MUHAMMAD KAMRAN KHAN MULAK HAIL, J.---This common judgment shall dispose of Criminal Appeal No. 375 of 2019 and Criminal Revision Petition No. 37 of 2019. as both these cases arise out of the same FIR and Judgment.
2. In Criminal Appeal No. 375 of 2019, the appellants have assailed the judgm ent dated 04th October 2019, (impugned judgment) passed by learned Sessions Judge. Killa Abdullah at Cham an (trial court) hereby the they have been convicted in the following manner: "In the wake of above discussion although the offence leveled against the accused persons proved but as the incident was an unseen one and on the surface nothing appeared to fix that who made fatal shots therefore accused persons namely Naqeebullah son of Junta Khan, Siddiqullah and Qudra tullah sons of Rehmatullah are convicted under section 302 (b) R/W 34 P.P.C. for committing Qatl-e-Amd of Jailani son of Agha Muhammad and sentenced to suffer R.I for life. The accu sed persons are also liable to pay an amount of Rs. 150,000/- each as compensation to the legal heirs of deceased as provided under section 544-A Cr. P. C and in default whereof they would suffer simple imprisonment for six months. However , benefit of section 382(B) Cr. P. C is also extended in favour of accused persons.
The Criminal Revision Petition No. 37 of 2019 has been filed by the complainant for enhancement of the sentence recorded against the appellants by the trial court.
3. Brief facts of the case are that on 09th May 2016 one Agha Muhammad registered the FIR No. 31 of 2016 at about 01:00 p.m. with Levies Station Chaman under Section 302 Qisas and Diyat Ordinance, read with Section 34 Pakistan Penal Code (P.P.C.), with the averments that on 06th May 2016, at about 03:30 p.m. his son namely Jailani aged about 25 years was present at home, when he received a phone call from unknown accused persons, whereupon his son Jailani left the house, but did not return ever since. On 09th May 20-15, he was informed that his son Jailani had been murdered by unknown accused persons, and his dead body was found lying in a Shella , which was brought to Civil Hospital Chaman by levies officials of Abdul Rehman Naka by Incharge Asghar Khan Ashezai and buried at College Road graveyard, consequently the instant FIR was lodged against unknown persons. Subsequently on 08th June 2016 the complainant filed his supplementa ry statement and nominated the appellants, as such, they were arrested in the instant case.
4. On registration of FIR Ex-P/14-A the investigation was initially entrusted to PW-14 Muhammad Younas Tehsildar Chaman , who conducted investigation, prepared site plan EX-P/14-B, sent a letter to the Zong Company for provision of Data in respect of mobile No.0312-0836855 Ex-P/14-C, prepared memos, recorded statements of witnesses, thereafter the investigation was transferred to the Crimes Branch, Quetta and entrusted to PW-11 Muhammad Ayub, Inspector Crimes Branch, Quetta, who conducted investigation, arrested the appellants, recovered the pistols from the possession of appellant Sidiqullah , dispatched the crime weapon for chemical examination, prepared incomplete challa n Ex-P/1 1-A received the FSL report Ex-P/1 1-B, prepared incomplete challan EX-P/1 1-C and recorded the statements of witnesses.
5. At the trial, charge was framed against the appellants, to which they did not plead guilty and claimed trial. During the trial, the prosecution produced following six witnesses:- I) PW-1. Agha Muhammad (complainant), who produced his report as Ex-P/I -A, his supplementary statement as Ex-P/1-B and af fidavit as Ex-P/1-C.
II) PW -2. Kakar , circumstantial witness.
III) PW -3 Salah-ud- Din Circumstantial witness.
IV) PW - IV Muhammad Gul , Circumstantial witness.
V) Asghar Khan, Dafadar , Incharge Killi Malak Abdul Rehman Chowki , who produced the recovery memo of dead body of deceased as Ex-P/5-A.
VI) PW-VI, Haji Ghulam Sarwar , who produced the recovery memo of mobile data as EX-P/6-A, mobile data as Art- P/6- 1 and Art/-P/6-2 and also produced the recovery memo Ex-P/6-B, through which recovery memos and statements of witnesses in FIR No. 39 of 016, were taken into possession.
VII) PW-7 Muhammad Shafiq Dafadar (Recovery witness), who produced recovery memo of 8 empties of TT Pistol and 7 empties of Megaroof pistol as Ex-P/7-A, and also produced the same as Articles.
VIII) PW -8, Abdul Baqi witness to the recovery of dead body and empties from the place of incident.
IX) PW-9, Saadullah , who is witness to the recovery of pistol No. .33337 along with two magazine and 10 live cartridges and two Nokia phones from the possession of appellant Sidiqullah .
X) PW -10, Watan Yar, Khasadar , is witness to the recovery memo of pistol.
XI) PW -11 Muhammad Ayub, IP(R) Crimes Branch, is the second Investigating Of ficer of the case.
XII) PW -12 Wazir Muhammad ASI, who is witness to the disclosure memo of appellant Qudratullah.
XIII) PW-13, Dr. Zia ud Din Medical Officer, Civil Hospital Chaman, who inspected the dead body and issued death certificate Ex-P/13-A.
XIV) PW -14, Mhammad Younas, Ex-T ehsildar , who is first Investigating Of ficer of the case.
XV) Abdul Jabbar , Risaldar Levies Headquarter , Chaman , who produced incomplete challan EX-P/15-A.
6. On, conclusion of prosecution evidence, the appellants' statements under Section 342 of the Cr.P.C. were recorded, in which they once again professed their innocence, however , they did not opt to record their statements on oath as envisaged under Section 340(2) of the Cr.P.C. and also did not opt to produce any defence witness in their favour . The learned trial court, on conclusion of the trial, convicted and sentenced the appellants as mentioned hereinabove, hence this appeal.
7. Learned counsel for the appellants contended that the impugned judgment suffers from misreading and non- reading of evidence; that the incident is unseen and there is no direct evidence connecting the appellants towards the commission of offence; that the alleged recovered pistol has been dispatched for analysis with unexplained delay of more than four months; that there is contradiction amongst the statements of the prosecution witnesses; that there is no incriminating evidence available against the appellants to connect them with the commission of the offence; that there are material irregularities and illegalities in the impugned judgment, which is liable to be set- aside. He lastly urged for acquittal of the appellants.
8. Conversely , learned Counsel for the complainant, assisted by the learned State counsel strongly opposed the contention of learned counsel for the appellants and contended that the prosecution has successfully proved its case against the appellants through confidence inspiring evidence; that the appellant Qudratullah has admitted his guilt by recording his disclosure before the prosecution witnesses during the course of investigation; that the prosecution has produced sufficient incriminating evidence against the appellants and the learned trial court has rightly convicted the appellants for commission of of fence. He lastly urged for dismissal of the appeal.
9. We have heard the learned counsel for the parties and have perused the record with their able assistance.
10. Admittedly , this case squarely rests on circumstantial evidence.
Initially , the incident was reported by complainant Agha Muhammad himself on 09th May 2016, wherein he charged unknown culprit for committing the murder of his deceased son, but after one month of the initial report on 08th June 2016 the complainant filed is supplementary statement before the Investigatin g Officer, wherein he nominated the appellants for commission of the offence, stating therein that he was told by Salah-ud-Din that the deceased Jailani was going on picnic with Naqeebullah , Sidiqullah and Qudratullah , while Kakar and Muhammad Gul had also witnessed deceased with the appellants. In cross-examination he stated that he came to know about the incident on 09th May 2016 and filed his report before the Tehsildar on the same ay. Pw-2 Kakar , and PW-3 Salah- ud-Din , claimed to have witnessed the deceased in a vehicle accompanying the appellants, however , they have not witnessed the commission of offence by the appellants. They also stated that on 07th May 2016 they submitted a report about missing of the deceased Jailani , but neither any such report was produ ced nor was available on record. Though the learned trial court exhibited the supplementary statement of the complainant, but the same has no evidentiary value in the eyes of law and cannot be termed as a piece of evidence more than a statement recorded under Section 161 Cr.P.C. The Hon'able apex Court in a judgment reported in PLD 2003 Supreme Court Page /419 Khalid Javed v The State held as under: "As far as supplementary statement of a complainant is concerned its value is not more than a statement under section 161, Cr.P.C. , in this behalf refere nce may be made to the case of Falak Sher alias Sheru v. The State (1995 SCMR 1350 ). In this report appellant Falak Sher was not nominated in the FIR. However , subsequently complainant involved him by making supplementary statement deposing therein that the unidentified person was appellant who had earlier served with him for two years and was on visiting terms. Accordingly he was put to trial and was convicted by the trial Court and sentenced the accused to life imprisonment. In appeal the Federal Shariat Court maintained the conviction and sentence. As such appellant and two others filed petition before this Court.
Leave was granted only to appellant Falak Sher whereas the same was refused to the co-accused. While evaluating the case of both the sides it has been laid down that FIR is the document, which is entered into 154, Cr.P.C. book maintained at the police station at the complaint of the informant. It brings the law into motion. The police under section 156, Cr. P. C. start investigation of the case. Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it.
Consequently it was held that as the name of appellant does not appear in the FIR, resultantly he was acquitted of the charge. The dictum laid down in this case has been followed by a Division Bench of Lahore High Court in the case of Anees-ur-Rehman and another v. The State (PLD 2002 Lahore 110). It may be noted that in this case a distinction has been made by making observation that FIR is a document which is entered into a book maintained at the police station and thumb-marked or signed by the first informant while the supplementary statement is recorded under section 161, Cr. P. C. and is not signed or thumb-marked. So is the position in the instant case as well because FIR Exh.P/O was signed by P.W. Naveed Anwar Naveed as it is evident from the footnote of the FIR Exh.P/O on which he put his signatures whereas he has not signed the supplementary statement Exh.D/B, therefore, its value will be determined keeping in view verdict of the case-law noted hereinabove.
11. Another circumstantial piece of evidence relied upon by the learned trial Court, is the recovery of 8 empties of 30 bore TT pistol and 7 empties of megaroof pistol from the spot, and two pistols, allegedly recovered from the shop of appellant Sadiqullah . As per prosecution case two pistols 30 bore bearing No.33337 and TT pistol bearing No.31009244 were recovered from the possession of appellant Sidiqullah on 24th May 2016, however , from the place of incident 8 empties of TT pistol and 7 empties of megaroof pistol were recovered. Both the recovered pistols and the empties were sent to the Punjab Forensic Science Agency with the delay of four months, but there is no explanation in respect of the safe custody of the empties, alleged crime weapons in the Custody of the Investigating Authority . Furthermore, it is noted that the FSL report contains the fact that the empties sent for analysis have been identified to have been fired from the .30 bore pistol and TT pistol, but astonishingly , the empties so recovered from the spot and sent to the expert were of megaroof pistol, which cannot match with 30 bore pistol. It is also noted with grave concern, that the FSL report also contains an entry of 9MM empties, but the entire record is silent about the recovery and use of such weapon, which further creates serious doubt in the prosecution version. The delay so caused in sending the recovered alleged crime weapon for chemical analysis is unexplained and also there is no explanation in respect of the safe custody of the crime weapon within the custody of the Investigating Authority . Moreover , sending crime empties along with alleg ed recovered pistols, created a serious doubt, as why the crime empties were retained by the Investigating Officer till recovery of pistols, then sending them together has created serious doubt when possibility of manipulation cannot be ruled out. The Hon' ble apex Court in its judgment reported in 2008 SMCR Paze 707 Ali Sher v . The State held that:
10. Three crime-empties of .7 m.m. rifle and two crime-empties of .12 bore gun had been allegedly found at the place of occurrence which had been taken into possession by Jehangir Khan, S.-1./S.H.O. (P.W.14). Even if it be presumed that the said crime-empties were in fact available at the spot and had been rightly recovered by the investigating Officer , it is a pity that the said crime-empties had been retained in the police station for more than three weeks and had been sent to Forensic Science Laboratory only on 14-4-1995 and that also along with a .7 m.m. rifle and a .12 bore gun which had been allegedly recovered at the instance of Ali Sher and Gohar Ali respectively . No explanation had been offered as to why the crime-empties had not been dispatched immediately to the Forensic Science Laboratory specially when one Muhammad Mushtaq F. C. (P. W-13) and gone to Lahore on 28-3-1995 carrying the blood-stained earth found in this case for transmitting the same to the Office of the Chemical Examiner .
11. The crime-empties having been allege dly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony .
12. Adverting to the other evidence in the shape of C.D.R data, it is noted that the Investigating Authority has taken into possession the CDR data of the deceased's mobile, and there is nothing on record in respect of the CDR of the appellant Qudratullah , who had allegedly called the deceased. Furthermore, it was not clarified as to whether the telephone/ SIM number was in the name of the deceased Jailani , as the same fact has not been established through record. Even assuming that the last call was made by the appellant to the deceased that may be for any other reason and not for the offence, therefore, just by placing mobile data on the record would hardly be of any use to the prosecution. It is also to add here that the CDR produced and relied by the prosecution was neither attested nor signed by the issuing authority , nor any witness was either associated during investigation, nor produced before the court, thus also cannot be relied as a valid piece of evidence.
13. There is no cavil to the proposition that conviction can be recorded on the basis of circumstantial evidence and even death sentence can be awarded to an accused on circumstantial evidence, provided the circumstances constitute a continuous chain without missing any link, combined effect of which establishes the guilt of accused beyond any shadow of doubt. This dictum has been laid down by the august apex court in case titled, "Muhammad Ishaq v. The State" (2009 SCMR 135). The fundamental principle of universal application in cases dependent on circumstantial evidence, is that in order to justify inference of guilt of accused, incriminating fact must be incompatible with innocence of accused or guilt of any other person and incapable of explanation upon any other reason hypothesis than that of his guilt. In such cases it is imperative for the prosecution to prove the alleged circumstances as of conclusive nature to exclude every hypothesis, but one proposed to be proved. The circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond all reasonable doubts and must be clearly connected with the fact sought to be inferred therefrom. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. All the links of circumstances should be so interconnected with each other as to form a continuous chain, one end of which should touch the dead body and the other end should touch the neck of the accused. One single link missing in the chain would entitle the accused to benefit of doubt.
14. Now we have to evaluate the case in hand at the touchstone of the principles settled by the apex Court referred above. The first circumstance, which goes against the prosecution, is the initial report of complainant wherein he charged unknown culprit for committing murder of his son, but subsequently filed his supplementary statement after one month of the initial report, nominating the appellants for commission of the offence. From the place of incident, the investigating authority collected 8 empties of TT pistol and 7 empties of megaroof pistol, and at the time of arrest two pistols bearing No. 33337 and 31009244 respectively were allegedly recovered from the shop of appellant Sidiqullah and sent for chemical analysis along with the recovered shells, but surprisingly the FSL report contained the number of one pistol as 31009244, but in respect of the second one it is mentioned that the number is obliterated, and the report also contained the fact that the empties are fired from both the pistols, while no reference weapon in respect of 9MM empties was shown to have been filed. It is to point out here that as per recovery memos and site plan, neither any weapon of 9MM was used, nor any shall were recovered, rather the empties of megaroof were alleged to have been recovered, thus it altogether created very serious doubts. It is also imperative to add here that the empties and recovered pistol were together sent to the examiner and that too with the delay , without any explanation in respect of their safe custody . The circumstances, discussed above, broke the chain of circumstances connecting the appellant with the commission of of fence.
15. It is settled law that if the evidence does not establish a strong chain of circumstances which could not be explained away on any hypothesis other than the guilt of the accused, conviction in such eventualities would not be legal, because circumstantial evidence should point inevitably to the conclusion that the accused and the accused only is the perpetrator of the offence and such evidence should be incompatible with innocence of the accused, which is lacking in the case in hand. Here I would refer the view of the Hon'ble Supreme Court about circumstantial evidence in the case of " M.D. Nazir Hussain Sarkar and another v . The State" (1969):- "An accused cannot be found guilty unless all reasonable hypothesis, which are consistent with his innocence, have been excluded.
Further held in case of Advocate-General, Government of East Pakistan v. Majid alias Abdul Majid [1970 SCMR 12 ).
"If the evidence does not establish strong chain of circumstances which could not be explained away on any hypotesis other than the guilt of the accused conviction under section 302, P .P.C. would not be legal".
"A very high quality of evidence is require d and chain of events has to be completed with a view to establish guilt of accused beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight and quality of prosecution evidence. Where the prosecution fails to prove circumstances in a manner to make it beyond reasonable doubt, judgment of High Court in rejecting such evidence is in accord with principles recognized for safe administration of criminal justice". (PLD 1986 SC 690 ).
"Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused" (1992 SCMR 1047 and 1999 SCMR 1034 )."
16. For what has been discussed above, we are of firmed view that the prosecuti on has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring ocular or circumstantial evidence beyond shadow of reasonable doubt. The circumstantial evidence relied upon by the prosecution does not make a chain so that its one end touches the dead body of the deceased and other the neck of the appellant, but having ample doubts in the prosecution case. It is settled law that one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim " it is better that ninety-nine guilty persons be acquitted rather than one innocent person be convicted."
Thus, in view of above the appeal is allowed. The impugned judgment dated 04th October 2019, passed by the learned Sessions Judge Killa Abdullah at Chaman is set-aside. Consequently , the appellants Nagebullah son of Juma Khan, Sadiqullah and Qudratullah sons of Rehmatullah are acquitted of the charge under Section 302 Qisas and Diyat Ordinance read with Section 34 P.P.C. in case FIR No.31 of 2016, Levies Thana Chaman . The appellants being in custody are ordered to be released forthwith, if not required in any other case.
Since no case is made out against the appellants, therefore the Criminal Revision Petition No. 37 of 2019 is dismissed accordingly .