SHAKEEL AHMAD, J. Syed Amjad Hussain aged about 38 years, Syed Zamin Hussain aged about 26 years and Syed Qaiser Hussain aged about 39 years sons of Syed Hussain Asghar all caste Syed residents of Shalawzan, Parachinar, Upper Kurram, District Kurram, were tried by the learned Additional Sessions Judge, Kurram under sections 302/311/109/34 PPC for jointly and in furtherance of their common intention, committing the murder of Syed Baqir Hussain s/o Syed Ali aged about 32 years and Nadia Bibi wife of Syed Amjad Hussain (appellant No.1) aged about 27/28 years. The learned trial Judge by his judgment dated 29th October 2022 found the appellants guilty, convicted under section 302 PPC and sentenced the said Syed Amjad Hussain, Syed Zamin Hussain and Syed Qaiser Hussain to imprisonment for life as Tazir. Benefit of section 382 B Cr.PC was extended to the appellants/convicts. The convicts have preferred the present appeal against their conviction and sentence.
2. The occurrence allegedly took place on 28th February 2021 at 18:35 hours (Isha vela) in the area of Village Shalawzan, 7/8 Kilometers away from the Police Station Upper Kurram. The matter was reported to the police station by Mushahid Ali (PW-8) SHO of Police Station Upper Kurram in shape of Murasila Ex.PW-8/1 on the basis of which, Crime No.47 dated 28.02.2021 Ex.PA, was recorded by Syed Aftab Haider PW-9 at 21:40 hours on the same day at the police station.
3. The prosecution story can best be narrated by reproducing the translation of the crime report Ex.PA, as under:- On the fateful day, the complainant Mushahid Ali PW-8 SHO of Police Station, Upper Kurram received an information that murder of the two deceased namely Syed Baqir Hussain and Mst.
Nadia Bibi have been committed. Pursuant to the said information, he came to DHQ Hospital, Parachinar, found the dead bodies of the said deceased there. The legal heirs of the deceased were not found in the hospital. On query, it was learnt that the deceased Mst. Nadia had illicit relations with Syed Baqir Hussain deceased for the last two years prior to the occurrence and both of them had shifted/fled away to Karachi, and were residing there. Due to intervention of the Jirga, they came back to Parachinar and in order to settle the dispute between the parties, the Jirga was making efforts. On the fateful day, the deceased Baqir Hussain came to the house of the appellants to take her back. In the meanwhile, Syed Amjad Hussain husband of Mst. Nadia Bibi (now deceased) at the behest and in consultation with his brothers namely Syed Zamin Hussain (appellant No.2) and Syed Qaiser Hussain (appellant No.3) committed his murder causing injuries in his face and on different parts of his body by means of firearms, near his house. Thereafter, the said Syed Amjad Hussain came to his house and fired at his wife Mst. Nadia Bibi with his gun, who succumbed to her injuries on the spot. The motive as set out in the crime report is the illicit relations of deceased Mst. Nadia Bibi with the deceased Syed Baqir Hussain, and it was alleged in the crime report that both the deceased were killed in the name of honour killing. Syed Haider Hussain PPI PW-1 prepared injury sheets, and inquest reports of both the deceased as Ex.PW-1/1, Ex.Pw-1/2, Ex.PW-1/3 and Ex.PW-1/4, respectively.
4. The prosecution in support of its case examined Syed Jamal Hussain PW-2, who identified dead body of Syed Baqir Hussain before the police and mortuary. Syed Muhammad Hadi PW-3 identified dead body of Mst. Nadia Bibi before the police and in the mortuary. Mujahid Hussain Constable was produced as PW-4, who is marginal witness of the recovery memos Ex.PW-4/1 and Ex.PW-4/2. Dr. Waqar Hussain conducted autopsy of the deceased Mst. Nadia Bibi and Syed Baqir Hussain, he was examined as PW-5. Postmortem report of the said deceased was exhibited in his statement as Ex.PW-5/1 and Ex.PW-5/2, respectively. Rehmat Ali SI PW-6 conducted investigation in the instant case. He disclosed that site plan Ex.PW-6/1 was prepared by him at the instance of complainant. He also disclosed the steps that have been taken towardS completion of investigation. The complainant PW-8 in his statement affirms the contents of crime report recorded in shape of murasila Ex.PW-8/1. Syed Aftab Haider PW-9 submitted complete challan against the convicts/appellants, after completion of investigation.
5. All the accused denied the allegations levelled against them and imputed their false involvement and pleaded innocence. However, they did not produce defence. The learned trial Judge relying upon the motive, recovery of dead body of deceased Mst. Nadia Bibi from the house of the appellants, blood and recovery of firearms empties from the spot and relationship of the appellants with each other and the medical testimony, convicted and sentenced them as stated above.
06. The learned counsel for the appellants Syed Abdul Fayaz, Advocate during his arguments pleaded that it is an unwitnessed crime. He pointed out loopholes and cracks in the prosecution case. According to him, the occurrence had not taken place in the manner and mode as described by the prosecution, which in his view, shakes the structure of the case built up by the prosecution.
He submitted that mere recovery of dead body of the deceased Mst. Nadia from the house jointly owned by the convicts as alleged by prosecution does not mean that murder of the said deceased was committed by her husband Syed Amjad Hussain. According to him, no evidence could be placed before the learned trial Court to show involvement of the appellant Syed Zamin Hussain and Syed Qaiser Hussain. He added that motive as alleged could not be proved. He further submitted that legal heirs of deceased have patched up the matter with the appellants and have got no objection on their acquittal. In his view, it would not thus be safe to rely on the prosecution evidence without independent corroboration, which is lacking in the present case and concluded his arguments by saying that prosecution has miserably failed to prove its case against the appellants beyond a ray of doubt and prayed for outright acquittal of the convicts.
07. The brother of the deceased Syed Baqir Hussain and uncle of Mst. Nadia Bibi put their appearance and stated that they do not oppose the acquittal of the convicts on the ground that matter has been patched up with them. They also submitted the special power of attorney on behalf of the other legal heirs of both the deceased in this respect, stating that they do not want to engage a counsel. To this effect, their statement was recorded and placed on record. However, instead of acquitting the accused/appellants on the basis of compromise, being a case of honour killing as alleged by the prosecution, we decided to hear the case on merits, after hearing the learned AAG representing the State.
8. Countering the arguments of the learned counsel for the appellants, the learned AAG argued that the prosecution case rests upon circumstantial evidence, recovery of dead body of wife of convict Syed Amjad Hussain from his house, blood stained earth and firearms empties from the scenes of crime and its positive FSL report showing that these empties were fired from one and the same crime weapon, which clearly suggests that it is none, but the accused Syed Amjad Hussain, who committed murder of his wife and her counterpart at the instigation of his brothers, for having developed illicit relations with her. He defended the impugned judgment and concluded his arguments praying to maintain conviction and sentence awarded to the convicts/appellants.
9. Due consideration was given to the rival contentions of the learned counsel for the parties and relevant record was examined with their able assistance.
10. In this case, we do notice that the entire prosecution case rests upon circumstantial evidence, therefore, utmost care and caution is required for reaching at a just and correct conclusion of the case. It is by now settled that in such like cases, every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused, but, if link in the chain is missing then being favourite child of law, its benefit must be extended to the accused. In this context, reference may be made to the cases reported as "Ch. Barkat Ali vs. Major Karam Elahi Zia and another" (1992 SCMR 1047), "Sarfaraz Khan vs. The State and 2 others" (1996 SCM R 188) and "Asadullah and another vs. The state and another" (1999 SCMR 1034).
11. Keeping in view the law laid down by the august Supreme Court of Pakistan in the above mentioned judgments, we proceed to discuss each part of the prosecution case. It is reflected from the record that the three appellants before us are brothers inter-alia. The initial report of the incident as incorporated in the crime report Ex.PA, was given by PW-8 Mushahid Ali SHO of Police Station, Upper Kurram, who deposed that on receipt of information of the incident, he came to DHQ Hospital, Parachinar, where he found the dead bodies of Syed Baqir Hussain and Mst. Nadia Bibi, however, he did not notice presence of the legal heirs of both the deceased in the hospital.
According to him, on query, it was disclosed to him that both the deceased had developed illicit relations with each other for the last two years and they had fled away from Parachinar to Karachi and were residing there, however, on the intervention of the members of the Jirga, they came back, and in this respect Jirga was being held between the parties, and on the day of incident, the deceased Syed Baqir Hussain had come to Shalawzan to take her back and in the meanwhile, the convict/appellant Syed Amjad Hussain, at the instigation and in consultation with his brothers namely Syed Zamin Hussain and Syed Qaiser Hussain, first, committed murder of Syed Baqir Hussain by means of firearms and thereafter, he fired at his wife Mst. Nadia Bibi with his gun inside the house, who succumbed to her injuries on the spot. The motive as set out in the crime report is illicit relations between the deceased, which resulted in honour killing. A careful examination of the deposition of PW-8 reveals that it is an unwitnessed crime, and complainant PW-8 himself is not the eye witness of the alleged crime. His entire report relating to the occurrence and deposition is based on hearsay. He has neither disclosed his source of information regarding the occurrence in his initial report Ex.PW-8/1 nor in his deposition before the learned trial Court. In his cross- examination, he admitted that he was neither present on the crime scene at the time of occurrence nor could recover crime weapon from the accused. He also admitted that he had no knowledge of the occurrence, but someone informed him about the incident. He also admitted that he himself is not the eye witness of the alleged crime. He further deposed that people of the locality had disclosed to him about illicit relations between both the deceased. In our opinion, the admissions of PW-8 noted hereinabove are favourable to the appellants. In our view, statement of PW-8, who is complainant of the instant case is totally based on hearsay, therefore, being hit by Article 71 of the Qanun-e-Shahadat Order, 1984, is inadmissible, which says that oral evidence must, in all cases whatever, be direct, that is to say: "(i) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
(ii) If it refers to a fact which could be heard it must be the evidence of a witness who says he heard it;
(iii) If it refers to a fact, which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
(iv) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
12. Applying the aforesaid criterion relating to admissibility of oral evidence, we observe that the complainant PW-8 has testified that he had received information from the people of the locality, without disclosing their names, or producing them as a witness in the witness box could be sufficient to hold that no direct evidence could be brought on record to substantiate the allegations as set forth by the prosecution. In this behalf, reference may be made to the case reported as "Bhugdomal Gangaram and others vs. The State of Guirat" (AIR 1983 SC 906) wherein, it was ruled that where a prosecution witness testifies that the he has received information from a specific person that the accused was the manager of the truck, involved in the crime, if the informant of the case has not been examined as a witness, the evidence of the prosecution witness is inadmissible, as observed and pointed out in the instant case. Thus, we hold that deposition of above mentioned witness (PW-8) does not link the appellants in any manner, with the commission of offence.
13. The above mentioned facts and circumstances of the case, have not only caused serious dents and cracks but created doubts in the prosecution case. It is by now well settled that suspicion, howsoever, strong cannot take place of conclusive proof, which is required for convicting and awarding sentence to an accused for a capital charge. In this context, reliance can well be placed on the judgment reported as "Muhammad Jamshed and another vs. The State and others" (2016 SCMR 1019) wherein, it was held that suspicion howsoever, grave or strong can never be a proper substitute for proofing beyond a ray of doubt required in a criminal case. Similar view had been taken by the Apex Court in the case reported as "Vijant Kumar and 4 others vs. State through Chief Ehtesab Commissioner, Islamabad & others" (PLD 2003 SC 56). It is also fundamental rule of Islam that doubt cannot be the basis of condemnation but provides a ground to pardon. It is mentioned by Ibn-i-Maja, the Holy Prophet (peace be upon him) having stated:- Similarly, in another Hadith, the Holy Prophet (peace be upon him) said:- It is, thus, clear that doubt in Islam also, however grave it may be, cannot take place of positive proof and if in a case a slightest doubt arises, it shall be resolved in favour of the person proceeded against.
14. Now adverting to the recovery of blood stained earth and one firearm 30 bore pistol from the house of the appellants where murder of Mst. Nadia Bibi was allegedly committed and recovery of blood stained earth and 5 empties of 7.62 bore from the place of deceased Syed Baqir Hussain, suffice it to say that the role of firing as per prosecution story was attributed only to appellant Syed Amjad Hussain. The rest of the convicts are charged for instigating their brother Syed Amjid Hussain for committing murder of both the deceased. However, the crime empties allegedly recovered from both the places of occurrence reflect that two different type of weapons were used in the alleged crime. It is illogical that the accused could use two different weapons for committing murder of the two deceased. He could have easily committed murder of both the deceased either from 7.62 bore rifle or from 30 bore pistol. The use of two different weapons is not appealable to a prudent mind. Moreso, the Investigating Officer could not procure the FSL report showing the matching report of the blood of the deceased with the blood recovered from the two spots. In the absence of such report, mere recovery of human blood from the alleged crime scene do not prove that these blood were of the deceased. Even otherwise, recovery of blood and firearm empties from the spot does not in any manner connect the accused with the crime. It is an admitted fact that the house in question where alleged murder of Mst. Nadia Bibi was committed was jointly owned by all three appellants. The accused Syed Amjad Hussain cannot be convicted and sentenced merely on the ground that he happened to be husband of the deceased Nadia Bibi or for the reason that he or his brothers did not lodge report of the incident in the police station, in the absence of reliable and cogent evidence, mere recovery of blood stained earth and one firearm empty of 30 bore pistol from the house of the appellants and recovery of blood stained and firearm empties near the house of the appellants where murder of Syed Baqir Hussain was allegedly committed itself is not sufficient to hold that it was accused who committed their murder.
In this behalf, reference may be made to the case reported as "Nasrullah alias Nasro vs. The State" (2017 SCMR 724) wherein, it was ruled that the accused could not be convicted merely on the basis of a presumption that since murder of wife had taken place in his house, therefore, he must be he and no one else who would have committed that murder. In this context, further reliance can be placed on the judgments reported as "Nazir Ahmad vs. The State" (2018 SCMR 787), "Muhammad Jamshaid and another vs. The State and others" (2016 SCMR 1019) and "Abdul Majeed vs. The State" (2011 SCMR 941). Even otherwise, recovery of blood and firearm empties from the place of vardat is concerned, it merely confirms the scene of crime, but does not prove guilt of the accused.
15. So far medical evidence is concerned, suffice it to say that it always reflects the cause of death, nature of weapon used and injuries sustained by the deceased/injured, but it does not identify the assailant and in our view, conviction cannot be based solely on medical evidence. In this context, reliance can be placed on the judgments reported as "Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53) and "Altaf Hussain vs. Fakhar Hussain and another" (2008 SCMR 1103).
16. No doubt, motive has been set out for appellants to have killed the deceased, but, in this case, the prosecution has miserably failed to prove the motive as alleged by it by producing evidence of the local people or members of the Jirga.
17. Lastly, we come to the abscondence of the appellants, and hold that mere abscondence is not sufficient by itself to remedy the defects in evidence led to show absconding accused's participation in the crime. In this behalf, reference may be made to the case reported as "Mesal and another vs. The Crown" (1971 SCMR 239) wherein, it was held as under: "--While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged, such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime."
18. In this behalf, further reliance can be placed on the judgments reported as "Mir Mat Khan alias Matokai vs. the State" (2002 PCrLJ 1914), "Abdul Karim vs. Pak State and another" (2004 MLD 1448) and "Siraj Din vs. Kala and another" (PLD 1964 SC 26).
19. The record does not reflect that the appellants Syed Zamin Hussain and Syed Qaiser Hussain either instigated or abetted the accused Syed Amjad Hussain to commit the alleged crime. Even otherwise, the evidence in respect of principal accused has been disbelieved by us, therefore, their conviction cannot be sustained merely on speculation or presumption.
20. After scrutinizing the case from all angles and noticing shortcomings in the prosecution case, we are of the view that findings of the learned trial Judge to the effect that the guilt has been brought home to the appellants beyond any reasonable doubt cannot be withheld. We, therefore, while extending the benefit of doubt to the appellants, allow their appeal, set aside their conviction and sentence and acquit them of the charges levelled against them. They shall be released from jail forthwith, if not required to be detained in any other case.
21. Above are the detailed reasons of our short order of even date.