1. On 21-5-1997, Munir Ahmad (complainant) got recorded F.I.R. Exh.PJ wherein he alleged that his brother. Muhammad Younas was married with Mst.
2. Sughran Bibi, who developed illicit relations with many persons, which strained the relations between the couple. Muhammad Younas brought Shehbaz Shah (accused), a Peer, who while giving Taveez etc. developed illicit relations with Mst. Sughran. About 28 days earlier, Mst. Sughran and Syed Shahbaz Shah took Muhammad Younas to Darbar Pir Chanan to offer respect (Salam). They were seen by Mian Muhammad Sarwar and Umar Hayat (P.Ws.), the relatives of complainant. After four days, Mst. Sugran Bibi Shahbaz returned without Muhammad Younas. Muhammad Sarwar enquired from about Muhammad Younas from Mst. Sughran, who told him that he had gone to Multan to see his brother Munir Ahmad (complainant). Muhammad Sarwar, after waiting for 8/10 days, sent a telegram to Munir Ahmad enquiring about the welfare of Muhammad Younas.
3. The complainant -then came to Sadiq Abad and with the help of Muhammad SarWar and Umar Hayat launched a search for Muhammad Younus and after having failed to trace him, got recorded the complaint Exh.PG- wherein he expressed his suspicion that Mst. Sughran and Syed Shahbaz Shah had abducted his brother Muhamamd Younas with the intention to kill him. On the basis of complaint Exh.PG, formal F.I.R. Exh.PG/1 was recorded at Police Station City Sadiq Abad under section 364, P.P.C. on 21-5-1997 at 12.20 p.m.
2. After recovery of the dead body of Munir Ahmad, the offence under section 302/34, P.P.C. was added. In pursuance of the said F.I.R., both the above-named accused were arrested, tried and finally convicted and sentenced on 6-12-1997 by the Special Judge, Special Court, Anti-Terrorism, Bahawalpur-I, as under:-- ______________________________________________________________________________________________________ Name of accused Conviction Section Sentence ______________________________________________________________________________________________________ Shahbaz Shah 302/34, P.P.C. Life imprisonment.
4. Mst. Sughran Bibi 302/34, P.P.C. Life imprisonment. ______________________________________________________________________________________________________ 3.Syed Shahbaz Shah through Criminal Appeal SC(T) No,28 of 1997 and Mst. Sughran Bibi through Criminal Appeal: SC(T) No, 29 of 1997 have challenged their convictions and sentences. Through this judgment both the abovementioned appeals are being disposed of.
5. 4.The learned counsel for the appellants at the very outset contended that there was no evidence on record about the identification of the dead body to be that of Muhammad Younas, the brother of Munir Ahmad complainant. In line with this contention, he further submitted that no one identified or proved that the pair of shoes P-3/1-2, the torn Shirt P-2, the Shalwar P-1 and the rings P 8/1-3 belonged to Muhammad Younas (deceased) and he was wearing these articles when he was last seen alive. In this regard he also referred to the inquest report Exh.PB and pointed out that name of these articles were mentioned in it. He elaborated that in these circumstances the recovery of said clothes and rings from the person of the deceased and that of the shoes from the place of recovery of dead body had become highly doubtful. He further pointed out that the recovery of thermos P-5 alongwith a packet (puri) P-6 and a cup P-7 was obviously planted recoveries to show the administration of poison to Muhammad Younas which was belied by the report of the Chemical Examiner as no poison was detected from the hairs, bones, skin and preservatives of the recovered dead body.
6. 5.He referred to the case of Muhammad Yousaf v. The State (1995 SCM R 351) and submitted that the appellants were entitled to acquittal as the evidence of recoveries was not at all reliable. He further submitted that it was evident from the statements of Munir Ahmad (P.W.5) and Sarwar (P.W.6) that both Shahbaz Shah and Mst. Sughran led to the recovery of the dead body. The learned counsel placed reliance upon Naeem Akhtar and others v. The State (193 P.Cr.L.J. 769) and maintained that evidence of joint recovery was not admissible and this fact alone sufficient to create doubt in the prosecution version.
7. 6.The recovery of dead body of the victim bearing marks of physical violence is not the only mode of proving corpus delicti in a murder case and conviction can be based on cogent and satisfactory proof of homicidal death of the victim. Such proof may be by the direct ocular account of an eye-witness, or circumstantial evidence or by both. But where the fact of corpus delicti is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. The corpus delicti by the fact of homicidal death can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. So, even if where the dead body is not found (or for instance not identified) the accused can be convicted if there is circumstantial evidence leading rationally and irresistibly to the conclusion that the deceased was murdered by the accused. But in the case in hand, the dead body of Muhammad Younas was allegedly recovered on the pointation of the accused and it was identified by Naseer Ahmad son of Bashir Ahmad and Haroon son of Abdur- Rahman as is obvious from the inquest report Exh.PB. Surprisingly, both the said persons were not cited as witnesses and Munir Ahmad (P.W.5), the brother, and Sarwar (P.W. 6), a relative of the deceased, made no attempt to identify the recovered skeleton or corpse to be that Muhammad Younas. Even ASP/SDPO Sadiqabad while checking the challan did not bother to attend to this fact which materially affected the prosecution case. None of the P.Ws. identified the pair of shoes, the clothes and the rings to be that of Muhammad Younas. The fact that one of the rings removed from the finger of the dead body by the doctor had engraved name of Muhammad Younas is nothing but an attempt on the part of the Investigating Officer to establish the identity of Muhammad Younas through planted evidence as presence of these articles was not mentioned in the inquest report Exh.PB and in the recovery memo of dead body Exh.PH. The Investigating Officer further attempted to establish the case of death through poison by further planting the 'thermos', ' puri' and the cup, but his attempt miserably failed as no poison was detected from the organs of the dead body by the Chemical Examiner. The prosecution has not only failed in establishing the identity of the recovered corpse (skeleton) but also created evidence of fictitious recoveries to strengthen the case. It is evidently a case of "joint recovery". Munir Ahmad and Sarwar P.Ws. categorically stated that both the accused Shahbaz Shah and Mst. Sughran, while in police custody, on 23-5-1997, led to the recovery of dead body of Muhammad Younas and a pair of shoes.
8. They also admitted in presence of Nazir Ahmad accused (since discharged) at that time in custody. The Investigating Officer Muhammad Sharif A.S.I.
9. (P.W.11) contradicted both the said P.Ws. and stated that the recovery was effected on the pointation of Shahbaz Shah accused and he had only taken Mst. Sughran accused with him at that time. This is a patent lie. When Mst. Sughran was simply taken with him by the said Investigating Officer why he did not arrest her after the recovery of the dead body. It may be pointed out that according to Muhammad Sharif, Inspector (P.W. 10), Mst.
10. Sughran and Nazir Ahmad (discharged accused) were arrested by him on 30-5-1997 and 31-5-1997, respectively. It is not understandable as to why Muhammad Sharif A.S.I. let Mst. Sughran go home after the recovery of the dead body of Muhammad Younas and incriminating evidence and arrested her after 7 days. It is on record that both the appellants and the discharged accused were in custody when so-called dead body of Muhammad Younas was recovered on their pointation. The evidence in the case is of joint recovery, which is not admissible in law and, therefore, is of no use to the prosecution.
11. 7.The learned counsel for the appellants next contended that there was no satisfactory evidence regarding the alleged illicit relations between both the appellants. He pointed out that Munir Ahmad (P.W.5) said nothing about the said illicit relations in his examination-in-chief. He derived his information in this case from the people of Mohallah, as admitted in cross-examination, but neither he disclosed the names of these persons nor produced any witness of the locality to prove the same. He then referred to, the statement of Sarwar (P.W. 6) and submitted that he was an "omnipresent" and "omnipotent" sort of person. He allegedly saw deceased in the company of the accused, informed the complainant, knew about the motive and was present at the time of recovery of dead body etc. etc. He submitted that even his statement regarding the motive was of a general nature and was not corroborated by any other P.W. Reliance was placed on the case of Ashiq Hussain v. The State (1993 SCM R 417).
12. 8.There is much force in the arguments of the learned defence counsel. The solitary statement of Sarwar (P.W.6) is not sufficient to prove the alleged motive for the commission of offence in this case and this fact is also damaging to the prosecution case.
13. 9.The learned counsel for the appellants finally submitted that the evidence of last seen provided by the solitary witness Sarwar (P.W.6) could not alone become the basis for the conviction of the appellants. In this regard referred to the case of Muhammad Hanif v. The State (1995 P.Cr.L.J. 985).
14. 10.Sarwar as P.W.6 stated that he alongwith Umar Hayat was going towards bus stand when they met Shahzad Shah and Mst. Sughran (accused) and Muhammad Younas (deceased). On his query they replied that they were going to visit the shrine of Chan Peer. Umar Hayat, the other witness of having seen Muhammad Younas alive in the company of the accused, was given up being unnecessary. I am at a loss to understand how in a case based only and only on circumstantial evidence and that too of "last seen" such an important witness was given up while he was not hostile. This can only be explained by Syed Iftikhar Hussain Shah D.D.A., who considered this witness as unnecessary. In fact, evidence of Umar Hayat could corroborate the statement of Sarwar P.W. and which ultimately could change the fate of the case. Even the learned trial Judge should not have allowed the learned prosecutor to drop such important evidence, which was essential for the correct decision of the case. Now we are left with the solitary statement of Sarwar P.W. in this regard. The said P.W., as observed earlier, was present on all the occasions. In other words, none-else from the Mohallah or any other respectable citizen was made to witness the recoveries. No doubt Sarwar P.W. cannot be termed as a "chance witness" as the presence of such a witness at public resorts is very likely, but his uncorroborated testimony regarding having seen Muhammad Younas in the company of the accused and his witnessing all the events of this case should have made the Trial Court rather conscious in accepting his testimony.
15. In fact, his statement is materially contradicted by the statements of the Investigating Officers regarding arrest of Mst. Sughran (accused) and Nazir Ahmad (discharged accused) and regarding their presence at the time of recoveries of dead body etc. In the circumstances of this case, the uncorroborated statement of Sarwar P.W. is not at all sufficient to prove the prosecution case. It is a poorly and badly conducted case, handled by incompetent persons. In all criminal cases and particularly where someone has died and someone else is to face gallows every possible effort should be made to bring on record all available evidence and place the same before the Court to enable it to reach to a correct conclusion so that no injustice is done to either of the parties. The prosecution has failed to prove its case against the appellants accused beyond a reasonable doubt.
16. As a result of the above, both the appeals are accepted and the appellants are acquitted by giving them benefit of doubt. Their convictions and sentences are set aside. They be released immediately, if not required in any other case.