Asjad Javaid Ghural, J. Through the titled criminal appeal in terms of Section 410 Cr.P.C. appellant Abdul Hafeez has challenged the vires of judgment dated 31.05.2012 passed by the learned Additional Sessions Judge, Multan in case FIR No.368/2008 dated 01.08.2008, in respect of offence under Section 302 PPC, registered at Police Station, Seetal Mari, Multan whereby he was convicted and sentenced as under:- Under Section 302(b) of Pakistan Penal Code.
Imprisonment for life and to pay Rs.2,00,000/- to the legal heirs of deceased Muhammad Bilal as compensation under Section 544-A Cr.P.C. and in default thereof further undergo simple imprisonment for six months.
Benefit of Section 382-B Cr .P.C. was extended to the convict.
2. The prosecution story unfolded in the crime report (Ex.P A/1) registered on the complaint of Naveed Afzaal (PW- 1) is that he was resident of New Multan and having established restaurant at Vehari Chowk, Multan with the name and style of "Naseer Plaza". On 31.07.2008 at about 4:15 p.m., he was present at the counter of his restaurant when a person having CNIC No.32304-2437985-7 hired room No.2 in the restaurant. After booking the room said person asked that his luggage present in the rickshaw be kept in his room. The complainant asked his employee namely , Ghulam Rasool @ Akram, who shifted the luggage, which was a sack to the said room. On the next day i.e. 01.08.2008 at about 01/02:00 p.m. on feeling bad smell, he became worried and checked the entire restaurant to detect the source of bad smell. When he opened room No.2 through duplicate key, he found that aforementioned sack was lying there and blood was present on the floor of the room. The perso n at the time of hiring the room disclosed his name as Muhammad Talat Munir Khan son of Munir Ahmad Khan, resident of Near Middle School Khan Garh, District Muzaf fargarh. Upon opening the sack, he found corpse of an unknown person smeared with blood and mustard colour tape was pasted around his head.
3. Akhtar Hussain Shah, SI (PW-10) visited the place of occurrence on 01.08.2008, took all necessary steps of initial investigation, prepared all the relevant documents, escorted the dead body of the unknown deceased to the mortuary and recorded the statements of witnesses under Section 161 Cr .P.C.
On 02.08.2008 Muhammad Umar (PW-6)/brother of the deceased presented a written application (Ex.PE) before Sabir Hussain, SI (PW-8) stating that he had identified the dead body of the deceased being his real brother namely , Muhammad Bilal Chawla in Nishtar Hospital, Multan and nominated the appellant to be the accused for committing murder of his brother . He recorded statements of the witnesses under Section 161 Cr.P.C. and arrested the appellant on 09.08.2008, who led to recovery of Chappel (P-3/1-2), Soa (P-4), Ciba (P-4/1), Purse (P-5), photo- graph of the deceased (P-6), copy of I.D. card (P-7), Mobile Phone (P-8) from his house, which were taken into possession through recovery memo (Ex.PF). After completion of investigation, he got prepared the report under Section 173 Cr .P.C.
4. At the commencement of the trial the prosecution examined ten witnesses besides the report of Chemical Examiner (Ex.PN). The appellant, in his statement recorded under Section 342 Cr.P.C., denied and controverted all the allegations of fact leveled against him. He opted not to make his statement under Section 340(2) Cr.P.C. on oath, however , produced documents (Ex.DA to Ex.DH) and (Mark-A to Mark-D) in his defence evidence.
5. Dr. Aamir Qayyum (PW-9) held autopsy on the dead body of deceased Muhammad Bilal on 02.08.2008 at about 06:00 p.m. and did not observe any injury on any part of the dead body . The cause of death was suffocation as a result of application of adhesive solution tape many times on face, nose and mouth leading to Asphyxia. The probable duration between injury and death was immediate, whereas, between death and post mortem examination, it was about three to five days.
6. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant, as stated above vide judgment impugned. Hence, this criminal appeal.
7. I have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and perused the record.
8. The prosecution case was that a dead body of deceased Muhammad Bilal was found in room No.2 of restaurant "Naseer Plaza" at Vehari Chowk, Multan being run by Naveed Afzaal (PW-1), who furnished information to the police through written application (Ex.P A), upon which formal FIR (Ex.P A/1) was lodged. Subsequently , Muhammad Umar (PW-6), brother of the deceased, set up a specific motive against the appellant through application (Ex.PE), upon which he was arrested on 09.08.2008. During trial, the prosecution lead following pieces of evidence in order to prove the charge of homicidal death of the deceased at the hands of the appellant:-
(i) Testimonies of Naveed Afzaal (PW-1)/owner of the restaurant and Ghulam Rasool @ Akram (PW-2)/servant of the restaurant from where the dead body of the deceased was found lying in the room hired by the appellant.
(ii) Last seen evidence of Abdul Rehman Salfi (PW -7).
(iii) Motive.
9. The case of the prosecution completely hinges upon circumstantial evidence. In order to rely upon such type of evidence, the apex Court has laid down stringent principles, in particular , in cases involving capital punishment. It has been time and again held that such type of evidence must be of the nature, where all circumstances, must be so inter-linked, making out a single chain, an unbroken one where one end of the same touches the dead body of the deceased and the other at the neck of the accused. In the recent judgment reported as Naveed Asghar and 2 others Vs. The State (PLD 2021 Supreme Court 600) the apex Court has set down the standards of care required for relying on circumstantial evidence in the following terms:- "The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person can be suggested, the case is fit for conviction of the accus ed person on such conclusion; however , if such facts and circumstances , can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case is to be treated one of insuf ficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality , it will be highly unsafe to rely upon the same for conviction; rather , not to rely upon such evidence will a better and safer course."
10. It is on the touch-stone of the above esteemed judgment, I have to analyze as to whether the prosecution evidence so produced is of such a standard/stature, which can be made basis to uphold the conviction and sentence of the appellant. In the present case, first link in the chain of circumstantial evidence was the testimonies of Naveed Afzaal (PW-1)/ owner of the restaurant and Ghulam Rasool @ Akram (PW-2)/servant of the restaurant from where the dead body of the deceased was recovered and the room was allegedly hired by the appellant. In the complaint (Ex.P A) it was well mentioned that the person, who hired the room, from where the dead body of the deceased was recovered, had been booked by one Muhammad Talat Munir Khan. Learned defence counsel emphatically argued that the name of her client was Abdul Hafeez and he has no nexus with said Talat Munir Khan and even the number of I.D. card mentio ned in the record does not relate to the appellant. When confronted with this situation, learned Law Officer submits that the appellant, in order to defraud restaurant owner , while affixing his picture upon the CNIC of some other person, booked the room in the restaurant. This submission of the learned Law Officer does not find support from even a single piece of evide nce. Even, the copy of CNIC which was submitted at the time of hiring the room had not been made part of the evidence in the shape of exhibit or mark, in the absence whereof, no adverse inference qua the appellant' s non-involvement in hiring the room could be drawn. Furthermore, admittedly , the appellant was not known to both these witnesses, therefore, after nomination of the appellant by Muhammad Umar (PW-6), brother of the deceased, it was incumbent upon the Investigating Officer to make effort for his test identification parade. The paramount purpose of test identification parade was to establish the identity of a culprit, in cases where the crime report was lodged against unknown person/persons. Here in the instant case, the first link which, in case of proper identification of the appellant by the persons from whom he hired the room, in which the dead body of deceased was lying, is patently missing.
Learned Law Officer tried to argue that both these witnesses identified the appellant as real culprit while recording their testimonies before the Court. This is not the spirit of law. After formal arrest of the appellant, he was continuously appearing before the trial Court, as such he was fully exposed to the said witnesses to be a person, being charged for the murder of deceased Muhammad Bilal, therefore, at said belated, stage recognition of the appellant by the witnesses does not serve the purpose having no beneficial purpose for the prosecution, as such this piece of evidence cannot be made basis for conviction and sentence of the appellant.
11. The second incriminatory circumstantial evidence relied upon by the prosecution was the last seen evidence of Abdul Rehman Salfi (PW-7). He deposed before the learned trial Court that on 29.07.2008 he alongwith Muhammad Umar PW was present at his PCO shop situated at Tehsil Jahanian, when the deceased told them that the appellant called him at his house for payment of amount lend by Muhammad Umar PW. On the following day i.e. 30.07.2008, he alongwith deceased Bilal and Atta-ur-Rehman (given up PW) went to the house of appellant at Multan, where the appellant sought some more time for payment, on the same day. On his assurance, he alongwith given up PW left the house of the appellant leaving behind the deceased to collect the amount. Muhammad Bilal did not return to the house till 2/3 days. They searched him and after three days received information qua an unidentified dead body lying in the mortuary of the Nishtar Hospital, Multan, which was subsequently identified as of deceased Muhammad Bilal. The story narrated by this witness does not appeal to ordinary prudence. Admittedly , the said witness as well as the deceased was belonging to Jehanian, from where they left for Multan for the sole purpose of collecting borrowed amount from the appellant. Astonishingly , the appellant, who himself called the deceased to receive the amount, deferred the same for some hours, not days and the witnesses left the deceased at the house of appellant without accomplishing their task for which they had visited Multan. This witness has failed to explain as to why they left the deceased alone, in particular , when the payment of amount was to be made on the same day .
12. Another most intriguing factor which cannot be left unnoticed is that according to Abdul Rehman Sali PW-7, the deceased did not return home and they kept on searching him for 2/3 days. Had the deceased been lastly seen in the company of the appellant by the said witness, they would have naturally appro ached the appellant or at least, to inform the police, which casts serious doubt qua veracity of the statement of this witness.
Moreover , according to this witness they alongwith the deceased visited the appellant' s house on 30.07.2008, whereas, Dr. Aamir Qayyum, (PW-9), who held autopsy on the dead body of deceased on 02.08.2008 during cross- examination deposed that "Possibility cannot be ruled that as per condition of the deceased the time between death and post mortem may be five to seven days. " If the opinion of doctor is taken into consideration then the deceased was already done to death prior to the date when this witness had lastly , seen him in the company of the appellant. Keeping in view the above factors, I am constrained to hold that the last seen evidence adduced by the prosecution is nothing but a cosmetic baseline manufactured by the prosecution just to knit the net around the neck of the appellant, after recovery of the dead body of deceased.
12. Now coming up to the motive part of the occurrence. According to Muhammad Umar (PW-6), the appellant, who happens to be the friend of the deceased, borrowed an amount of Rs.25,000/- from him and upon demand, the appellant, in the presence of the witnesses, extended life threats to the deceased. As per own story of the prosecution, the appellant borrowed the amount from the said witness and not the deceased directly , therefore, naturally , if there was any dispute qua return of said amount, the same must have been against the said PW and not the deceased.
Moreover , according to this witness, two days prior to the occurrence, the appellant extended life threats to the deceased but in this regard neither any crime report nor any rapt was lodged in any police station. Furthermore, it is beyond imagination that despite knowing the intention of the appellant to kill the deceased on demand of borrowed amount, this witness, who was real brother of the deceased, permitted the deceased to went another city for collection of the borrowed amount from the appellant and despite his non-return to home for almost three days, he did not make any effort to get lodge crime report against the appellant and kept on waiting till the recovery of dead body of the deceased. In the attending circumstances, motive set up by the prosecution was cryptic, infirm in nature, without any substance and the same deserves to be rejected outrightly .
13. Recovery of Chappel, purse containing snap of deceased as well as deceased' s CNIC and mobile phone belonging to the deceased at the instance of the appellant from his own house is of no avail as admittedly , the appellant and the deceased had friendly relationship, therefore, presence of these belongings of the deceased in the house of the appellant is neither unusual nor in any manner can be construed to be a proof of guilt of the appellant.
14. Scanning of the evidence from all angles and considering all aspects after fair reappraisal of evidence, I am of the considered view that the prosecution has failed to prove the charge against the appellant beyond shadow of any reasonable doubt. It was a blind murder and none had seen the occurrence with one's own eyes. The entire prosecution case hinges upon the circum stantial evidence, which for the reasons enumerated herein above is not of such a standard/stature to make basis for maintaining conviction and sentence of the appellant. I have entertained no manner of doubt in my mind that the prosecution has failed to bring home guilt of the appellant beyond shadow of reasonable doubt. It is well settled law that even a single doubt if found reasonable, would entitle the accused to acquittal and not combination of several doubts is foundational principle of justice. Reliance in this regard is placed on case reported as Riaz Masih @ Mithoo .V . The State ( 1995 SCMR 1730 ).
15. The epitome of above discussion is that the appeal in hand is allowed , the conviction and sentence of the appellant is set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is present on bail, his bail bonds as well as the surety stand discharged from the liability .