Sardar Ahmed Naeem, J.--This judgment shall dispose of Criminal,A ppeal No. 552-J of 2017 titled as Muhammad Ashiq, etc v. The State filed by Muhamma d Ashiq and Mst. Naseem Bibi (appellants) against their convictions and sentences and Murder Reference No. 51 of 2017 titled as The State v. Muhammad Ashiq transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, being originated from the same judgment dated 02.05.2017 passed by the learned Additional Sessions Judge, Taxila in case F.I.R.
No. 32/2016 dated 05.02.2016, under sections 302, 365, 201, 34, P.P.C., registered at Police Station Wah Cantt, Rawalpindi whereby the learned trial Court acquitted Raja Asif Ali, Javaid Iqbal and Muhammad Nadeem by extending them benefit of doubt whereas convicted and sentenced the appellants as under: MUHAMMAD ASHIQ (ACCUSED-APPELLANT) i. Convicted under section 302(b), P.P.C. and sentenced to Death with compensation of Rs. 2,00,000/- to the legal heirs of the deceased Liaqat Ali Khan under section 544-A, Cr.P.C., in default thereof to further undergo simple imprisonment for six months. In case of non-payment of compensation, the same would be a liability against the person and property of the convict. ii. Convicted under section 201, P.P.C. read with section 34, P.P.C. to seven years rigorous imprisonment with fine of Rs. 50,000/-, in default thereof to further undergo simple imprisonment for three months.
MST. NASEEM BIBI (ACCUSED-APPELLANT) i. Convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with compensation of Rs.
2,00,000/- to the legal heirs of the deceased Liaqat Ali Khan under section 544-A, Cr.P.C., in default thereof to further undergo simple imprisonment for six months. In case of non-payment of compensation, the same would be a liability against the person and property of the convict. ii. Convicted under section 201, P.P.C. read with section 34, P.P.C. and sentenced to seven years rigorous imprisonment with fine of Rs. 50,000/-, in default thereof to further undergo simple imprisonment for three months.
All the sentences shall run-concurrently and benefit of section 382-B, Cr .P.C. was, however , extended to her .
2. Brief facts of the case, as disclosed by Mubashir Shahzad, complainant (PW.12) in his statement (Exh.PJ) on the basis of which formal F.I.R. (Exh.P A) was registered are that his father was employee of Sui Gas Department.
On 25.01.2016 at 12:00 (noon) his father went to barbar for hair cutting and did not return back. He (complainant) searched for his missing father but in vain.
Allegedly , the appellants alongwith their co-accused committed Qatl-i-Amd of Liaqat Ali Khan (the deceased).
3. Muhammad Ashiq (appellant) was arrested on 06.02.2016 by Yasir Mehmood Abasi, S.I. (PW.15) who, on 12.02.2016, while in police custody , after making disclosure, got recovered service card of the deceased (P.2) which was secured vide recovery memo Exh-PC. He also got recovered last worn clothes of the deceased including cap (P. 8), jersey (P. 9), Shalwar (P. 10) and qameez (P. 11), taken into possession vide recovery memo Exh.PM. and Karandi (P. 12), Garmala (P. 13), Gaz (P. 14) and Spade (P. 15), secured vide recovery memo Exh.PN. On 15.02.2016, he also got recovered amount of Rs. 50,000/- from his residential room which were taken into possession vide recovery memo Exh.PL.
Mst. Naseem Bibi (accused-appellant) was arrested on 17.02.2016, she got recovered wrist watch (P.3) and glasses (P . 4) of the deceased, secured vide recovery memo Exh.PD.
4. Learned trial Court after observing all the pre-trial codal formalities, charge sheeted the appellants and their acquitted co-accused to which they pleaded not guilty and claimed to by tried.
5. The prosecution, in order to prove its case, produced as many as sixteen witnesses during the trial. The complainant Mubashir Shahzad entered the dock as (PW.12). Muhammad Khan, A.S.I. (PW.1) chalked out the formal F.I.R. (Exh.P A). Waqas Raza 7608/C (PW.3) escorted the dead body of the deceased for postmortem examination. Zafar Mehmood (PW.4), Nasir Ali Butt (PW.5) and Cecil Kazimi (PW.6) were witnesses of recovery of dead body from the gutter . Navepd Zareen (PW.10) identified the dead body of the deceased. Shamroz (PW. 11) was owner of the house wherefrom the dead body was recovered.
The medical evidence was furnished by Dr. Abu Hanifa, Medical Officer (PW.8) who, on 06.02.2016 conducted postmortem examination on the dead body of Liaqat All Khan (deceased). Probable time between injury and death was within 30 minutes and between death and postmortem was two weeks.
Bashir Ahmad Awan, Draftsman (PW.14) prepared scaled site plan Exh.PY/1-2. Shaukat Hayat Khan, A.S.I.
(PW.15) arrested Muhammad Ashiq appellant, on 06.02.2016. Yasir Mehmood Abasi, S.I. (PW.16) was the Investigation Of ficer of this case.
6. Learned Deputy District Public Prosecutor gave up Ghulam Akbar , Qurban Ali; Muhammad Arif Abdul Waheed, PWs being unnecessary .
7. The statement of the appellants under Section 342, of the Code of Criminal Procedure, 1898, were recorded.
They refuted the allegations levelled against them and professed their innocence. Responding to question No. 19 "Why this case against you and why the PWs have deposed against you?, the appellant Muhammad Ashiq stated that all the prosecution witnesses were interested witnesses and have deposed falsely .
However , to same question, Mst. Naseem Bibi (appellant) replied in the following manner: "The complainant registered a false and cooked up a false story just to grab money . The deceased was not murdered and he was not a good character , rather he was a womanizer , having scattered affairs in connection with numbers of females in vicinity and also involved in the business of prostitution. Deceased rented out the house for his lust and for the above said purpose . The deceased is also a patient of depression, anxiety and asphyxia (DAMMA) and he took medicines for that, and his death was caused due to above said disease and for not taking the medicine property . The deceased was not murdered, later on the complainant party concocted false story and roped me in a false case. All the PWs are the police officials and all the private witnesses are interested and related to each other . No independent person from the vicinity was cited or produced by the prosecution in the case in hand and they deposed falsely ."
8. The appellants did not appear as their own witness as provided under Section 340(2) of The Code of Criminal Procedure, 1898 in disproof of the allegations levelled against them. However , Muhammad Ashiq appellant produced application moved by complainant to P.S. Sadar Wah as Exh.DC and copy of Rapt No. 18 dated 31.01.2016 Police Station Sadar W ah as Exh.DD in his defence.
9. The learned trial judge acting on the material available on the record arrived at the conclusion that prosecution has succeeded to establish its case beyond pale of reasonable doubt. He held the appellants guilty , convicted and sentenced them as detailed above.
10. Learned counsel for the appellants taken us through the evidence available on the record and contended that no direct evidence in this case is available and the prosecution case is based on circumstantial evidence. He further contended that circumstantial evidence produced by the prosecution is defective, inconsistent and unreliable. He has contended that there is no evidence of commission of crime by the appellants and the prosecution miserably failed to prove its case beyond reasonable shadow of doubt, thus, the impugned judgment is liable to be set aside and the appellants may be acquitted of the charges. To augment his contention, learned counsel has relied upon "Aftab State and others v. Rahim Dad and others" (2005 MLD 1620 ), "Muhammad Shafigue Ahmad v . The State " (PLD 1981 SC 472 ), "Ziaul Rehman v . The State " (2001 SCMR 1405 ).
11. Learned Deputy Prosecutor General argued that though the case is limed upon circumstantial evidence but pointing out of the place of incident by the appellant Muhammad Aashiq, recovery of dead body from their house and postmortem report regarding unnatural death of the deceased provide proof of commission of crime by the appellants.
12. Learned counsel for the complainant submitted that the appellants lead to the recoveries of personal belongings of the deceased from their exclusive possession coupled with the recovery of dead body from a house rented out to them by Shamroz (PW. 11). He has contended that the cause of death in this case was asphyxia and the prosecution has proved conclusively that the deceased was done to death by them. In support of his submissions, learned counsel relied upon "Aftab Masih v. State " (1994 P.Cr.L.J. 1580), "Nisar Ahmad v. State"
(1994 P .Cr.L.J. 1587) and " Shamsud Doha v . The State and another" (2005 P .Cr.L.J. 310).
13. We have considered the submissions made by the learned counsel for the parties and have gone through the record.
14. The case of prosecution entirely based on circumstantial evidence. To claim conviction in a case depending upon circumstantial evidence, the prosecution must establish four basic requirements: i. The circumstances' from which the conclusions are drawn should be fully established; ii. All the facts must be consistent with the hypothesis; iii. The circumstances should be of a conclusive nature; and iv. The circumstances, should to a moral sanctity , actually exclude every hypothesis but the one proposed to be proved.
15. It is fundamental principle of universal application in cases depending upon circumstantial evidence that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. It is also not necessary to look for many circumstances in order to grant benefit of doubt to an accused and a single circumstance creating a reasonable doubt entitles the accused to such benefit which is not a mere principle of law but a rule of prudence which cannot be ignored because it is his vested right.
16. The incident was reported by Mubashir Shahzad (PW.12) son of Liaqat Ali Khan (the deceased), who left his house on 25.01.2016 at about 12:00 (noon) for his hair cut then having rupees seven lac (committee amount) with him. When the deceased did not turn up, the complainant moved the application (Exh.PJ) at police post No. 3, Wah Cantt for the registration of case. He nominated the appellants alongwith their acquitted co-accused including Muhammad Nadeem, Asif Ali and Javaid Iqbal. The only evidence collected during the investigation was recovery of dead body from a gutter of a house statedly occupied by the appellants. The house, however , was owned by Shamroz (PW.11). He never produced any document confirming the title of the house rented out to the appellants.
It was in the evidence that at the time of recovery of dead body the house was lying open and without any luggage.
The record further suggested that the appellants were also living in Mohallah Shaheedabad, Hassan Abdal. The prosecution has not produced any rent agreement confirming the tenancy between Shamroz and the appellants. It was also not registered with the rent tribunal. The Investigating Officer relied upon police verification form regarding the said house. We may mention that an affidavit, allegedly , sworn by Naseem Bibi is available on record without any details of the tenement. The subject matter of the affidavit (Exh.PG) was the clean antecedent of the tenant.
The affidavit, however , does not bear the signature of the appellants and was also not attested by some oath commissioner . So far as, police verification form is concerned, the details of the rented house are not reflected from any column. It appears that the said form has been maneuvered and prepared in haste as certain important columns are blank. In any case, the tenancy and exclusive possession of the house situated in Mehmoodabad by the appellants is not suggested by the evidence adduced by the prosecution during trial.
At this stage we may also mention that the Investigating Officer concluded that the story of keeping Rs. 7,00,000/- by the deceased at the time of his disappearance was not confirmed during the investigation.
17. After the recovery of dead body , the autopsy was held and the Medical Officer opined that asphyxia was cause of death. There was no evidence if the asphyxia was result of throttling, strangulatio n or hanging, etc. There was no ligature mark around the neck. No mark or bruise was observed by the Medical Officer around the neck of the deceased and above all, nobody came forward to assert that the deceased was done to death by the appellants.
18. After their arrest, the appellants led to certain recoveries including Service Card, watch and glasses of the deceased but no memo of identification was available on the file. The appellant Ashiq Ali also got recovered Rs.
50,000/- (P. 7/1-50), cap (P.8), Jersey (P. 9), Shalwar (P. 10), Qameez (P.11) but as mentioned above, the story of keeping Rs. 7,00,000/- by the deceased at the time of his disappearance was not endorsed by the Investigating Officer. There was also no evidence that the deceased was deceitfully called by the appellants-accused. The call data secured by the Investigating Officer has also not proved any link or conversation between the appellants or the deceased at or around the time of occurrence.
19. Thus, in view of the above discussion, the statements of PW.9 to PW.12 are not free from doubt, which do not inspires confidence. It may be observed that the dead body was recovered from a house owned by Shamroz (PW.11), who was also living in the adjacent house but none from the Mohalah came to know about the occurrence. There was no luggage and the house was lying open, thus, in these circumstances, it appears that only to show ef ficiency the Investigating Agency managed to strength and support the prosecution case.
20. It is settled principle of criminal justice that prosecution has to stand on its own legs and any doubt arising out of the case, has to be resolved in favour of the accused. The case in hand, entirely rests on the circumstantial evidence of the above witnesses and while examining the worth of their testimony , we are fortified with the parameters laid down by the apex Court in Criminal Appeal No. 1 of 1965 (The State v. Manzoor Ahmed ) and Criminal Appeal No. 2 of 1965 (Muhammad Ismail Khan v. Manzoor Ahmed and others) (PLD 1966 SC 664) wherein following observations were made: "Learned counsel appearing for the respo ndent has urged the necessity of exercising minute care before drawing any inference adverse to his client. It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial evidence, remember that the "processes of inference and deduction are essentially involved-frequently of a delicate and perplexing character -liable to numerous causes of fallacy ." Mere susp icion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and "incapable of explanatio n upon any other reasonable hypothesis than that of his guilt? It is also equally well-settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and no any and every kind of doubt and much less a doub t conjured up by pre-conceived notions. But once the circumstances have been found to be so established they may well-furnish a better basis for decision than any other kind of evidence. As Heward, I.C.J., observed in the case of Percival Leonard Taylor , James W eaver & George Thomas Danovan (1) "it is no derogation of evidence to say that is circumstances."
21. As mentioned above, where entire prosecution versions rests on the circumstantial evidence, all circumstances from which conclusion of guilt is to be drawn must be fully established. The prosec ution has to travel all the way to establish fully a chain of evidence which should be consistent only with the hypothesis of the guilt of the accused person and this circumstance should be of conclusive nature. It is not necessary that each circumstance by itself be conclusive, but cumulatively must form unbroken chain of event leading to the proof of the guilt. In assessing the evidence, in such like cases, imaginary possibilities have no role to play. When there is no direct evidence to the commission of crime and case rests entirely on circumstantial evidence, the chain of events corroborated by circumstances should be so for complete as not to leave any reasonable ground for conclusion consistent with the innocence of accused. Therefore, on the basis of what has come on record, in our view, the conviction of the appellants cannot be maintained under section 302(b), P.P.C. and there is no escape but to allow this appeal by setting aside the conviction and sentence awarded by means of impugned judgment.
22. In view of the above, we accept this appeal, set aside the conviction and sentences awarded by the learned trial Court to appellants and acquit them of the charges. Mst. Naseem Bibi, the appellant is on bail. Her bail bonds are cancelled and surety is discharged. Muhammad Ashiq, appellant is in jail. He is ordered to be released forthwith if not required in any other criminal case.
23. Murder Reference No. 51 of 2017 is answered in the NEGA TIVE and sentence of death awarded to Muhammad Ashiq son of W alt Dad appellant is NOT CONFIRMED .