Sadiq Mahmud Khurram, J. Allah Yar, appellant, was tried by the learned Addl. Sessions Judge, Hasilpur , in case FIR No. 84 of 2010 dated 12.03.2010 registered at Police Station Qaimpur , District Bahawalpur , in respect of offences under . Sections 302, 365, PPC, for committing Qatl-e-Amd of the complainant's brother namely Liaqat Ali (deceased). The learned trial Court judgment dated 30.01.2015 convicted Allah Yar, appellant and sentenced him as infra: Allah Yar son of Sardar Muhammad.
(i) Death under Section. 302(b), PPC as Tazir for Committing Qatl-e-Amd of Liaqat Ali (deceased), and pay Rs.1 Lac as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof, to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
(ii) Rigorous imprisonment for seven years under Section 365, PPC and to pay fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for a period of two months.
2. Feeling aggrieved, Allah Yar (convict) lodged Criminal appeal No. 65-J of 2015 against his conviction and sentence. The learned trial Court submitted Murder Reference No. 05 of 2015 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Allah Yar. We intend to dispose of Criminal appeal No. 65-J of 2015 and Murder Reference No. 05 of 2015 through this singe judgment.
3. As per the facts of the prosecution case a dead body was found on 04.03.2010 of an anonymous person whose legal heirs could not be traced and a report under Section 174 Code of Criminal Procedure was prepared and a rapt No. 10 dated 04.03.2010 (Exh.P .G) was registered at police station Inayati, Thereafter on 12.03.2010 Rustam Khan (PW.1) presented a written application (Exh.P .A.) at police station Qaimpur for registration of a case with respect to abduction of his brother Liaqat Ali deceased by two unknown persons whereupon the instant case FIR No. 84 of 2010 (Exh.P .A/3) dated 12.03.2010 was registered at Police Station Qaimpur , District Bahawalpur , in respect of offence under Section 365, PPC. Then on 28.03.2010 Rustam Khan (PW-1) got recorded a statement to the police that his brother Liaqat Ali has been murdered by Allah Yar, appellant and one Muhammad Imran (Proclaimed offender). During the investigation of the case by Ghulam Abbas SI (PW-16), Allah Yar (appellant) was arrested on 04.05.2010 and on 20.05.2010 a test identification parade was conducted wherein Allah Yar (appellant) was duly identified by the witnesses and thereafter the investigation continued and after the completion of the investigation a report under Section 173, Cr .P.C. was submitted.
4. The learned trial Court framed charge against the appellant on 12.01.201 1 to which he pleaded not guilty and the learned trial Court proceeded to examine the prosecution witnesses.
5. The prosecution in order to prove its case got recorded statements of as many as seventeen witnesses. Rustam Khan (PW-1) stated before the Court that his brother was abducted on 26.02.2010 and he had suspicion of murder upon Allah Yar appellant and Muhammad Imran (Proclaimed offender). He further submitted that on 20.5.2010 he identified Allah Yar during the Identificati on Parade. He further submitted that on 08.06.2010 Allah Yar appellant pointed out the place of burial and on 10.06.2010 got recovered a motor cycle (P-1) which was taken into possession .through recovery memo (Exh.P .C.) and on the same day Allah Yar (appellant) also got recovered Churri (P-2), mobile Phone (P-3), copy of CNIC of Liaqat Ali deceased (P-4), Photo of Liaqat Ali deceased (P-5), two broken needles of sewing machine (P-6/1-2) which were taken into possession through' recovery memo (Exh.P .D.). Abdul Ghafoor (PW-2) stated that on 26.02.2.010, he had travelled on the motorcycle of the deceased alongwith an unknown passenger and later on 20.05.2010 he identified Allah Yar appellant during the identification parade and also on 10.06.2010 witnesse d the recovery of motorcycle (P-1) and other articles, mentioned above, taken into possession through recovery memo (Ex.P .D.) Muhammad Shaban (PW-3) stated that on 26.02.2010 he saw the deceased Liaqat Ali with two unknown persons. Muhammad Sharif (PW-4) stated that he searched for Liaqat Ali alongwith Rustam Khan (PW-1) and that he was satisfied that Allah Yar appellant is real accused.
Muhammad Ijaz (PW-5) stated that on 26.02.2010 he saw the deceased alongwith Abdul Ghafoor (PW-2) and another unknown person and that on 20.5.2010 he identified Allah Yar appellant during the test identification parade. Muhammad Haji (PW-6) stated that on 08.06.2010 he witnessed the pointation of place of occurrence by Allah Yar appellant. Zulfiqar Ali 925/C (PW-7) stated that on 15.09.2010 he took a sealed parcel to the office of Chemical Examiner . Muhammad Shakee l 1505/C (PW-8) stated that on 05.04.2010 he took a sealed envelope to DNA laboratory Punjab. Ali Akbar ASI (PW-9) stated that on 04.03.2010 he received three sealed parcels from Saeed Ahmad (PW-15). Rub Nawaz/HC (PW-10), Abdul Ghaf far 1410/C (PW-11), Muhammad Latif (PW-12) and Falak Sher (PW-13), all stated that a dead body of anonymous person was recovered on 04.03.2010 in their presence. Muhammad Akhtar , Special Magistrate, conducted the identification parade of Allah Yar appellant on 20.05.2010. Ghulam Abbas SI (PW-16) investigated the case from 12.3.2010 till 31.8.2010 and detailed the facts of the investigation before the learned trial Court.
6. The prosecution also got examined Doctor Zafar Iqbal (PW. 14), who was posted at THQ, Hospital Khairpur Tamewala as M.O on 04.03.2010. On the said date Doctor Zafar Iqbal (PW-14) conducted the postmortem examination of an unknown male and issued the 'postmortem report (Exh.PE/1-4). He observed as under: "EXTERNAL EXAMINA TION.
"A dead body of middle aged person lying supine position on the mortuary table not wearing dress. Foul smelling stained with mud, maggots were present. Rigor mortis disappeared. Eye balls dissolved and soft tissue of the face totally engulfed, throat was cut and multiple, cut marks on the neck were present. Both mandibles were broken, cut was involving, skin soft tissue and vertebral column, a cut mark on the left wrist involving skin subcutaneous tissues and muscle. Ante postmortem x-rays No. 86,87,88 dated 4.3.2010 showing fracture of mandible bone.
CRANIUM AND SPINAL CORD Spinal V ertebrae was fractured. Spinal cord cut at the level of cervical region.
REMARKS OF MEDICAL OFFICER After through internal and external examination, I was of the opinion that injuries No. I & 2 are looking to be ante mortem. These injuries case severe hemorrhage leading to hypo-volumic shock, multi organs failure and death.
However , his viscera were taken and sent to Chemical Examiner and Histopethologist and final result would be given after receipt of result of the above said offices. His hairs were taken and sent to 'the Director of Molecular science for DNA typing. Probable time between injury and death sudden & the lime between death and post mortem was within about one month."
7. On 10.05.2014, the learned DDPP gave up PWs Mian Azhar Hussain being unnecessary and Muhammad Nasir (Parwari) being dead. On 26.11.2014, the learned DDPP closed the prosecution evidence after tendering the report of Chemical Examiner regarding Churri (Exh.PP .), report Serologist regarding Chur ri (Exh.P .Q.), report of Chemical examiner of V iscera (Exh.P .R.), and report of Histopatholgist (Bxh.P .S.)
8. After the closure of prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C. wherein he claimed that he had been falsely involved in the case. The appe llant neither opted to get himself examined under Section 340(2), Cr .P.C. nor he adduced any evidence in defence.
9. On the conclusion of the trial, the learned Addl. Sessions Judge, Hasilpur , convicted and sentenced the appellant as referred to above.
10. The contention 'of the learned counsel for the appellant precisely is that whole case is fabricated and false.
That the prosecution remained unable to prove the facts and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel further contended that the statements of prosecution witnesses are unworthy of any reliance as being bereft of proof. Learned counsel also contended that prosecution witnesses examined by prosecution were related to the deceased and interested. Learned counsel also argued that the recoveries were result of fake proceedings. Learned counsel finally submitted that the prosecution has remained totally unsuccessful to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant further argued that the deceased died as a result of injuries suffered at the hand of the appellant. They further argued that the recovery of motorcycle (P1) and Churri (Exh.P2) from the appellant also corroborated the prosecution evidence. They contended that the appellant could not establish any enmity with the prosecution witnesses and there was no occasion for the prosecution, witnesses to substitute the real offender with the innocent in this case. Lastly , learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General along with the learned counsel appearing on behalf of complainant and with their assistance,' have perused the record and evidence recorded during the trial, carefully .
13. We have observed that there was no eye-witness of the occurrence itself. Rustam Khan (PW.1) presented a written application (Fx.P .A.) on 12.03.2010 at police station Qaimpur for registration of a case with respect to abduction of his brother Liaqat Ali (deceased) by two unknown persons whereupon the instant case FIR No. 84 of 2010 (Ex.P . A/3) dated 12.3.2010 was registered at Police Station Qaimpur , District Bahawalpur , in respect of offence under Section 365, PPC. Then on 28.03.2010 Rustam Khan (PW-1) got recorded a statement to the police that his brother Liaqat Ali has been murdered by Allah Yar appellant and one Muhammad Imran (Proclaimed offender). Rustam Khan (PW-1) stated before the learned trial Court that his brother was abducted on' 26.02.2010 and he had suspicion of murder upon Allah Yar appellant and Muhammad Imran (Proclaimed offender). Except for suspicion, Rustam Khan (PW-1) did not depose to any evidence with respect to Allah Yar, appellant as being the one who had either abducted his brother or had murdered him. It is not the case of Rustam Khan. (PW-1) that his brother Liaqat Ali went on the motorcycle in his presence. Rustam Khan (PW-1) though participated in the identification parade proceedings, however , the same has no value for the simple reason that he had not witnessed Liaqat Ali deceased either accompanying the Allah Yar, appellant or for that matter had met him on 26.02.2010.
This witness further stated that he came to a "conclusion" that the unknown persons, who had abducted his brother , were Allah Yar, appellant and Muhammad Imran (proclaimed offender). He failed to reveal any source of his information His statement to the effect that he along with witnesses came to the conclusion that it was indeed Allah Yar appellant who had abducted his brother has no legal value. He also failed to offer any explanation for not reporting the matter of missing of his brother since 26.02.2010 till 12.03.2010 i.e 14 days to police. A perusal of his application for registration of FIR. (Exh.P A) refers to the fact that he had been searching for his brother since 26.02.2010 but does not reveal as to why he did not report the matter to the police. While appearing as a witness before the learned trial Court, Rustam Khan (PW-1) remained mum with respect to explanation of not reporting the matter of missing of his brother to the police. This witness continued to say that on 28.03.2010 he got recorded his supplementary statement wherein he formally named Allah Yar appellant as an accused in the case and not only named him but also mentioned all his particulars while getting recorded the said statement to the Investigating Officer, Ghulam Abbas, SI ( PW-16). Ghulam Abbas (PW-16) also reiterated this fact that on 28.03.2010 the complainant and the PWs nominated Allah Yar appellant as an accused in the case. When every detail regarding the particulars of Allah Yar, appellant was mentioned by Rustam Khan (PW-1) and other witnesses, then the holding of test, identification parade even otherwise was an exercise in futility . The question begs an answer that when the prosecution witnesses already knew about the details and particulars of the accused then for what purpose the test identification parade was held. Similarly , Muhammad Sharif, (PW-4) uncle of the complainant, Rustam Khan (PW-1) appeared before the learned trial Court and made the same statement as made by Rustam Khan (PW-1). His statement is also inherently Flawed and has the same errors as mentioned above which preclude us from placing any reliance upon his statement. We have come to this irresistible conclusion that both these witnesses have made false statements.
14. We have carefully perused the statement of Abdul Ghafoor (PW-2). This witness claimed that on 26.02.2010 he had accompanied the deceased and another unknown person on the motorcycle of the deceased. He stated that after dropping him near the poultry form of Syed Sardar Hussain Gillani, the deceased left with two unknown persons. This witness again never ever reported the matter of his travelling with the deceased in company of unknown persons to anyone so much so that when Rustam Khan (PW-1) got lodged the written complaint (Exh.P A) on 12.03.2010 i.e after fourteen days of the occurrence, still even then, this witness was not cited in the said written complaint Exh.P A. Abdul Ghafoor (PW-2) was not a stranger to Rustam Khan (PW-1) and admitted that he was indeed his friend. During cross-examination he admitted that he had told this fact to Rustam Khan, (PW-1), that on 26.02.2010 he had accompanied the deceased and another unknown person on the motorcycle of the deceased.
So if he had already told Rustam Khan (PW-1), then it is all the more strange that why he waited till 28.03.2010 to nominate the present appellant as an accused. This witness also admitted to the fact that he had given all the particulars of Allah Yar appellant to the Investigating Officer on 28.03.2010, hence, his participation in the identification parade proceedings, after nominating the accused person is of no consequence.
15. Learned Deputy Prosecutor General along with the learned counsel for the complainant have laid much stress upon the evidence of Muhammad Shab an (PW-3). We have carefully examine d the statement of Muhammad Shaban (PW-3) made before the learned trial Court. In his examination in chief this witness has not supported the fact that he ever look part in any identification parade held so as to establish the identity of Allah Yar, appellant.
When this witness has failed to support the contents of the test identification parade proceedings and himself negated the holding of the same then no reliance can be placed on his statement. He has neither given any date nor time of holding of such a test identification parade while appearing as a witness before the learned trial Court.
This witness again has also failed to mention as to why he did not report the matter of seeing the deceased for fourteen days. This delay in recording the statements under Section 161 Cr.P.C is revealing of the fact that said witnesses were not truthful witness. The august Supreme Court of Pakistan in the case of Abdul Khaliq vs. The State (1996 SCMR 1553 ) has held as under: "It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its 'value to nill unless there is plausible explanation for such delay "
The august Supreme Court of Pakistan in the case of Muhammad Khan vs. Mazda Bakhsh (1993 SCMR 570) has held as under: It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.0 is recorded with delay without offering any plausible explanation".
The august Supreme Court of Pakistan in the ease of Syed Saeed Muhammad Shah and another vs. The State (1993 SCMR 550 ) at page 571 has held as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with, no explanation'.
16. We have carefully examined the statement of Muhammad Ijaz (PW-5) who stated that he had also seen the deceased in company of an unknown persons and Abdul Ghafoor (PW-2). We have gone through the statement of Abdul Ghafoor (PW -2) who has stated as under:- "I also mentioned about my travelling to Muhammad Ijaz"
This portion of examination in chief of Abdul Ghafoor (PW-2) clearly establishes that Muhammad Ijaz (PW-5) had never seen him travelling with Liaqat Ali deceased rather he was told of this fact by Abdul Ghafoor (PW-2). This lays bare the hollowness of the claim of Muhammad Ijaz (PW-5) to have ever seen the deceased in the company of Allah Yar, appellant.
17. In view of the above we are of the considered opinion that had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the learned trial Court, then these contradictions would not have cropped up in their testimony . These self-negating and contradictory statements of the witnesses reflect that the witnesses are not truthful and they are supporting the afterthought, fabricated and concocted story meant to create incriminating evidence to strengthen the case of unwitnessed occurrence against the appellant.
The august Supreme Court of Pakistan in the case of Imran alias Dully and another vs. the State and others (2015 SCMR 155 ) at page 164 has held as under:-- By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge.
To carry a conviction on a capital charge it is essential that the Courts should deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon and very minute and narrow examination of the same is necessary to secure the ends of justice. It is imperative for the prosecution to provide all links in chain, where one end of the same touches the dead body and the other , neck of the accused. The present case is of such a nature that many links are missing in the chain. It would not be wrong to observe that in this particular case, it can be said that there is no link, what to talk about a chain. The august Supreme Court of Pakistan in the case of Fiaz Ahmad vs. The State (2017 SCMR 2026 ) has observed at page 2030 as under:-- "It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however , if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that cage Courts have to discard and disbelieve the same. "
18. We have also observed that Dr. Zafar Iqbal (PW-14) has given the probable duration of time between death and post mortem as about one month. It is the case of the prosecution that the occur rence took place on 26.02.2010 whereas the dead body of the deceased was recovered on 04.03.2010 and it does not commensurate with the time given by the witnesses of the alleged occurrence. As per the medical evidence available in the case probable duration of time between death and post mortem was about one month whereas the claim of the prosecution witnesses is that the occurrence had taken place six days prior to the conducting of postmortem. Another aspect of this case which has persuaded us to reject the case of prosecution as against the accused, is the fact that none of the witnesses while during the investigation of the case of while appearing before the learned trial Court ever tried to establish the identity of dead body . Dr. Zafar Iqbal (PW-14) had sought a report from the Director of Molecular Science for DNA typing so as to establish the identity of the unknown male whose postmortem was conducted by him. However , the said report was never produced before the learned trial Court. The failure of the prosecution to produce the said report has the effect that the identity of the deceased cannot be established beyond the shadow of doubt and that indeed it was the dead body of Liaqat Ali, brother of the complainant Rustam Khan (PW-1), which was found on 04.03.2010. Article 129 of the Qanun-e-Shahadat Order , 1984 allows the Courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus presume the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that the report from the Director of Molecular Science for DNA typing, which could be and was not produced would, if produced, would have been unfavourable to the prosecution who withheld it.
19. Learned Deputy Prosecutor General along with learned counsel for the complainant nave also relied upon the recovery of motor cycle (P-1) which was taken into possession through recovery memo (Ex.P .C.) and the recovery of Churri (Exh.P-2), mobile Phone (Exh.P -3), copy of CNIC of Liaqat Ali deceased (Exh.P-4), Photo of Liaqat Ali deceased (Exh.P-5), two broken needles of, sewing machine (Exh. P-6/1-2) which were taken into possession through recovery memo (Ex.P .D.). Ghulam Abbas SI (PW-16), the Investigating Officer of the case, did not join any witness of the locality during the recovery of said articles which was in clear violation of Section 103 Cr.P.C and cannot be used as incriminating evidence against Allah Yar (appellant), being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. The State ( 2017 SCMR 898 ) at page 901 has held as under:-- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr .P.C. had flagrantly been violated in that regard. "
Even .otherwise while submitting the written complaint (Exh.P A) Rustam Khan (PW-1) had not mentioned that the deceased was carrying any mobile Phone (Exh.P-3), copy of CNIC (Exh.P-4), Photo (Exh.P-5) or two broken needles of sewing machine (Exh.P-6/1-2). Hence, these recoveries do not offer--any corroboration to the case of prosecution.
20. The prosecution has also relied upon the evidence of pointing out the place of burial by Allah Yar, appellant and the memo of identification of the said spot (Exh.PB) The appellant's pointing out of the place of occurrence in police custody and preparation of a memo in support thereof cannot be admitted in evidence for the reason that the said place was already within the knowledge of the prosecution since 04.03.2010. As per Article 39 of Qanun-e- Shahadat Order , 1984 as nothing new was discovered as a result of said disclosure by the appellant in police custody , hence, the said statement canno t be considered as incriminating evidenc e against the appellant. A piece of circumstantial evidence must come from an impeachable source with such a quality that it must exclude every hypothesis of innocence.
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of.
Allah Yar, appellant, in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The August Supreme Court of Pakistan in the case of Muhammad Mansha vs. The State ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reaso nable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. "
Reliance is also placed on the judgment of the August Supreme Court of Pakistan Muhammad Akram vs. the State (2009 SCMR 230 ) in which it has been observed in paragraph No. 13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstances which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. "
22. For what has been discussed above, Criminal Appeal No. 65-J of 2015 filed by Allah Yar, appellant is accepted, the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment are hereby set-aside. Allah Yar, appellant is ordered to be acquitted. He is directed to be released forthwith if not required in any other case.
23. Murder Reference is answered in Negative and death sentence of Allah Yar, appellant is Not Confirmed.