Appellants Ismail and Abdul Qadir were tried by Ist Additional Sessions Judge, Sukkur, for the offence under section 302/34, P.P.C. Who 'found them guilty for the said offence and vide judgment dated 22-4-1987 sentenced each of them to imprisonment for life and to pay a fine of Rs.5,000 or in default to suffer R.I. For six months more. The appellants were also directed to pay Rs.5,000 each as compensation, which if realised were to be paid to the legal heirs of deceased Abdul Aziz. The benefit of section 382-B, Cr. P.C. Was also extended to them. By this appeal filed under section 410, Cr. P.C. The appellants have challenged their conviction and sentence.
2. The brief facts according to F.I.R. Are that 'on 1-3-1983 at I about sunset time the appellants had taken deceased Abdul Aziz from his house on the pretext of collecting firewood from the jungle who was last seen with them by his brother complainant Arz Muhammad, P.Ws. Ghazi and Ali Murad.
Deceased Abdul Aziz did not return during night time, The appellants who were contacted by the above persons gave evasive replies. The search of deceased Abdul Aziz was continued for three days when ultimately his dead body was found entangled at Bambly regulator of Masu Wah by Muhammad Umar in charge of the said regulator and was identified by Arz Muhammad and others. On the same day, viz. 3-3-1983 at 10-30 a.m. Aziz Muhammad, lodged F.I.R. At Jarwar Police Post, which was subsequently incorporated in 154, Cr. P.C. Book maintained at Mirpur Mathelo Police Station. Rasool Bux A.S.I. Took up the investigation. He inspected the place where the dead body of Abdul Aziz was found and referred it to Medical Officer, Taluka Hospital, Mirpur Mathelo, for post- mortem examination and report. The Police Officer then examined Ali Murad, Ghazi, Allahdino and Muhammad Umar. On 12-3-1983 he arrested both the appellants who pointed out the places where deceased Abdul Aziz was murdered and from where his dead body was thrown in Masu Wah (canal). Appellant Abdul Qadir also produced the knife used in the commission of this offence, which was lying concealed in Khabbar bushes. The knife, which was found blood-stained was sealed on the spot in presence of Mashirs Muhammad Murad and Haji Abdullah. After completing the investigation the appellants were sent up.
3. The appellants pleaded not guilty when charge was read out to them. At the trial the prosecution has examined Arz Muhammad (P.W.1), Ghazi (P.W.2), Ali Murad (P.W.3), Allahdino (P.W.4), Muhammad Umar (P.W.5), Ilamdin P.C. (P.W.6), Ghulam Shabbir Tapedar (P.W.7), Ali Nawaz S.H.O.
(P.W.8), Muhammad Murad (P.W.9), Rasool Bux A.S.I. (P.W.10) and Dr. Shewak Ram (P.W.11).
4. The appellants met the charge with a denial alleging enmity with the prosecution witnesses.
They did not examine themselves on oath. They also led no defence.
5. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellants guilty and convicted them accordingly. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. Syed Gulzar Hussain Shah, learned counsel for the appellants and Mr. Syed Zawar Hussain Jafferi, learned A.A.-G. For the State. I have also gone through the record of this case carefully.
7. There is no eye-witness in this case, which solely rests upon circumstantial evidence consisting of following items:
(i) Deceased Abdul Aziz,, was seen lastly with the appellants by Arz Muhammad (P.W.I) Ghazi (P.W.2) and Ali Murad (P.W.3) and thereafter he was not seen alive.
(ii) Pointation of the place where deceased Abdul Aziz,, was murdered by both the appellants.
(i.e) Pointation of the place from where the dead body of Abdul Aziz was thrown in Masu Wah by the appellants.
(iv) Recovery of knife at the instance of appellant Abdul Qadir, which on examination by the Chemical Examiner was found to be stained with human blood.
(v) Motive.
8. Arz Muhamad (p.W.1) is brother of deceased Abdul Aziz who resided with him in the same house.
On the day of incident, viz. 1-3-1983 he was present in his house with deceased Abdul Aziz when at about sunset time both the appellants came to their house to call Abdul Aziz. P.Ws. Ghazi and Ali Murad who had come to the house of complainant Arz Muhammad with a proposal of marriage between Mst. Sakeena daughter of P.W. Ali Murad and Abdul Majeed, brother of complainant Arz Muhammad were also present in the house. All these persons responded to the call of appellants and they saw deceased Abdul Aziz going with the appellants to jungle for cutting firewood, who was not found alive thereafter.
9. Ghazi (P.W.2) and Ali Murad (P.W.3) have supported the version of complainant Arz Muhammad in this behalf. Arz Muhammad (P.W.1) has denied his relationship with Ghazi (P.W.2) and Ali Murad (P.W.3), who are brothers inter se. Ghazi (P.W.2) has, however, admitted in clear terms that his father Gaman and Salch, father of complainant Arz Muhammad are real brothers. Thus, both these witnesses are first cousins of complainant Arz Muhammad and are closely related to him. Ali Murad (P.W.3) who claimed to have seen deceased Abdul Aziz going with both the appellants has further belied complainant Arz Muhammad about the purpose of their visit by stating that they had come with a proposal of the marriage of his daughter Mst. Inayat with Akbar son of complainant Arz Muhammad and they were discussing about this proposal when they heard a call from outside and found the present appellants standing there, who asked deceased Abdul Aziz to go with them for fetching firewood. Abdul Aziz went with them and was not seen alive thereafter.
10. Arz Muhammad (P.W.1) has also made it clear that both Ghazi and Ali Murad had stayed in his house during night time and when deceased Abdul Aziz did not return all of them started searching for him. Ghazi (P.W.2) also supported Arz Muhammad on this point to some extent. He, however, admitted in his cross-examination as follows: "I, P.W. Ali Murad and complainant went to their respective houses when the accused took the deceased with them. I and P.W. Ali Murad went to our houses from the house of complainant late in the same night."
Ali Murad (P.W.3) also falsified Arz Muhammad in this behalf by stating that:-- "Accused Ismail and Abdul Oadir took away deceased Abdul Aziz with them. As it was sunset time I went to my house. P.W. Ghazi went to his house. The complainant went to his house. 1 and P.W.
Ghazi stayed in our house separately."
Thus all the above three witnesses have contradicted each other on material particulars.
11. The evidence of Ghazi (P.W.2) further makes it clear that when they had approached the elders of the appellants on the next morning, viz. 2-3-1983, they were informed by Pathan and Haji Sajoo Khan that deceased Abdul Aziz was murdered by the appellants. The conduct of Arz Muhammad (P.W.1) in keeping quiet till 3-3-1983 when the dead body of Abdul Aziz was actually recovered appears to be improbable. Such improbability must naturally be a factor to be taken into account in relation to the manner in which the incident had in fact taken place.
12. Quite admittedly the parties had strained relations. The F.I.R. (Exh.14/A) itself recites that deceased Abdul Aziz was murdered on account of dispute over the construction of a house. Arz Muhammad (P.W.1) also speaks about this dispute with the appellants. Bearing in mind the hostile relations between the parties, it does not appeal to reason that complainant Arz Muhammad (P.W.1) would allow his brother deceased Abdul Aziz to go with the appellants at that odd hour and that too for cutting firewood when according to Ghulam Shabbir, Tapedar (P.W.7) there is no jungle in the vicinity.
13. The recovery of the dead body of Abdul Aziz is again shrouded in mystery. Complainant Arz Muhammad (P.W.1), Ghazi (P.W.2) and Ali Murad (P.W.3) are unanimous on the point that they had asked Muhammad Umar Beldar to inform them if the dead body is found by him at any time.
According to their version Muhammad Umar Beldar, found the dead body and the informed Allahdino (P.W.4) about its recovery. Muhammad Umar (P.W.5) has, however, contradicted all these witnesses by stating as follows: "I know complainant Atz Muhammad Gabole. I did not know deceased Abdul Aziz. 1 was Bcldar about 1-1/2 years back at Maso Wah. I used to check water after offering Fajar (morning) prayer. I got up and went to check the regulator at about morning time and saw that one dead body was lying over the water and was entangled in the door of the regulator. I did not identify the dead body. I went to Police Station Jarwar and informed the police that the dead body of one unidentified person is lying in the water of Maso Wah at the door of regulator R.D. No.131. Then I came back to my duty. I did not go anywhere else to inform any body. Neither I had informed complainant Arz Muhammad nor P.W s. Ghazi Khan and Ali Murad at any place at any time about tile presence of the said unidentified dead body in the water. Police recorded my statement under section 161, Cr. P.C. I do not know any more in this case."
14. A conviction may be based on circumstantial evidence alone, but in order to bring home charge on the basis of circumstantial evidence alone it must be compatible with the guilt of the accused.
The following warning which Lord Normand gave in Lajzor Teper v. The Queen reported in PLD 1952 PC 119, may very well be kept in view in relying upon such evidence: "Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined if only because evidence of this kind may be fabricated in order to cast suspicion on another.
Joseph commanded the steward of his house, `put my cup, the silver cup, in the sack's mouth of the youngest', and when the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it. It is also necessary before drawing the inference of the accuser---s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."
15. The following observations made in Fazal Elahi alias Sajawal v. The Crown reported in PLD 1953 FC 214, may also be kept in view while dealing with circumstantial evidence:-- "In the ordinary case, this Court is content to accept findings of fact reached in the High Court. The present case, however, rests on nothing but circumstantial evidence i.e. Evidence relating directly to a number of minor facts, which facts the prosecution regarded as sufficient, in the total absence of direct evidence, to sustain an inference that Fazal Elahi murdered Jamal Din. It may be conceded that `a concurrence of well-- authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords'
(Paley). Nevertheless, where the direct evidence relates only to minor facts, and consequently the case rests wholly on circumstantial evidence, it is necessary to remember that `processes of inference and deduction are essentially involved, frequently of a delicate and perplexing character, liable to numerous causes of fallacy' (Wills on Circumstantial Evidence). This danger points to the need for caution in accepting proof regarding any one of the minor facts adduced, before it is held,, to be established for the purpose of drawing inferences there from. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, is apt to create a specious appearance which is calculated to lead to fallacious inference. Hence the , necessity of accepting, as the basis of inference, only such circumstances as are `well authenticated'. Another factor to be borne in mind in considering circumstantial evidence appears from he following dictum of Hewart, L.C.J. In the case of Taylor (1928) 21 Cr. App. 20: `It has been said that the evidence against the applicants is circumstan--tial; so it is, but circumstantial evidence is very often the best. It is (e.i)--dence of surrounding circumstances, which, by un-designed coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.'
For the purpose of the present discussion, the emphasis of this passage lies in the expression `un- designed coincidence'. Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."
16. In the case of Eradu and others v. The State of Hyderabad reported in PLD 1956 SC (India) 286, it was held: "It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused."
17. The case of Allah Ditta v. The State reported in PLD 1958 SC (Pak.) 290, is again relevant, wherein it was observed that where all the evidence is circumstantial it is necessary that cumulatively its effect should exclude any reasonable hypothesis of innocence of the accused.
18. The same view was reiterated by their Lordships of the Supreme Court in the case of Md. Nazir Hossain Sarkar and another v. The State reported in 1969 SCMR 388, in which it was held: "The evidence in the case was entirely circumstantial, and it is a fundamental rule in such cases that an accused person cannot be found guilty unless all reasonable hypotheses, which are consistent with his innocence, have been excluded."
19. The `last seen' evidence was again examined in the case of Gulab Khan and another v. The State reported in PLD 1971 Kar. 299 and it was observed: "This is an incriminating circumstance, upon which the prosecution relies to establish that the deceased was last seen alive in the company of appellant Ali Akbar. Village Kohri is about 3 miles away from Ratodero. The prosecution has not collected any evidence to show that the deceased after leaving the house was seen alone with appellant Ali Akbar either in Ratodero town or on the way leading to that village. The possibility of Ali Akbar having separated from the deceased soon after leaving the house has not been altogether excluded. According to the doctor, the deceased could have been killed at any time within 5 days. It was, therefore, possible that the deceased may not have been killed on the day he had accompanied appellant Ali Akbar. In this context, this piece of circumstantial evidence loses its weight and the possibility of his having been killed on any other day subsequent to that day is a plausible factor."
20. The observations which I have reproduced above are fully attracted to the facts of the present case, specially when Dr. Shewak Ram (P W.11) who had conducted the autopsy on the dead body of Abdul Aziz has opined without any reservation that it could be possible that the death of Abdul Aziz might have occurred on 28-2-1983. Such evidence of `last seen' was again found to be a weak type of evidence and the observations made by the Supreme Court in the case of Naqibullah and another v. The State reported in PLD 1978 SC 21 are self---explanatory.
21. The eases of Abu Bakar v. The State reported in PLD 1974 Kar. 393, Muhammad Afsar v. The State reported in PLD 1975 Azad J&K 12, Tehmurasp Rustamji Sethna v. The State reported in PLD 1976 Kar. 209 and Allah Ditta v. The State reported in 1980 P Cr. LJ 163, further lay down the principle enunciated in cases cited earlier. In the last cited case it was held that circumstances cannot lie but can mislead and a conviction for murder cannot be allowed unless the charge is proved by circumstantial evidence of exceptionally strong character. It was further observed that mere suspicion was not sufficient to carry conviction on such a charge.
22. I now address myself to the evidence of pointation of places where deceased Abdul Aziz was done to death and then thrown in the canal. Muhammad Murad (P.W.9) who has acted as Mashir and Rasool Bux A.S.I. (P.W.10) who has investigated the case have testified that the appellants while in custody had led them to both these spots. Muhammad Murad (P.W.9) has simply produced the Mashirnamas without giving details in this behalf. There is nothing in the evidence of both these witnesses to show that marks of violence or marks of blood were found at both these spots. It may be added that the contents of Mashirnamas are not to be taken as evidence unless the same are testified by the witnesses in their evidence before the Court. No reliance can, therefore, be placed on this piece of evidence.
23. Likewise no reliance can be placed on the evidence of recovery of a knife at the instance of appellant Abdul Qadir. The Mashirnama (Exh.t5/E) clearly shows that the pointation of the place where the knife was concealed was a joint venture. The Mashir of recovery is again a brother of Ghazi (P.W.2) who is first cousin of complainant Arz Muhammad. He is admittedly an interested witness and his evidence to this effect cannot be accepted on face value, specially when other independent Mashirs could have been easily procured. Even otherwise the recovery of knife which was found to be stained with human blood has got only corroborative value and is not by itself sufficient to record conviction against the appellant or any one of them on such a serious charge.
24. We arc now left with the evidence of motive. The case of Abu Bakar v The State reported in PLD 1974 Kar. 393, is an authority on the question of motive. At page 396 it was observed by a Division Bench of this Court that the evidence of motive is not evidence in the sense that its existence, in the absence of reliable evidence of the commission of the crime by the appellant, would not suffice to convict him nor would the absence of discoverable motive suffice to exonerate him if the other evidence was both sufficient and acceptable.
25. After a careful and anxious study of the evidence adduced by the prosecution I am satisfied that deceased Abdul Aziz had disappeared mysteriously and the entire story was coined after his dead body was found floating in Masu Wah. The appellants were obviously roped in this case due to suspicion. The suspicion, however strong it may be, cannot be taken as substitute of legal evidence. The case against the appellants is doubtful in nature. They are, therefore, extended benefit of doubt and acquitted accordingly. Appellant Ismail who is on bail is discharged from his bail bond. Appellant Abdul Qadir who is in custody be released forthwith, if not required in any other case.
26. In the result the judgment of the trial Court is set aside and the appeal is accepted.