' FAZAL KARIM, J.--- This will dispose of Murder Reference No,44 of 1988, Criminal Appeal No,121 of 1988 by the four brothers, Akhtar Hussain (aged 16 years), Muhammad Sarwar (aged 24 years), Muhammad Akbar (aged 18 years) and Muhammad Safdar (aged 15 years), appellants, as also Criminal Revision No,205 of 1988 by the complainant Muhammad Azam.
2. The appellants were tried for the murder of Mushtaq Ahmad aged 16/17 years, by the learned Sessions Judge, Gujrat. By his judgment dated 19-12-1987, he convicted the appellants under section 302 read with section 34 of the Pakistan Penal Code and sentenced Akhtar Hussain, appellant, to death and the other three appellants, to imprisonment for life. Each of the appellants was also sentenced to pay a fine of Rs,10,000 or to suffer 2 years' R.I. In default. Half of the fine if recovered was directed to be paid to the heirs of Mushtaq Ahmad deceased.
3. While Criminal Appeal No,121 of 1988 is against the conviction and sentence of the appellants, Muhammad Azam, complainant, prays by Criminal Revisional No,205 of 1988 that the amount of compensation in case of all the appellants should be adequately enhanced and the sentence of the appellants Muhammad Sarwar, Muhammad Akbar and Muhammad Safdar, be altered to death.
4. Mushtaq Ahmad deceased was a resident of village Bahuwal Tehsil Gujrat within the limits of Police Station Jalalpur Jattan. His father had died in the year 1966 and he and his mother Mst. Fazal Noor (P.W.17) were living together. Muhammad Azam, complainant (P.W.13) was a brother of Mst.
Fazal Noor, he was a resident of village Guliana Tchsil Kharian District Gujrat. At 4-40 p.m. On 28-11- 1984, Muhammad Azam, P.W., reported to Muhammad Anwar A.S.I. (P.W.18) at Police Station Jalalpur Jattan that at about 7-30 p.m. On 25-11-1984 he happened to be in the house of his sister, Mst. Fazal Noor, when Akhtar Hussain, appellant and Qamar-uz-Zaman (P.W.10) had taken the deceased Mushtaq Ahmad from his house. When Mushtaq Ahmad did not return after a considerable time, he and his sister Mst. Fazal Noor went out in his search. They met Zafar Ali and Muhammad Arif (P.W.15) who told them that they had seen the deceased Mushtaq Ahmad in the company of Akhtar Hussain, appellant and Qamar-uz-Zaman P.W. Going towards the north side of the village. When they did not find Mushtaq Ahmad anywhere, they met Akhtar Hussain and Qamar-uz-Zaman but they could not satisfy them.
5. In the end, Muhammad Azam, complainant, expressed the suspicion that Mushtaq Ahmad had been taken away by Akhtar Hussain and Qamar-uz-Zaman for sodomy and they had killed him.
6. It was the prosecution case that the dead body of Mushtaq Ahmad deceased had been dug out from the field of Subedar Nadir Khan in the early hours of 29-11-1984. Post-mortem examination of the dead body was performed by Dr. Syed Tallat Iqbal (P.W.3) at 9-00 a.m. On 2941-1984. The doctor found an incised wound 12 c.m. x 5 c.m. Horizontal in direction on front of neck above the ayoid bone. All major blood vessels on both sides of neck trachea and many ' muscles were also cut. The avoid bone was found intact. Rectal swabs were taken and sealed into a parcel. In the opinion of the doctor the injury was caused by sharp-edged weapon. It was ante- mortem and was sufficient to cause death. Death was due to hemorrhage and shock. Time between injury and death was few minutes and between death, and post-mortem examination 3 to 5 days. Exh.P.A. Is the carbon copy of the post-mortem examination report and Exh.PA./1 is sketch of injury.
7. It is noteworthy that the prosecution did not tender in evidence the Chemical Examiner's Report relating to the rectal swa bs. In fact at the trial a new story was introduced; this story is to be found in the evidence of Muhammad Iqbal, P.W.12, Allah Ditta, P.W.14 and Muhammad Inayat P.W.16 who were all witnesses to the alleged extra-judicial confession of Muhammad Akbar, Muhammad Sarwar and Akhtar Hussain, appellants. It is that the deceased had illicit relations with Mst. Nasra Bibi wife of Muhammad Sarwar, appellant, and the appellants had, therefore, joined together to do away with him.
8. In support of its case the prosecution examined 18 witnesses at the trial. From their evidence the prosecution story can be reconstructed as follows. At about 7-30 p.m. On 25-11-1984 the appellant Akhtar Hussain and Qamar-uzZaman, P.W.10, had taken away the deceased from his house. At that time Muhammad Azam (P.W.13) and Mst. Fazal Noor (P.W.17) were in the house. Muhammad Arif, P.W.15 had met them. Later Mst. Fazal Noor and Muhammad Azam, P.Ws., had met Muhammad Arif, P.W., and Zafar Ali (given up) in the street and on their inquiry, they had told them that they had seen the deceased in the company of Akhtar Hussain appellant, and Qamar-uz-Zaman, P.W.10. On the same night Javed Akhtar, P.W.4, and Muhammad Yunas (not produced at the trial) were returning from village Shahpur by their tractor when they had seen the appellants digging earth in the field of Subedar Nadir Khan. They were digging a ditch and on the inquiry of Muhammad Yunas they had told them that 'they were digging earth for plastering the roof'. After Muhammad Azam had reported the disappearance of Mushtaq Ahmad deceased to the police at 4-40 p.m. On 28-11- 1984, the appellant, Akhtar Hussain, had gone to Muhammad Inayat, P.W., and had some time before 5-00 a.m. On 29-11-1984 confessed his guilt saying that Mushtaq Ahmad deceased had illicit relations with the wife of Muhammad Sarwar, appellant; that he had called Mushtaq Ahmad from his house, and had taken him to his own house; that the appellants Muhammad Sarwar, Muhammad Akbar and Muhammad Safdar had held the deceased by his legs and arms and he had caused knife blows to the deceased and killed him in his house. He had further told Muhammad Inayat, P.W., that they had dug a pit in the field of Subedar Nadir Khan and buried the dead body of Mushtaq Ahmad deceased there. Muhammad Inayat, P.W., had produced Akhtar Hussain, appellant, before the A.S.I. Muhammad Anwar who had arrested him at about 6-00 a.m.
He had then led to the discovery of the dead body from that field which fact was deposed to by Javed Akhtar (P.W.4) and Muhammad Arif, P.W.15. Later, on the same day, Akhtar Hussain, appellant, had led to his residential room in the village and pointed out the place where the deceased was done to death. From that place Muhammad Anwar, A.S.I. (P.W.18), had taken the blood-stained earth in the presence of Muhammad Ashraf, P.W.B. On 8-12-1984 Akhtar Hussain, appellant, had again led to his house and produced blood-stained knife, P.8, which was taken into possession vide memo. Exh.P.F. He had also produced his bloodstained clothes, shirt P.1 and Shalwar P.2 which were taken into possession vide memo. Exh.P.C. The appellants, Muhammad Akbar and Muhammad Sarwar, had appeared before Muhammad Iqbal, P.W.12 and Allah Ditta, P.W.14 and confessed their guilt. Muhammad Akbar, Muhammad Sarwar and Muhammad Safdar, appellants, were produced before the police on 8-12-1984. Muhammad Akbar, appellant, had led to his house and produced the deceased's wrist watch P.11, which was taken into possession vide memo. Exh.P.K. It was witnessed by Mushtaq Hussain P.W.11. Muhammad Sarwar, appellant, had led to the field of one Rafique on 8-12-1984 and produced the slippers of the deceased, P.9/1-2 which recovery was also witnessed by Mushtaq Hussain, P.W.11. Muhammad Safdar, appellant, had also led to his house on the same day and produced the identity card of the deceased, P.10 which was taken into possession vide memo. Exh. P.J. And to that recovery also Mushtaq Hussain, P.W. 11, was a witness.
9. In their statements under section 342 of the Code of Criminal Procedure the appellants denied that they had any reason to kill Mushtaq Ahmad deceased; they also denied the alleged extrajudicial confession and the recovery of incriminating articles at their instance.
10. The appellants did not lead any evidence in their defence; they did not give evidence on oath as they were required to do under section 340(2) of the Code of Criminal Procedure.
11. The learned trial Judge believed the prosecution evidence; in his view all evidence on record 'is so well-knit that no lacuna was left in the chain of events starting from the time Mushtaq deceased left his house alongwith Akhtar accused, leading up to his murder and culminating in his burial in the field of Subedar Nadir'.
12. While learned counsel for the appellants argued that the prosecution evidence was not worthy of credit and it was wholly unsafe' to convict the appellants, learned counsel for the State and learned ocunsel for the complainant argued that the evidence led as a whole was sufficient to exclude the hypothesis of innocence of the appellants.
13. The question in the present case belongs to the department of circumstantial evidence.
Circumstantial evidence is evidence of facts from which, taken with all other evidence, a reasonable inference is a fact directly in issue. It works cumulatively, in geometrical progression, eliminating other possibilities. (Reg. v. Kilbourne 1973 A.C. 729 at 758). It is well-settled that when all the evidence is circumstantial, it is necessary that cumulatively its effect should be to exclude any reasonable hypothesis of the innocence of the accused..... In other words the chain of circumtances established against the accused person should raise a strong probability that he is guilty of the offence charged. Allah Ditta v. State PLD 1958 SC (Pak.) 290, 293 and 298.
14. It is obvious that the circumstances from which the prosecution invites the Court to draw the inference of guilt must be proved, and that when the evidence fails to satisfy the Court affirmatively of the existence of those circumstances, the question of drawing the inference of guilt is not reached. In that case, the Court must decline the invitation.
15. Now the evidence of the deceased having been seen in the evening of 25-11-1984 in the company of Akhtar Hussain, appellant, and Qamar-uz-Zaman, P.W., is by itself hardly a circumstance to hold the appellants guilty of the murder of the deceased. Admittedly Qamar-uz- Zaman, P.W., had remained associated with the investigation as a suspect and it was after he had been cleared by the police of his involvement that his statement under section 161 of the Cr.P.C.
Was recorded on 23-12-1984. Nobody had seen the appellant, Akhtar Hussain, returning to his house in the company of the deceased. The exact time of the murder is also not known. Javcd Akhtar, P.W., claimed to have seen the appellants digging a ditch in the land of Subedar Nadir Khan at about 10 or 11-00 p.m. He did not mention the date of that night, although he remembered the dates when he had heard of the disappearance of Mushtaq Ahmad deceased and when he had returned to his village from Sialkot. However, as a result of removing the earth a ditch had been made in the land of Subedar Nadir Khan but as a result of the burial of the deceased, the ditch must have been filled. This fact should have aroused suspicion immediately. In any case the very digging of earth would have been a cause of concern for Subedar Nadir Khan. Then the dead body was allegedly recovered from the land of Subedar Nadir Khan on 29-11-1984. Nadir Khan was, therefore, a very important witness but for unexplained reasons, he was not so much as associated with the investigation of the case. The police had arrived in the village in the evening of 28-11-1984.
It was not the prosecution case that the appellant Akhtar Hussain and his brothers had made themselves scarce. No reason appears why Akhtar Hussain, appellant should have gone to Inayat P.W., to make a clean breast of his guilt at that early hour of the day. In fact Muhammad Ashraf, P.W.8, who was a witness to the recovery of knife, P.8, from the appellant Akhtar Hussain said that the appellant, Akhtar Hussain, had been arrested on 25-11-1984. Learned counsel for the complainant invited us to treat this date 25-11-1984 in the evidence of Muhammad Ashraf, P.W. 8, as a clerical mistake. We decline the invitation for the date 25-11-1984 occurs not once but twice in his evidence. He said: 'One accused was arrested on 25-11-1984. I do not know about the arrest of the other accused when they were arrested. Akhtar Hussain accused was arrested on 25-11-1.984'.
The evidence that the appellant Akhtar Hussain had led to the discovery of the dead body also bristles with doubts. According to the A.S.I. Muhammad Anwar, Akhtar Hussain was arrested at about 6-00 a.m. On 29-11-1984. The sunrise time on 29-11-1984 was about 6-30 a.m.; this is in the evidence of Muhammad Arif, P.W.15. Muhammad Anwar A.S.I. Admitted in his cross-examination that he had dispatched the dead body from the field of Subedar Nadir Khan at about 11-30 or 12-00 mid-night and that he had 'remained busy in the proceedings connected with the dead body upto 11-30 mid-night'. Muhammad Arif, P.W., also admitted that the dead body was dug out in the light of torches and bulbs; according to him it had been taken to the house of the deceased at about 6-00 or 6-30 a.m. Muhammad Anwar, A.S.I. However said that the dead body had been despatched to the mortuary straight from the field of Subedar Nadir Khan. As to the discovery of the dead body there was only an oblique reference in the examination-in-chief of Javed Akhtar, P.W. What he said was:-- "On 29-11-1984 at 7-00 a.m. When the dead body was got recovered from the said place by Akhtar Hussain accused, then we came to know that the accused were on that night burying the dead body of Mushtaq Ahmad deceased."
' In cross-examination he admitted that he had appeared before the police on 29-11-1984 at 2/3 p.m. He did not remember 'whether Akhtar accused on that day or on any other day had shown the place where the deceased was buried'. Muhammad Arif, P.W., had seen the appellant Akhtar Hussain with the police at 5-00 a.m. He in his examination-in-chief said that on 29-11-1984 the dead body of Mushtaq Ahmad was recovered from the field of Subedar Nadir at the instance of Akhtar Hussain accused. In cross-examination he said:-- "The dead body of Mushtaq was not dug in my presence, and hence I do not know who dug the land for that purpose."
' He, however, claimed that he was present at the time of the recovery of the dead body.
Muhammad Anwar A.S.I. Said that it was Javed Akhtar, P.W. 4, who had dug out the dead body.
16. It is obvious that if Akhtar Hussain, appellant, had been taken into custody on 25-11-1984, then there could have been no extrajudicial confession by him before Muhammad Inayat, P.W. On 29-11- 1984. None other than Muhammad Aram, P.W.13, admitted that all the appellants had been arrested by the police on 30-11-1984 and taken to the police station. This admission gives a lie to the evidence of extra-judicial confession given by Muhammad Iqbal, P.W.12 and Allah Ditta P.W.14.
Similarly Mst. Fazal Noor, P.W., admitted that she had identified the articles of the deceased namely, slippers, identity car and wrist watch 3/4 days after the occurrence. These articles, it will be recalled, were alleged to have been recovered at the instance of Muhammad Akbar, Muhammad Sarwar and Muhammad Safdar, appellants, on 8-12-1984. Otherwise too it appears hard to believe that Muhammad Akbar and Muhammad Safdar had preserved the wrist watch and the identity card of the deceased and had kept them safely in their house. It makes demand upon one's sense of credulity that all the appellants had one after the other led to the same house on 8-121984, Akhtar Hussain for the recovery of knife, P.8, Muhammad Akbar for the recovery of the wrist watch, and Muhammad Safdar, appellant for the recovery of the identity card of the deceased. They had all the time in the world to destroy these articles or to take steps to prevent them from falling into the hands of the police. Still more difficult to believe is the fact that the appellant, Akhtar Hussain, had allowed the tell-tale blood in his residential room and on his knife to remain for so many days.
17. In the circumstances of the case we are left with the unfortunate impression that the evidence was fabricated. We hold, therefore, that the prosecution evidence as to the existence of circumstances detailed above, from which the prosecution wants us to draw the inference of guilt against the appellants is not worthy of belief and that the existence of those circumstances is not established.
18. In the result the appeal is accepted, the conviction and sentence of the appellants are set aside and they are acquitted. They shall be released forthwith unless required in any other case. Criminal Revision No,205 of 1988 is dismissed.
19. The death sentence of Akhtar Hussain, appellant, is not confirmed.