it was basically womenfolk of the house, who can recognize the things allegedly belonged to the decease d and it was not the job of the complaina nt, who otherwise, while making statement has never stated in the supplementary statement that he can recognize the gold ornaments and other stolen things.
16. Finally, I would like to discuss the medical evidence brought on record by the prosecution in shape of statement of Dr. Qudsia Bano PW-2, who conducted postmortem examination on the dead body of the deceased Shabnam Gillani. In her statement, PW-2 deposed that on 21.04.2009 at about 9:00 p.m., she examined the dead body and found reddish wide mark of strangulation around whole neck. Both hands and legs were cuffed by multicoloured cloth. She dissected neck layer by layer and reached up to hyoid bone which was found fractured from center. In her view, all the injuries were ante mortem. Injury No.1 was caused by strangulation leading to asphyxia, shock, coma and finally cardiopulmonary arrest. In her opinion, cause of death was injury No.1 leading to death in ordinary course of nature. Probable time between injury and death was instantaneous and between death and postmortem approximately three days.
17. Needless to say that the medical evidence confirmes the ocular evidence with regard the seat of injuries, its duration, nature of injures and kind of weapon used for causing of such injuries but it cannot connect the appellants with the commission of crime, until and unless there is some other evidence available with the prosecution, which could connect the appellants with the commission of alleged crime, therefore, in these circumstances, when other evidence is not considered reliable, this piece of evidence is of no avail to the prosecution. Guideline in this regard can be taken from the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case reported as "Ghulam Mustafa and another vs. The State, etc." (2009 SCMR 916), wherein it has been observed that postm ortem report can never be a primary source of evidence for the crime itself but is only a supportive evidence.
18. As discussed above, there is no direct evidence available against the appellants and prosecution case hinges upon the circumstantial evidence and in such case, strong evidence is required to connect the accused with the commission of crime. In the instant case, any piece of evidence discussed above, neither individually nor collectively is compatible with the guilt of the appellants and it would not, thus, be safe to maintain the finding of conviction on the evidence relied upon by the prosecution. Reliance is placed on the judgment passed by august Supreme Court of Pakistan in case of "Jaffar Ali v. The State" (1998 SCMR 2669 ). In the case of circumstantial evidence, it is settled principle of law that the prosecution has to prove complete chain of circumstantial evidence.
And if one ring (ingredient) of chain is missing then whole evidence would be discarded and prosecution case would fall on ground.
19. From the facts and circumstances narrated above, I am persuaded to hold that there are major discrepancies in the prosecution evidence, creating serious dents in its authenticity and in such like situation, it becomes incumbent upon the Court to extend the benefit of doubt in favour of the accused. Resultantly , this appeal is allowed and the conviction and sentences awarded to the appellants by the learned trial Court vide judgment dated 25.06.2014 are set aside. Appellants are acquitted of the charge in case FIR No.156/2009 dated 21.04.2009, registered under Section 302/392/34 PPC at Police Statio n Kotwali, Sialkot and they are directed to be released forthwith, if not required to be detained in any other case.