' Both the above captioned appeals have been filed against the judgment of Additional District Criminal Court, Bhimber, dated 8-2-1995, whereby the sentence of life imprisonment alongwith the sentence of Diyyat amounting to Rs,20,000 was awarded to the appellant Muhammad Younas.
Through his appeal, the appellant Muhammad Younas has assailed the judgment of the Additional District Criminal Court, Bhimber, whereas through other appeal, Usman Khalid complainant wants the enhancement of the sentence. As both the appeals pertain to one case and against the same judgment, therefore, both shall be disposed of through this single judgment.
2. The succinct facts forming the background of the instant appeals are that initially a case under section 364, A.P.C. Was registered against the appellant. The prosecution case as unfolded in the F.I.R. Is that on December 13, 1985 at 3 p.m. Muhammad Akhtar brother of complainant left for Jandala Bazar. He boarded on Truck No,DNA-3129. Zafar was driving the truck. The truck came across Bus No,AJK-3790, which was coming from Samahni. Muhammad Younas was travelling in the bus. The truck stopped for giving the way to the bus. Muhammad Younas called Muhammad Akhter and requested him to join him and travel alongwith him in the bus. Muhammad Akhter accepted the request of Muhammad Younas. He also boarded on the bus. They went to Poona, where they took their meal in the Friends Hotel. The meal was served by Fazal Hussain who later on informed the complainant about serving of the meals. Muhammad Younas came back to his house, whereas Muhammad Akhtar disappeared. He was searched, but his whereabouts could not be traced. A second report was made on December 31, 1985, wherein the circumstances listed in the previous application were repeated and it was further added that Muhammad Younas is present at his home since last night. He is avoiding to disclose the whereabouts of Muhammad Akhter. His activities are suspicious, as such the complainant apprehended the foul play of murder of his brother by Muhammad Younas. On the second application, the accused was arrested on the same day. The dead body was recovered at the instance of appellant Muhammad Younas.
3. The police after concluding the investigation, forwarded the appellant to District Criminal Court, Mirpur for facing the trial under section 302, A.P.C. During the trial, Additional District Criminal Court, Bhimber, was constituted and the case was transferred to Additional District Criminal Court, Bhimber. The Additional District Criminal Court, Bhimber, after concluding the trial found the appellant guilty and while diverting towards section 3 of the Islami Tazzerati Qwanin Nafiz Act, 1974, awarded him the sentence of life imprisonment alongwith the sentence of Diyyat amounting to Rs,20,000. Feeling aggrieved from the judgment of the Additional District Criminal Court, Bhimber, both the appellants Muhammad Younas and Usman Khalid filed the instant appeals.
4. The learned counsel for the appellant, Muhammad Younas, Ch. All Muhammad, argued that the entire case of the prosecution is based on meagre, scant and desultory circumstantial evidence.
From the circumstantial evidence no case is proved against the appellant Muhammad Younas. He further maintained that no person of locality from where the dead body was recovered, was cited as a witness. He further maintained that in the inquest report it is stated that the dead body was not identifiable. It was next contended by the learned counsel for the appellant, that according to the version of the prosecution, the dead body was recovered at the instance of the accused- appellant Muhammad Younas in the presence of Muhammad Reaz, Arshad Khan, and Muhammad Sarwar. While there is no concordance among these witnesses. He submitted that according to the Usman Khalid P.W.1, he identified the dead body from hairs. He also stated that the face was identifiable. Thelace was containing lot of flesh and dead body was identified from the face. The dead body was also containing heart, lungs, while according to the doctor, the dead body was not identifiable. He further maintained that Raja Sarwar categorically stated that the dead body was not recovered at the instance of the accused-appellant. It was next contended by the learned counsel for the appellant that there are contradictions among the aforesaid four witnesses. These contradictions reveal that the dead body was not recovered at the instance of the appellant Muhammad Younas in the presence of these witnesses. It was next maintained by the learned counsel for the appellant that motive pleaded by the prosecution is, that the deceased developed the illicit relations with Najima Parveen, who was relative of the appellant, so he committed the murder. The prosecution has miserably failed to prove the motive. There is no iota of evidence regarding the motive. It was also maintained by the learned counsel for the appellant, that according to Muhammad Sarwar, the clothes, shirt and Bunian of the deceased were lying near the skeleton and apart from this a Dopatta was also recovered from the place of occurrence, which creates a doubt that some woman was also there. It cast a serious doubt on the story put forward by the prosecution. He further maintained that the presence of Dopatta reveals that the occurrence did not take place in the manner as alleged by the prosecution.
5. While controverting the arguments of the learned counsel for the appellant, Ch. Lal Hussain, the learned counsel for the complainant contended that appellant Muhammad Younas committed a macabre slay of a young man. This is not an ordinary murder. The dead body was recovered at the instance of appellant which is a strong incriminating piece of evidence against the appellant. He further maintained that there is complete unison among Muhammad Sarwar, Usman Khalid, Muhammad Reaz and Arshad. It was next maintained by the learned counsel for the complainant that the alleged weapon of the offence (knife) was also recovered at the instance of the accused- appellant. It was also contended by the learned counsel that the appellant-accused was lastly seen with the deceased and both the appellant and the deceased took the meal at the hotel of Fazal Hussain, so all the circumstances are against the appellant. Therefore, the sentence may be enhanced. The normal penalty is death sentence. There was no justification for awarding the lesser sentence.
6. I have heard the learned counsel for the parties and given my passionate thoughts to the respective arguments advanced by the learned counsel for the parties.
7. The case of the prosecution against the appellant Muhammad Younas is based on circumstantial evidence. The circumstantial evidence lead against the accused-appellant is:--
(1) That the dead body was recovered at the instance of the accused in the presence of P.W.1 to P.W.4;
(2) The motive alleged is that the deceased developed illicit relations with Mst. Najima Parveen, who was relatives of the accused-appellant;
(3) That the appellant was lastly seen with the deceased;
(4) He travelled in a bus with the deceased and went to a hotel and took meal in the hotel with the deceased Muhammad Akhtar;
(5) The weapon of offence was recovered at the instance of the accused-appellant.
8. There is no direct evidence against the appellant, but as stated above the case against the appellant is based on the aforesaid sets of circumstantial evidence. No doubt that the conviction can be made on the basis of circumstantial evidence, in the absence of direct evidence. The conviction can only be made on the basis of circumstantial evidence, if it excludes all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible with that of the innocence of accused. It should be incapable of any explanation of any other reasonable hypothesis than that of guilt of accused. For proving a case through circumstantial evidence following four essentials are required:--
(1) Circumstances from which conclusion is to be drawn should be fully established;
(2) All facts should be consistent with hypothesis;
(3) Circumstances should be of a conclusive nature;
(4) Circumstances should lead to moral certainty and actually exclude every hypothesis but one proposed to be proved.
9. Rule as to quality of circumstantial evidence which can be sufficient for conviction is that facts proved must be incompatible with innocence of accused and incapable of explanation upon any reasonable hypothesis than that of guilty. Since failure of one link breaks chain, every link in circumstantial evidence must be proved, if any link is not proved then the conviction cannot be maintained because it is the basic duty of the prosecution to prove all the links of chain of circumstantial evidence. Circumstantial evidence must be of such a nature that it should lead to one possible inference leading to the guilt of the accused. Failure of the one link would destroy whole links of, circumstantial evidence. This view finds support from NLR 1983 (Cr1.) 686 (sic).
10. Now the question emerges, whether in the instant case, the prosecution has proved all the links of chain as required in the case of circumstantial evidence? In this case, the version of the prosecution is that the dead body of the deceased was recovered at the instance of the accused in the presence of P.W.1, P.W.2, P.W.3 and P.W.4. Now the question arises whether the prosecution has proved it beyond any reasonable doubt. It is notable that the case against the appellant Muhammad Younas was registered on 13-12-1985, at 8 o'clock in the morning, when the second application was moved by Usman Khalid complainant. After the registration of the case, the appellant accused was arrested on the same day. According to the prosecution version, the skeleton was recovered on the same day at the instance of the appellant Muhammad Younas. A box of the wood was got prepared from some carpenter and the doctor conducted the post- mortem on the same day at 3 p.m. It is quite astonishing that at 8 a.m. The case was registered against the appellant and after the registration of the case he was arrested by the police. He pointed out the dead body. The dead body was recovered and box of wood was also got prepared and the dead body was brought before the doctor for the post-mortem at 3 p.m. On the same day in the said box. It seems that when the accused was arrested he without any interrogation immediately pointed out the dead body and the carpenter was already ready for preparation of the box. The wood was already there. This clearly cast a doubt on the version adopted by the prosecution. It was impossible that the moment when accused was arrested, he pointed out the dead body and the wood was ready for preparation of the wood box and the carpenter was also present there for preparation of the wood box. After the arrest of the accused some time would have been spent by the police for interrogation from the accused. After the recovery of the dead body some time would have been consumed in contracting the carpenter for preparation of wood box. The carpenter should have also consumed some time for the preparation of the box. This fact creates a doubt on the version adopted by the prosecution.
11. Now the next question arises, whether the dead body was recovered at the instance of the accused in the presence of aforesaid four witnesses. They saw the dead body lying at the place of occurrence. According to P.W.1 Usma n Khalid, there were hair on the head of the skeleton. He identified the dead body from the hair. He further stated that the face was also identifiable and most of the skin was present on the face. On some places there was no skin. He also stated, it is wrong that the dead body of Muhammad Akhtar was not identifiable from the face. The dead body was also containing the heart and lungs. While according to the inquest reports, column No,9, the face was not capable of identification. According to the inquest report there was no sign of identification as the dead body was in the shape of skeleton. According to doctor Qurban Hussain, who conducted the post-mortem, there were no hair on the head. The face was also in the shape of bone. The dead body could not be identified from the face. According to Muhammad Reaz P.W.2, hair were also present at the time of the recovery of the dead body. The dead body was containing the hair on the head. The face was containing some skin on the cheeks. According to P.W.3, Muhammad Arshad there was some skin on the one cheek of the face. There was no other skin on the face. According to Muhammad Sarwar P.W.4, there was skin on the eyes and on the back side of the head of the dead body and the dead body was identified from the teeth. Now according to the doctor and the Police Officer who prepared the inquest report, the face of the dead body was not containing any skin and was not capable of identification. While according to the complainant Usman Khalid, the dead body could be identified from the face and there was a lot of skin on the face, while according to Muhammad Reaz, the dead body was containing the hair on the head, while according to the version of the doctor there were no hair on the head of the dead body.
According to Usman Khalid, the face was containing the skin and according to the version of Muhammad Arshad there was some skin on the one cheek, while according to Muhammad Reaz there was skin on the both of the cheeks, while Muhammad Sarwar P.W.4, stated that there was a skin on the eyes and on the back side of the dead body. These contradictions among the aforesaid four witnesses in whose presence, the dead body was alleged to have been recovered at the instance of the accused Muhammad Younas, leads to the conclusion that they did not see the dead body at the place of occurrence, nor the dead body was recovered in their presence. If they would have been present at the time of the recovery of the dead body, then there would have not been such contradictions among the four witnesses, Doctor and Investigating Officer, who prepared the inquest report. These contradictions create a doubt on the presence of these witnesses at the place of occurrence at the time of recovery of the dead body.
12. According to Abrar Haider, Sub-Inspector P.W.19, at the time of recovery of the dead body, Ch. Abdullah Chairman, Ch. Muhammad Hussain Member, Sofi Mahmood and Muhammad Zaman were also present there. While according to Arshad Ahmed, these persons were not present there and according to Muhammad Reaz P.W.2, these persons were not present there. But they came after the recovery of the dead body. While Usman Khalid stated that Ch. Muhammad Abdullah Chairman, Ch. Muhammad Hussain, Sofi Mahmood and Muhammad Zaman did not come on the place where the dead body was lying. He also stated that the police did not remove the skeleton from the place in their presence. They were on the distance and not near the dead body. As stated above that the Investigating Officer accepted the presence of Ch. Muhammad Abdullah, Chairman, Ch. Muhammad Hussain, Sofi Mahmood and Muhammad Zaman, at the time of the recovery of the dead body, while the prosecution witness denied the presence of these witnesses at the time of recovery of the dead body. There is no unison among the witnesses and these contradictions among the witnesses leads to an inference that the dead body was not recovered at the instance of the accused-appellant in the presence of aforesaid witnesses as alleged by the prosecution.
13. It is pertinent to note that Abrar Haider Sub-Inspector clearly admitted the presence of Ch. Muhammad Abdullah, Chairman, Ch. Muhammad Hussain, Sofi Mahmood and Muhammad Zaman, B.D. Member at the time of recovery of the dead body. These persons belong to a different tribe. Neither they belong to the tribe of accused-appellant nor to the complainant, they were independent witnesses. When the independent witnesses were available at the time of recovery of the dead body as stated by the S.H.O. Then why they have not been cited as witnesses of recovery of the dead body. Why the four persons of one and the same tribe to which the complainant belongs have been cited as witnesses of the recovery of the dead body. No doubt that if the other witnesses would have not been available then the evidence of the aforesaid four witnesses would have been admissible, but when independent and respectable persons of the locality were also present at the time of the recovery of the dead body, then why they have not been cited as witnesses of the recovery. It also cast a doubt on the story put forwarded by the prosecution, that the dead body was recovered at the instance of the accused-appellant in the presence of the witnesses. It is also notable that Raja Muhammad Sarwar P.W.4, appeared before the Court and in the cross-examination he deposed "it is wrong that the dead body was recovered at the instance of Muhammad Younas". Now when the P.W.4, has stated that the dead body was not recovered at the instance of Muhammad Younas. Then there remains hardly any doubt that the dead body was not recovered at the instance of accused-appellant. This witness has destroyed the whole evidence of the prosecution. He stated quite contrary to the version adopted by the prosecution.
This portion of his statement also cast a doubt on the statements of other witnesses. It is also pertinent to note that Raja Muhammad Sarwar also stated that he was present at the time of the recovery of the clothes. According to him Qamiz and Bunian were lying separate from the dead body. It means that the deceased was not wearing the Qamiz and Bunian, but he had put off the Qamiz and Bunian. According to him a Dopata was also recovered from there. This portion of his statement also cast a doubt and raised the question, that how the Dopata was lying on the place of occurrence and why the deceased put off his shirt and Bunian. Moreover, the question arises that how and why the Dopata was lying on the place of occurrence and why the deceased put off his shirt and Bunian. It also casts a doubt on the genuineness of the story of the prosecution. It is well-celebrated principle of law that benefit of doubt, however, slight it may be, goes to the accused. It was the basic duty of the prosecution to establish the case against the appellant beyond any reasonable doubt. From the aforesaid discussion, it is established that the prosecution has failed to prove the main link of the chain that the dead body was recovered at the instance of appellant in the presence of P.W.1 to P.W.4.
14. The motive alleged by the prosecution as stated in the report submitted by the police before the District Criminal Court, Mirpur under section 173 was that the deceased developed the illicit relations with the Najima Parveen, who was the relatives of appellant. The appellant and Muhammad Akhter were fast friends. Muhammad Akhter was also aware of the fact that Muhammad Younas is also having the illicit relations with Mst. Najima Parveen. According to the prosecution on 13-12-1985, the appellant Muhammad Younas told Muhammad Akhter that Mst.
Najima Parveen has gone to his parent's house in Village Dandar, so let us avail the chance for adultery. The appellant took alongwith him Muhammad Akhter on the subterfuge of adultery and when they reached on a desolated place the appellant committed the slay of Muhammad Akhter.
The prosecution has alleged a particular motive for the commission of murder. If the motive would have not been alleged then it was not necessary for the prosecution to prove the motive, but where a particular motive is alleged then it is the duty of the prosecution to prove the motive. In the instant case there is no direct evidence and whole of the case is based upon the circumstantial evidence. A particular motive was alleged by the prosecution, so it was the duty of the prosecution to prove the motive beyond reasonable doubt. It also cannot be ignored that in such like case of circumstantial evidence, where there is no direct evidence, the proof of motive is also necessary.
Now question arises, whether in the instant case the prosecution could prove the motive or not?
The prosecution has failed to prove the motive. No witnesses of the locality appeared, who deposed that the deceased and the appellant were having illicit relations with Mst. Najima Parveen.
Usman Khalid although in the examination-in-chief deposed that Muhammad Akhter developed the illicit relations with Mst. Najima Parveen and the accused-appellant wants to develop his relations with Mst. Najima Parveen, so he committed the murder. But in the cross-examination he stated that he was not having knowledge that Muhammad Akhter was having relations with Mst.
Najima Parveen, but the appellant Muhammad Younas told him as such at the police station. He was not having any personal knowledge about the relations of Mst. Najima Parveen with Muhammad Akhter. There is no other evidence in support of the motive alleged by the prosecution.
It is also pertinent to note that no witness from the locality was produced, who has stated that in these days Mst. Najima Parveen was living in the house of her parents. Now when the prosecution has failed to prove the motive alleged by the prosecution then a serious doubt also arises that why the appellant would have murdered Muhammad Akhter.
15. The next set of the prosecution evidence is that the appellant was lastly seen in the company of the deceased. Last seen evidence is the weakest type of evidence and no reliance can be placed on such evidence, if it is not corroborated by other strong incriminating piece of evidence. Last seen with the accused alone is not sufficient evidence for the conviction. Further evidence is required to link the accused with the murder of his companion, which is lacking in the instant case.
As stated' above that the prosecution has failed to prove the recovery of the dead body at the instance of the accused and motive alleged by the prosecution. Therefore, merely on the basis of last seen evidence, it cannot be said that the appellant committed the murder of Muhammad Akhter.
16. Another evidence adduced by the prosecution was that the (knife) weapon of the offence was recovered at the instance of the appellant. I would not like to indulge in the details of the contradictions among the witnesses of the recovery. But this recovery of the knife has failed to render any useful purpose because a skeleton was recovered from the place of occurrence. The doctor has not given any opinion that the injuries were caused with the knife. According to the post-mortem report, the deceased sustained the injuries with the blunt weapon. There is nothing on the record on the basis of which it can be said that any injury with the knife was inflicted to the deceased. Therefore, the recovery of the knife is useless and has served no purpose.
17. As stated above, that there is no direct evidence in the instant case and the case of the prosecution against the appellant Muhammad Younas is based on the circumstantial evidence.
18. It was the basic duty of the prosecution to prove all the links of the circumstantial evidence, but the prosecution has failed to prove all the links beyond any reasonable doubt. No doubt that this was the most brutal murder. The way in which the deceased was murdered has engraved indelible feeling of sorrows on the heirs of the deceased. But finding of guilt against the accused-appellant cannot be based merely on the probabilities that may be inferred from the evidence. Finding of guilt should rest surely and firmly on the solid and cogent evidence, because the conjectures, surmises and probabilities cannot take place of proof. Therefore, the appeal filed by Muhammad Younas is accepted and the sentence awarded by the Additional District Criminal Court, Bhimber is hereby set aside. He shall be released immediately provided he is not detained or required in any other case or offence. The appeal filed by Usman Khalid has no merits and is hereby dismissed.