MALIK SHAHZAD AHMAD KHAN, J:- This judgment shall decide Criminal Appeal No. 71704-J of 2019, filed by Ulfat Rasool appellant (through jail) against his conviction and sentence and Murder Reference No. 279 of 2019, sent by the learned trial Court for confirmation or otherwise of the Death sentence awarded to Ulfat Rasool (appellant). We propose to decide both these matters by this single judgment as these have arisen out of the same judgment dated 17.07.2019 passed by the learned Addl. Sessions Judge-I/Judge MCTC, Pakpattan.
2. The appellant, namely, Ulfat Rasool was tried in case FIR No. 335 dated 10.07.2018 registered at Police Station Sadar District Pakpattan offences under Sections 302/34 of PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 17.07.2019 has convicted and sentenced Ulfat Rasool appellant as under: - Under Section 302(b) PPC to 'Death' as Ta'zir for committing Qatl-i-Amd of Muhammad Shafique (deceased). He was also ordered to pay Rs.200,000/- (Rupees two hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr.P.C, and in default thereof, to further undergo simple imprisonment for two months.
3. Muhammad Rafique complainant (PW-2) lodged FIR while stating that he (complainant) was resident of Adda Mashiwal and a labourer by profession, whereas, his brother, namely, Muhammad Shafique (deceased) used to drive a carry van bearing registration No. 2001/VRS-12 on rent. On the intervening night of 09/10.07.2018 at about 02:00 a.m., (night), he (complainant) along with Umar Daraz (given up PW) and Muhammad Afzal (PW-3) were present at Adda Mashiwal on motorcycle in connection with election campaign. In the meanwhile, Muhammad Shafique (deceased) while driving the abovementioned carry van came at the aforementioned Adda, wherein four persons were sitting out of whom one was sitting on the front seat, whereas, remaining persons were sitting on the rear seats. The complainant asked Muhammad Shafique (deceased) about his destination who told that he was going to Pakpattan along with passengers. The complainant and the witnesses saw the passengers, who could be identified on confrontation. On 10.07.2018 at about 06:00 a.m., he (complainant) received information through phone that Muhammad Shafique (deceased) had been murdered by some unknown accused persons in the area of Chak No. 37/SB situated within the jurisdiction of Police Station Sadar District Pakpattan with sharp edged weapon and carry van was present at the spot. On receiving the information, the complainant and PWs reached at the spot and witnessed that carry van was present at the road side, whereas, in the nearby crop of maze, dead body of Muhammad Shafique (deceased) was lying and on different parts of his body, sharp edged injuries were present and neck of Muhammad Shafique (deceased) was cut from left side by a sharp-edged weapon. The complainant further stated that some unknown accused persons had committed the murder of Muhammad Shafique (deceased) due to some unknown reasons.
Initially FIR was lodged against unknown accused persons however, on 17.07.2018, Muhammad Rafique complainant (PW-2) made supplementary statement (Exh.PC) wherein he expressed his strong suspicion that Ulfat Rasool (appellant) had taken a house on rent near the residence of Muhammad Shafique (deceased) and had developed illicit relations with the wife of Muhammad Shafique (deceased), namely, Mst. Shakeela Bibi and the appellant wanted to marry with her (Mst.
Shakeela Bibi) and due to this grudge, Ulfat Rasool (appellant) committed the murder of Muhammad Shafique (deceased).
4. Ulfat Rasool (appellant) was initially arrested on 18.07.2018 and was sent to judicial lock up for identification parade however, learned Area Magistrate turned down the application for identification parade vide order dated 04.08.2018 and thereafter, the appellant was formally arrested in this case on 07.08.2018 by Muhammad Ashraf, Sub Inspector (PW-7). On 09.08.2018 the appellant made disclosure and led to the recovery of 'churra' (P-9) vide recovery memo (Exh.PK), as well as, his blood stained clothes worn at the time of occurrence i.e., pent (P-7), shirt (P-8) vide recovery memo (Exh.PL). After completion of investigation, report under Section 173 of Cr.P.C., was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 19.11.2018 to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced nine witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Exh.PA to Exh.PV/1).
6. The statement of Ulfat Rasool (appellant) under Section 342 of Cr.P.C., was recorded by the learned trial Court. The appellant refuted the allegations levelled against him and professed his innocence.
The appellant did not opt to make his statement on oath as envisaged under Section 340 (2)
Cr.P.C., however he produced documentary evidence in his defence in the shape of Exh.DA to Exh.DE.
The learned trial Court vide its judgment dated 17.07.2019 found Ulfat Rasool (appellant) guilty, convicted and sentenced him as mentioned and detailed above.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant party being in league with the local police; that it was an unseen occurrence and the prosecution case is based only on weak circumstantial evidence which carries no value in the eye of law; that no motive has been alleged in the contents of the FIR and the subsequent motive of the alleged illicit relation of the appellant with the wife of the deceased, introduced by the prosecution through supplementary statement of the complainant (Exh.PC) has also not been proved in this case; that the prosecution witnesses are chance witnesses; that nothing has been recovered from the appellant and the alleged recovery of weapon and blood stained clothes has been planted against the appellant; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charge.
8. On the other hand, it is contended by the learned Addl. Prosecutor General for the State assisted by learned counsel for the complainant that the prosecution has produced convincing and reliable circumstantial evidence against the appellant therefore, he was rightly convicted & sentenced by the learned trial Court; that motive of the prosecution has also been proved in this case through trustworthy evidence of the prosecution witnesses; that the recoveries of weapon of offence and blood stained clothes of the appellant, as well as, positive report of PFSA (Exh.PV/1) also corroborates the prosecution case against the appellant; that there is no substance in the appeal filed by the appellant therefore, the same may be dismissed and murder reference be answered in the affirmative.
9. Arguments heard. Record perused.
10. The detail of the prosecution case as set forth by the complainant in the FIR (Exh.PB/1) and in the supplementary statement/application of the complainant (Exh.PC), has already been given in para No.3 of this judgment therefore, there is no need to repeat the same.
11. Since there is no direct evidence and prosecution case hinges upon the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now 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 any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as 'Ch. Barkat Ali Vs. Major Karam Elahi Zia and another' (1992 SCMR 1047), 'Sarfraz Khan Vs. The State' (1996 SCMR 188), 'Asadullah and another Vs. The State' (PLJ 1999 SC 1018) & 'Altaf Hussain Vs. Fakhar Hussain and another' (2008 SCMR 1103).
Keeping in view the parameters, laid down in the above-mentioned judgments, we proceed to decide this case.
12. We have noted that the FIR (Exh.PB/1) was lodged against unknown accused with the claim that on the intervening night of 09/10.07.2018 at about 02:00 a.m., (night), the complainant along with PWs was present at Adda Mashiwal, in connection with the election campaign. In the meanwhile, brother of the complainant, namely, Muhammad Shafique (deceased) came there on a carry van.
Four unknown persons were also present in the said carry van and out of the said unknown persons, one was sitting on the front seat, whereas, three were sitting on the rear seats of the van.
On an inquiry by the complainant, Muhammad Shafique (deceased) told the complainant and PWs that he was going along with his passengers to Pakpattan and thereafter, he did not return rather his dead body was recovered on the next morning while lying in the fields of Chak No. 37/SB situated within the jurisdiction of Police Station Sadar District Pakpattan. As mentioned earlier, there is no eye witness of the occurrence. No accused was named in the FIR. No features of the unknown accused persons were mentioned in the contents of the FIR. No identification parade of the appellant or any other co-accused has been held in this case. The appellant has been implicated in this case through supplementary statement of the complainant dated 17.07.2018 (Exh.PC) which was recorded after seven days from the date of registration of the FIR. In the said supplementary statement, the complainant expressed his strong suspicion that as Ulfat Rasool (appellant) had taken a house on rent near the residence of Muhammad Shafique (deceased) and developed illicit relations with the wife of the deceased, namely, Mst. Shakeela Bibi therefore, he (appellant) must have committed the murder of Muhammad Shafique (deceased). No source of information whatsoever was mentioned in the above-referred supplementary statement of the complainant (Exh.PC) that as to how the complainant came to know that the occurrence of this case was committed by the appellant and who had imparted the abovementioned information to him. His statement in this respect is completely silent.
13. The prosecution also produced last seen evidence through Abdul Jabbar (PW-4) apart from Muhammad Rafique complainant (PW-2) and Muhammad Afzal (PW-3) who were also witnesses of last seen evidence of this case. As mentioned earlier, no accused was nominated by Muhammad Rafique complainant (PW-2) or Muhammad Afzal (PW-3) in their first statements recorded by the police however, Abdul Jabbar (PW-4) had nominated the appellant in his statement recorded by the police. It is further noteworthy that name of Abdul Jabbar (PW-4) was not mentioned in the contents of the FIR. Likewise, name of Abdul Jabbar (PW-4) was also not mentioned in the supplementary statement of the complainant (Exh.PC) recorded on 17.07.2018 though Abdul Jabbar (PW-4) had stated that he has also made statement before the police on 17.07.2018. We have further noted that the occurrence of this case took place in the fields of Chak No. 37/S.B. Muhammad Rafique complainant (PW-2) and Muhammad Afzal (PW-3) have stated that they had seen the deceased alive in the company of the appellant at Adda Mashiwal, whereas, Abdul Jabbar (PW-4) stated that he had lastly seen the deceased alive in the company of the appellant near the Dera of one Ch. Nazeer Ahmad Butt. All the abovementioned witnesses of last seen evidence are residents of Chak No. 4/WB Mashiwal District Vehari. It is further evident from the statement made during cross-examination of Abdul Jabbar (PW-4) that the Dera of abovementioned Ch. Nazeer Ahmad Butt was at a distance of 17-kilometers from Adda Machiwal and his (PW-4's) residence was situated at a distance of 21-Kilometers from the said Dera and as such, all the abovementioned witnesses of last seen evidence, who were residents of Chak No. 4/W.B, are chance witnesses. Muhammad Rafique complainant (PW2) and Muhammad Afzal (PW-3) stated that they were present on the night of occurrence at Adda Mashiwal in connection with the election campaign but they did not claim that they were themselves or Muhammad Shafique (deceased) was contesting the election. They have not named the person in their examinations-inchief for whom they were busy in the election campaign however, Muhammad Rafique complainant (PW-2) stated during his cross-examination that they were busy in the election campaign of one 'Bhatti Sahab' but except mentioning the caste of the candidate, he has not mentioned the name of the said candidate or his address. Said candidate was neither produced during the investigation nor during the trial before the learned trial Court to justify the presence of abovementioned witnesses at the spot situated in a different village, at the odd hours of night. We are therefore, of the view that last seen evidence brought on record in this case through Muhammad Rafique complainant (PW-2), Muhammad Afzal (PW-3) and Abdul Jabbar (PW-4) is not worthy of reliance.
14. According to the prosecution case, motive behind the occurrence was that Ulfat Rasool appellant had taken a house on rent near the house of Muhammad Shafique (deceased) and developed illicit relation with the wife of the deceased, namely, Mst. Shakeela Bibi and as the appellant wanted to marry with the wife of the deceased therefore, he committed his murder.
In this respect we have noted that no motive whatsoever was alleged in the FIR. Neither Mst.
Shakeela Bibi (wife of the deceased) was involved as an accused nor she was cited as a witness in this case. Abovementioned motive was not alleged in the FIR and the same has been introduced for the first time through supplementary statement of the complainant dated 17.07.2018 i.e., with the delay of seven days from the occurrence. Muhammad Rafique complainant (PW-2) has stated during his cross-examination that no one had ever told him prior to the occurrence regarding the illicit relationship/love affairs between the appellant and Mst. Shakeela Bibi. Relevant part of his statement in this respect reads as under:- "No one known about the alleged relation/love affair in between accused and Shakeela Bibi wife of deceased prior to the occurrence. Shakeela Bibi was married with deceased 14/15 years prior to the occurrence and she is the mother of three children. She might be aged 30/35 years. It is correct that she is elder about 20 years from the accused. I did not listen any rumour regarding the bad character of Shakeela Bibi prior to the present occurrence. It is incorrect that I concocted another false story regarding the bad character of the Shakeela Bibi in order to create a motive of this occurrence. I did not produce any witness from Adda Machi-wal and any other place in order to verification of my allegation that accused got a house on rent at Adda Machi-wal."
No witness has been produced in the prosecution evidence who had ever seen the appellant and Mst. Shakeela Bibi in some objectionable condition. It is true that some photographs allegedly recovered from the mobile phone of Mst. Shakeela Bibi have been produced in the prosecution evidence as (Exh.PM to Exh.PO/6) but there is no forensic report regarding the genuineness of the abovementioned photographs. The Hon'ble Supreme Court of Pakistan in the case of 'Ishtiaq Ahmed Mirza and 2 others Vs Federation of Pakistan and others' (PLD 2019 Supreme Court 675), has observed that no audio tape or video could be relied upon by a Court until the same was proved to be genuine and not tampered with or doctored. It was also observed that a person recording the conversation or event had to be produced in evidence and he must produce the audio tape or video himself and safe custody of the audio tape or video, after its preparation till production before the Court, must also be proved. It was further observed that with the advancement of science and technology, it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not and such examination, audit or test can also reasonably establish if such audio tape or video has been edited, doctored or tampered with or not. It was further observed in para No.7 of the abovementioned judgment as under:- "The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. It must never be lost sight of that the standard of proof required in a criminal case is beyond reasonable doubt and any realistic doubt about an audio tape or video not being genuine may destroy its credibility and reliability."
On the same analogy, if there is no report of PFSA qua genuineness of abovementioned pictures then credibility and reliability of the said pictures produced as (Exh.PM to Exh.PO/6) being genuine, is destroyed. Even mobile phone of Mst. Shakeela Bibi through which the abovementioned photographs were taken and recovered, was not taken into possession by the police vide any recovery memo. Under the circumstances, motive, introduced by the complainant through his supplementary statement (Exh.PC) has not been proved in this case.
15. Insofar as the recovery of blood stained clothes of the appellant, as well as, blood stained 'churra' (P-9) vide recovery memos (Exh.PL) & (Exh.PK) respectively are concerned, in this respect we have noted that the blood stained clothes of the appellant, as well as, blood stained 'churra' (P- 9) were recovered from the fields of one Haji Imam situated in Square No. 1 Killa No. 25 of Chak No. 37/SB. It is further noteworthy from the perusal of the site plan of the place of recovery of dead body of Muhammad Shafique (deceased) (Exh.PP) that even the dead body was also recovered from the same place i.e., fields of Haji Imam bearing Square No. 1 Killa No. 25 of Chak No. 37/SB.
Dead body was recovered in this case on 10.07.2018 but at the time of recovery of dead body and preparation of inquest report (Exh.PS), presence of any 'churra' or clothes of the appellant near the dead body of the deceased, in the abovementioned field, was not mentioned. We have further noted that the occurrence in this case took place on 10.07.2018 and the blood stained clothes of the appellant and blood stained 'churra' were recovered on 09.08.2018 i.e., after one month from the occurrence. It is by now well settled that blood disintegrates during the abovementioned period, as observed in the case of 'Muhammad Jamil Vs Muhammad Akram and others' (2009 SCMR 120).
It is further noteworthy that buckle swabs of the appellant were never sent to the office of PFSA for matching of DNA profile of the appellant with the abovementioned clothes or with the handle of 'churra' (P-9) therefore, there is no report regarding the matching of DNA profile of the clothes i.e., pent (P-7) and shirt (P-8) and swa bs taken from the handle of 'churra' (P-9) with the DNA profile of the appellant. We are therefore, of the view that it is not safe to rely upon the abovementioned pieces of prosecution evidence.
16. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In the case of "Tariq Pervez Vs The State" (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- "5... The concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram Vs The State" (2009 SCMR 230), at page 236, observed as under:- "13... It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
17. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No. 71704-J of 2019 filed by Ulfat Rasool appellant, set aside his conviction and sentence recorded by the learned trial Court and acquit him of the charge by extending him the benefit of doubt.
Resultantly, Murder Reference No. 279 of 2019 is answered in the negative. The appellant Ulfat Rasool is in custody, he be released from the jail forthwith if not required to be detained in any other case.