GHULAM AZAM QAMBRANI, J.---Through this consolidated judgment, I intend to decide Criminal Appeal No. 50 of 2016, Jail Appeal No.179 of 2016 and Criminal Revision No.53 of 2015, arising out of the same judgment dated 24.02.2016, passed by the learned Additional Sessions Judge, Islamabad-W est, whereby the appellant was convicted under section 302(b), P.P.C. and awarded sentence of life imprisonment as Tazir along with payment of Rs.5,00,000/- as compensation to the legal heirs of deceased as provided under section 544-A of Cr.P.C., in default whereof, to further undergo six months S.I. The appellant was also extended benefit under section 382-B of Cr .P.C.
2. Briefly stated facts of the case are that on the application (Ex.P A), a Rapt was registered at Police Station Margallah, Islamabad, wherein, it was reported that the deceased Muhammad Asif was residing along with his family at House No.B-1/3, Street No.5, Sector E-8, Navel Complex, Islamabad, and was performing duties as Driver in PNS Zafar . On 11.10.2012, at about 22:00 hours, after closing duties, he left for his home. His wife, Shazia Kousar , had gone for her duty in the morning at 7:30 a.m. Her daughter namely , Faiza Bibi, at about 09:00 a.m., found her father dead. The deceased was shifted to PNS Hafeez Hospital, where, on examination, the death of the deceased was confirmed with the observation that there were marks of violence on his throat. After conducting post-mortem and on receipt of report, criminal case was registered. The post-mortem of the deceased was conducted by PW-8, Dr. Muhammad Farrukh Kamal. The cause of death was stated unnatural and caused by strangulation, trauma to testis and neck vessels. On identification of the dead body , Fard Shinakhat Laash (Ex.PB) was prepared and regarding receipt of dead body (Ex.PC) was also prepared and signatures of the witnesses were obtained thereon. The last worn clothes of deceased before the post-mortem were also taken into possession through Ex.PE and six photographs of the deceased before the post-mortem were taken into possession through recovery memo Ex.PF . After the postmortem and necessary investigations, the dead body was handed over to the legal heirs of the deceased for its burial. After receiving the post-mortem report (Ex.PG), FIR No. 521 of 2012 dated 16.10.2012 was registered. PW-16, Investigation Officer, visited the place of occurrence but it was found locked because the family of the deceased had proceeded to their prove town for burial of the deceased. PW-16, started investigation, recorded statements of Navel Complex Police officials, present over there. On 18.10.2012, the legal heirs of the deceased came back to their house; the Investigating Officer reached at the spot and recorded statements of witnesses. PW-4, Mst. Faiza Bibi, is the daughter of the deceased. While recording her statement, she disclosed the fact that the appellant, Sikandar Ali, and her mother namely , Shazia Kousar had committed the murder of her father . Both the accused persons were arrested. During the course of investigation, on 19.10.2012, the Investigating Officer took into possession entry data of the Navel Complex along with copy of I.D. card of appellant (Ex.PD), which was for the house of deceased. On 30.10.2012, co-accused Shazia, led the police to her home and on her pointation, the police took into possession a pillow , a mobile phone along with two SIMs through recovery memo "Ex.PF A". On 29.11.2012, mobile data of the phone number of the co-accused Shazia and the mobile phone number of the appellant was collected through recovery memo "Ex.PN". During the investigation, co- accused Shazia Kousar made disclosure of the commission of offence and later on, her statement under section 164, Cr.P.C, was recorded by the Assistant Commissioner , Magistrate 1st Class, Islamabad. During investigation, on 03.11.2012, the accused, Sikandar Ali, disclosed the commission of offence committed by him and on his pointation, rope Ex.P7 was taken into possession through recovery memo Ex.PMM and prepared un-scaled site plan Ex.PQ.
3. After completion of the investigation, report/challan under section 173, Cr.P.C. was submitted before the learned trial Court. After fulfilling codal formalitie s by the learned trial Court, charge was framed against the appellant / convict and co-accused Mst.Shazia Kausar , to which they pleaded not guilty and claimed trial. In order to prove the guilt against them, prosecution examined as many as seventeen (17) witnesses. During trial, co-accused, Shazia Kausar disappeared; therefore, she was declared Proclaimed Of fender .
4.On closure of the prosecution evidence, statement of the appellant/ convict under section 342, Cr.P.C. was recorded, wherein all the incriminating evidence recorded in his presence was put to him, he claimed innocence.
However , he neither deposed on oath as per section 340(2), Cr .P.C. nor produced any defence evidence.
5. After recording evidence and hearing arguments of the learned counsel for the parties, the learned trial Court passed impugned judgment dated 24.02.2016, whereby , the accused was convicted and sentenced as mentioned above, hence this appeal.
6. Learned counsel for the appellant/convict has contended that the appellant is innocent, he has falsely been implicated in the instant case, the impugned judgment is against the facts, law and record; that there is an inordinate and unexplained delay in regist ration of the FIR; that there is no direct evidence to connect the petitioner with the commission of the alleged offence; that the co-accused (Shazia Kousar) herself permitted for the post- mortem of the deceased: that no report with regard to administering poison was brought on record. The statement of PVV-4 is not natural as at that time she went to her college; that no doctor from the PNS Hafeez Hospital, was examined: that the crime weapon rope (Rassi) was allegedly recovered after unexplained delay; that the case of prosecution hinges upon circumstantial evidence with broken chain: that the complainant has not mentioned his source of information while reporting to the police; that there is no disclosure of the appellant; that there is no truth that the recovery of rope was effected on the pointation of the appellant; that during the trial, original record of the PNS Zafar Gate was not brought before the Court.
7. Conversely , learned State counsel assisted by learned counsel for compla inant vehemently opposed the contentions raised by the learned counsel for the appellant and contended that PW-4 (Mst. Faiza Bibi), when found her father in dead condition, she informed the matter to the office where her father was performing duties on mobile phone; that at the first instance, the doctors of the PNS Hafeez Hospital advised for the post-mortem of the deceased as there were marks of violance on the person of the deceased; that the post-mortem was conducted and concluded that the death of the deceased occurred due to strangulation; that on the day of occurrence, the appellant was present at the house of the deceased; that no private person without admission can enter the premises of the Navel Complex, Islamabad; that the appellant at PNS Zafar Gate got his entry leaving a copy of his CNIC with the information that he was going to the house of the deceased; that PW-4 (Mst. Faiza Bibi), is an eye- witness of the occurrence, who saw the appellant at her home before the commission of the alleged offence; that during investigation, the appellant disclosed the commission of offence i.e. murder of the deceased by strangulation with a white colour rope and in the morning, while going back, he threw the said rope near the Navel Complex Gate under the trees; that on the pointation of the appellant, crime weapon i.e. rope was got recovered; that all the prosecution witnesses are impartial: that no was ever suggested by the appellant to the witnesses: that on the pointation of the co-accused, pillow was also recovered beside recording her statement under section 164 of Cr.P.C; that the medical report confirmed the unnatural death of the deceased; that the mobile phone data was brought on record, which proved the fact that there was conversation in between the appellant and the co-accused Mst. Shazia; that the prosecution has proved the case against the appellant beyond any shadow of doubt; that there exists no contradiction in the statements of the witnesses. Lastly , prayed for dismissal of the appeal.
8. I have heard the arguments of the learned counsel for the parties and have perused the available record with their able assistance.
9. Perusal of the record reveals that PW-4, the daughter of the deceased, while present at home at about 09:00 a.m., found her father in dead condition. She immediately informed the office of the deceased through cellular phone. Upon which, PW-14 (Asif lqbal), a Medical Technician, serving at PNS Hafeez Hospital along with First Aid Bag in ambulance, reached at the house of the deceased and shifted the dead body to PNS Hafeez Hospital whereafter , the matter was reported to the police through PW-1, Zahoor Ahmed, Pati Officer, at Pakistan Navy . He stated that doctors present on duty, after examination, declared him dead and further explained that there were marks of violence on throat of the deceas ed. The 'post-mortem of the deceased was necessary for ascertaining the cause of death. On his report, a rapt No.37 under section 174 of Cr.P.C. (Ex.PR) was registered in the Roznamcha at the Police Station Margallah, Islamabad. The post-mortem of the deceased was conducted by PW-8, Dr. Muhammad Kamal, MLO/ Deputy Director PIMS. Islamabad, prepared post mortem report along with diagram (Ex.PG) and death certificate (Ex.PK). On examination found the following injuries:-- EXTERNAL EXAMINA TION.
A middle aged man height 5 feet 6 inches wearing light green (Angori) colour shirt, light brick red shalawar white vest, bleeding from mouth and nose, hair mustache beard grey and white. FOLLOWING INJURIES WERE NOTED ON THE BODY OF THE DECEASED Injury No. 1.
Scar Mark around neck 36 c. m. 9 c.m from right ear and 7 c.m. from left ear .
Injury No. 2.
Bruise on left side of forhead 1.5 x .5 c.m.
Injury No. 3.
Bruise 3 x 1 c.m. on neck below from right ear Injury No 4.
Bruise mark on scrotum 2 x 2 c.m. on right side Injury No 5.
Injury No 5.
Bruise on left of side of scrotum 2 x 2 c.m.
Injury No. 6.
Bruise scrotum near ventral and base of Pnnis 3 x 2 c.m.
Rigor mortis and post mortem levedity present.
INTERNAL EXAMINA TION.
Tracheae ruptured and damaged. Neck vessels and testis traumatic. Right lung and left lung congested. Mild bruise on forhead. All other organs were intact.
DISP ATCH MA TTER T O CHEMICAL EXAMINER. i. Liver , spleen, kidney . ii. Stomach, small intestines with contents.
OPINION In my opinion deceased died due to stran gulation (asphyxia) and trauma to testis and neck vessels, which caused death. Opinion regarding sedation will be established after the chemical examiner report. All injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature.
TIME BETWEEN INJUR Y AND DEA TH Variable 1-2 or few minutes (5-15 minutes approximately)
TIME BETWEEN DEA TH AND POST MOR TEM 13-16 hours (approximately)
10. The Investigating Officer, PW-16 (Mumtaz Baig-ASI), examined the dead body and prepared Inquest Report (Ex.PS), he prepared application for post-mortem of the deceased and handed over it to CMO PIMS (Ex.PH), prepared Identification Memo of the deceased (Ex.PB), taken into possession the last worn clothes of the deceased through recovery memo (Ex.PT). On 16.10.2012, after receiving the post-mortem report (Ex.PG) from the MLO Dr. Farrukh Kamal, on the basis whereof FIR No.521 dated 16.10.2012 was registered under section 302, P.P.C. The Investigating Officer visited the place of occurrence made efforts for the arrest of the accused persons.
The family of the deceased was not found as they had proceeded to their native place for burial of the deceased, obtained specimen of internal contents of the deceased. Photographs (Ex.P7/1-6) of the deceased were taken into possession through recovery memo Ex.PU; prepared site sketch of the place of occurrence through draftsman PW- 9 (Amir Shahzad), recorded the statements of witnesses including the family members of the deceased, on his inspection of the place of occurrence, he also prepared un-scaled site plan (Ex.PV); arrested the co-accused Shazia Kousar on 23.10.2012 and thereafter , the appellant was arrested on 25.10.2012. The entry record of the appellant Sikandar Ali in Navel Complex (Ex.PD) along with his I.D. card (Ex.PD-1) were taken into possession through recovery memo Ex.PE. Statement of medical staff of Naval Hospital under section 161, Cr.P.C. was recorded. PW-9, Amir Shahzad, handed over to him site plan (Ex.PL/1-2); sent parcels to the Chemical Examiner Lahore. As per statement of PW-15, Muhammad Feroz SI, he arrested the co-accused Mst. Shazia Kousar after recording statement of her daughter PW-4 namely , Mst. Faiza Bibi. During investigation, she led the police and got recovered a pillow Ex.P4 and from inside therein, a mobile phone Ex.P5 and two SIMs Ex.P.6/1-2, were taken into possession through recovery-memo Ex.P F and during the investigations, she disclosed the fact that the recovered pillow was used for placing it on the mouth of the deceased while the appellant , Sikandar Ali, strangulated the deceased by means of recovered rope (Ex.P7). On 31.10.2012, statement of the co-accused, Shazia Kousar , was recorded under section 164, Cr.P.C. before the A.C. (I.A) Islamabad. On 03.11.2012, the appellant disclosed the commission of murder of the deceased and on his pointation, the crime weapon i.e. rope (Ex.P7) was got recovered and was taken into possession through recovery memo Ex. PM (after rectification Ex.PMM).
11. It is reflected from record that at the residence of the deceased i.e. House No.B-1/3, Street No.5, Sector E-8, is situated within the Navel Complex, Islama bad, where no one can enter inside the boundary of the society , without permission of the staff deputed therein. It transpires from statement of PW-4 (Mst. Faiza Bibi) that the appellant was having illicit relations with her mother , the co-accused (Shazia Kousar). The appellant often visited her mother and when this fact came into knowledge of the deceased on 16.09.2012, he expelled the appellant from his house and warned him with the wording that in case the appellant again entered his house, he will report the matter to the police and also threatened his wife (Mst. Shazia Kouser) that if she contacted the appellant, he would pronounce divorce to her. The above-said witness has further deposed that on 11.10.2012, the appellant came at their house and she was directed by her mother not to inform the matter to her father and the appellant was taken inside the room. The presence of the appellant inside the house of the deceased was also confirmed through the entry data (Ex.PD), issued by the Naval Police, Islamabad. It reveals that on 11.10.2012, the appellant entered into the Navel Complex through Bahria Gate at 22:20 hours. The illicit relations of the appellant with the co-accused Shazia Kauser was further strengthened by PW-6, Afzal Mehmood, who had deposed that the co-accused Shazia Kousar was working for the last six/seven years as an Attendant at Bharia College , Islamabad. She requested him to find a residence for the appellant, Sikandar Ali, and then he found out a residence for the accused, Sikandar Ali, in their neighbourhood. On the fateful day, in the early morning, at about 07:15 a.m., wife of the deceased, co- accused Shazia Kousar left the house for going to her job. On the way, at the same time, a colleague, of the deceased namely , Abdul Ghafoor (PW-5). who always used to take the deceased Asif from his house toward their job place, deposed that the accused Shazia asked him to go to the office alone because Asif (deceased) was not feeling well and would not be able to go to office that day, thereafter , PW-5 went to his duty alone. This fact also shows the mala fide on the part of the co-accused Shazia. On reporting the matter to the police by PW-1, the Investigating Officer prepared Inquest Report (Ex.PS). Column No.10 of the Inquest Report shows the signs of strangulation around the neck and some marks of injuries, bruises on the person of the deceased, which was confirmed by PW-8, Dr.Muhammad Farrukh Kamal, in his report (Ex.PG) and post-mortem report (Ex.PH).
Furthermore, the illicit relations between the co-accused and appellant are also verified through their mobile phone data (CDR/record). From the above stated circumstances and the evidence, it has been clearly proved that the appellant had illicit relations with the co-accused, Shazia Kousar , and he used to visit their house. It also revealed that on the last night of occurrence, PW-4 witnessed that the appellant visited their house and her mother took him inside the room. The confession of the appellant before the police was although not admissible in evidence, but the same led the police to discovery of facts and recovery of weapon of offence. On his pointation, the police recovered the crime weapon i.e. rope (Rassi) from a point, which was not known to the police.
12. In view of the above; it is proved that on 11.10.2012, the appellant remained at the house of the deceased with the co-accused Shazia. Although, the incident was unseen but the daughter of the co-accused witnessed that the appellant entered inside the room of their house along with the co-accused Shazia, therefore, liability shifted on the shoulder of both the accused persons that they are responsible for the commission of murder of the deceased (Asif), as such, prosecution story regardin g murder of deceased has been justified by PW-4, Mst. Faiza Bibi. So far as the delay in registration of the FIR is concerned, in this regard, it was confir med through the evidence that initially , an independent person namely , Zahoor Ahmed, PW1, having no relations with any of the party , on the directions of his officers reported the matter to the police, which was reduced into Rapt No.37 at Police Station Margallah, Islamabad and after conducting of post-mortem report and confirmation that the death of the deceased was unnatural then formal FIR was registered against unknown persons. The delay in recording of the FIR and delay in recording statement of PW-4, Mst. Faiza has been reasonably explained by the prosecution as PW-4, when came back from their native village/place after burying the deceased there, she got recorded her statement under section 161, Cr .P.C. and explained the real facts.
13. It is important to mention here that the above said PW-4, Faiza Bibi, is the real daughter of the deceased and of the co-accused (Mst. Shazia Kousar), and it is unimaginable that a daughter can level such type of heinous allegations against her mother . Statement of PW-4 (Mst. Faiza Bibi) in the facts and circumstances of the instant case cannot be said inimical or based upon mala fide.
The statements of all the prosecution witnesses stood truthful.
14. Record further reveals that statement of the co-accused Shazia Kousar was recorded under section 164, Cr.P.C. before the A.C. (IA), Islamabad. The learned trial Court made its levelled best to procure the attendance of the learned Assistant Commissioner for recording of his statement but he failed to appear before the Court, before, Reader of the Court has produced the confessional statement (Ex.PZ). The state ment under section 164, Cr.P.C. has not been taken as piece of evidence by the learned trial Court. Even after exclusion of the said statement, there are other corroborative pieces of evidence on record through which the prosecution established that the appellant was found present inside the house of the deceased. The Naval Complex Police of Islamabad handed over copy of CNIC of the appellant to the Investigating Officer, which, further confirmed the fact that the appellant gave information to the Naval Complex Police for going to the house of the deceased, otherwise, the naval police had no with the appellant to produce such evidence. The record of the Naval Complex shows only entrance date and time of the appellant, whereas, regarding exit time shows "not confirmed", reason behind was that the appellant without receiving back his copy of CNIC, left the Naval Complex. Recovery of pillow . which was used by the accused Shazia to place it on the mouth of the deceased, one mobile phone Nokia and two SIMs, at the instance of the co-accused Shazia, during her police custody strengthens the prosecution case. However , the defence has failed to rebut the evidence produced by the prosecution even the appellant failed to produce any evidence in his defence. The facts and circumstances of the case and evidence produced by the prosecution, has established that the prosecution succeeded to link the incident with the appellant.
15. The first and important blinking piece of evidence in this case is the motive. The motive for the occurrence was that the appellant was abused and expelled from the house by the deceased Asif. Wife of the deceased namely , Mst. Shazia Kauser was also threatened by the deceased that if she again contacted the appellant, the deceased will pronounce divorce to her. This fact was proved from the statement of PW-4. It is a settled law that capital punishment can be awarded on the basis of circumstantial evidence subject to the condition that it connect the accused persons with the commission of the offence and it appeals to logic and reasons then it is sufficient piece of evidence to connect the accused with the commission of offence. Circumstantial evidence is one of the mode to find out the guilt of the accused person. The principle of law, consistently laid down by the superior Courts is that different pieces of such evidence have to make one chain, where one end of it touches the dead body and the other to the neck of the convict. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorded in crimes entailing capital punishment. This principle is fully attracted to the facts and circumstances of the instant case. Reliance in this regard is placed upon the case reported as "Nasir Javaid and another v . The State" (2016 SCMR 1 144), wherein it has been held as under:- "This case, so to speak, hinges on circumstantial evidence. What tempts the Court to believe this type of evidence is the maxim that men may lie but circumstances can't. W e don't nor can we doubt and dispute its centuries old well tested wisdom. We rather use it as a touchstone for assessing and evaluating the evidentiary worth of the circumstantial evidence. It enables us to reason unknown from the known if the circumstances are reported fairly and faithfully . Deduction about the guilt of the accused could well be drawn from the circumstances as are well authenticated. But where the circumstances so reported are tinkered and tampered with, or contrived and conjured up, they cannot be accepted without careful and critical analysis. Circumstant ial evidence can form basis of conviction if it is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of this guilt. The case thus has to be analyzed and adjudged in this perspective."
In the case reported as "Sh. Muhammad Amjad v . The State " (PLD 2003 SC 704 ), it has been held as under:-- "According to the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime."
In the case of Hamid Mahmood and another v. The State (2013 SCMR 1314 ), it has been held by the Hon'ble Supreme Court of Pakistan that:-- "Similarly , the nature of the evidence produced at the trial is relevant primarily for the purpose of determining the guilt or innocence of the accused and not sentenced to be awarded. No rule exists that the sentence of death cannot be awarded in the absence of direct ocular evidence, if the guilt of the accused has been proved beyond reasonable doubt through circumstantial and forensic evidence."
16. The august Supreme Court in case titled 'Talib Hussain v. The State' 1995 SCMR 1538 , has observed and held that in cases where there is no direct evidence to show in what manner the offence had been committed, the Courts must examine the probabilities in the light of indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles secured found there, the motive for the crime and the other surrounding circumstances proved. Mere occurrence of circumstances unless based on proved facts is not enough to draw inference. The august Supreme Court has held that the coincidence should be un-designed and not manoeuvred or planted. Reliance is placed on 'Talib Hussain v. The State' 1995 SCMR 1538 . It has also been held by the august Supreme Court that capital punishment can be awarded if circumstantial evidence is strong enough to persuade the Court that the person charged with the offence has committed the same. The circumstantial evidence, however , must be so clear , cogent and convincing that the facts could not be accounted for or any other rational hypothesis could be arrived at other than the guilt of the accused. It has also been held that if the place of incident is a place where no witness was available and the accuse d had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature, which, prima facie, connects him with commission of the offence. Reliance is placed on 'Muhammad Latif v. The State' PLD 2008 SC 503, 'Akbar Ali v. The State', 2007 SCMR 486, 'Khurshid v. The State' , PLD 1996 SC 305, 'Khuda Bukhsh v. The State', 2004 SCMR 331 and Talib Hussain v. The State' , 1995 SCMR 1538 .
17. From all the above said facts and circumstances of the case. no material contradictions are found in the statements of the prosecution witness, es. After a careful examination of the evidence produced by the prosecution, it reveals that the witnesses have fully supported the prosecution case and the medical evidence has confirmed that the death of the deceased was not natural. The witnesses remained unbiased, consistent in material aspects of the case, they are reliable and nothing favourable could be extracted during the cross-examination in favour of the defence. For securing the ends of justice, minute and careful examination is required by the Court to carry conviction on a capital charge, in a case of circumstantial evidence and the prosecution has to establish its case beyond any reasonable doubts.
18. In view of the above, it is established that the prosecution has proved its case against the accused person through reliable and trust worthy evidence. Involvement of the appellant/ convict in the commission of the offence has been proved beyond any shadow of doubt and the learned trial Court has appreciated the prosecution evidence in its true perspective and correctly convicted the appellant to which no exception could be taken by this Court. Having scanned the entire prosecution evidence, I have entertained no manner of doubt in my mind that the prosecution has successfully proved the charge of homicidal death of Muhammad Asif at the hands of the appellant and his co-accused beyond shadow of reasonable doubt. All these facts and circumstances, rule out the possibility of fabrication and consultation prior to the registration of the crime report. The complainant and the other eye- witness remained firm and consistent on all material particulars of the incident including the role of the appellant, which is fully supported by the medical evidence.
19. The learned counsel for the appellant has failed to point out any illegality , irregularity , misreading, non-reading or any infirmity or defect in the impugned judgment passed by the learned trial Court, calling for interference by this Court. The convictions and sentences awarded to the appellant are therefore, upheld.
20. For the foregoing reasons, Criminal Appeal No. 40 of 2016 being devoid of merits, is hereby dismissed. In view of the findings in Criminal Appeal No.50 of 2016, Jail Appeal No. 179 of 2016 has become infructuous, the same is disposed of accordingly . As regards Criminal Revision (Suo Motu) No. 53 of 2015 is concerned, I have gone through the evidence recorded by the learned trial Court and do not see any reason to further proceed with this Criminal Revision, therefore, the same is accordingly disposed of.