' Asif Mansoor appellant along with his co-accused, namely, Muhammad Arif and Qaiser Rashid (since acquitted on the basis of compromise effected between them and the legal heirs of the deceased) having faced trial for the charge under sections 302/34 and 420/406, P.P.C. Before the learned Additional Sessions Judge, Islamabad was convicted and sentenced through the judgment, dated 17-2-1992 in the following manner:--
(i) Under section 302, P.P.C.
Imprisonment for life with a fine of Rs,15,000 or in default thereof to further undergo R.I. For two years.
(ii) Under section 420/406, P.P.C.
' Rigorous imprisonment for five years with a fine of Rs,2,000 or in default thereof to undergo R.I. For six months each under sections 420 and 406, P.P.C. Separately. All the sentences have been ordered to run consecutively with benefit of section 382-B, Cr.P.C.
' The co-accused of the appellant, namely, Muhammad Arif and Qaiser Rashid having compromised with the legal heirs of the deceased, were acquitted of the charge, under section 345(6), Cr.P.C. The appellant being aggrieved of his conviction and sentence has filed this appeal.
2. Precisely, the prosecution case as contained in the complaint (Exh.P.F.) lodged by Muhammad Raziq (P.W.5) on 11-8-1990 at Police Station Aabpara, Islamabad, is to the effect that on 5-8-1990 at 9-30 a.m. The appellant along with his co-accused, namely, Muhammad Arif and Qaiser Rashid, approached the complainant in the Capital Hotel, Islamabad and hired a Car bearing No,IDA4039 from him to take them to Lahore to be driven by Tariq Javed with the understanding that they would come back on 6-8-1998. The accused having not turned up till 11-8-1990, the complainant smelling some foul play reported the matter to the police and upon investigation it revealed that the appellant and his co-accused after committing the murder of Tariq Javed, the driver of the car, in a jungle near Sarai Alamgir, District Gujrat left for Lahore with the car. The appellant and his co- accused were accordingly challaned to face the charge under section 302/420/406, P.P.C.
3. The prosecution produced as many as 13 witnesses in proof of the allegations against the appellant and his co-accused. Muhammad Arif and Qaiser Rashid, who having acquitted as a result of compromise with the legal heirs of the deceased, were examined as C.Ws.1 and 2, respectively, at the trial against the appellant Dr. Rehana Azim was examined as C.W.3.
4. Shakil Ahmad (P.W.1) deposed that he took the appellant and his co-accused to Tariq Javed deceased, who was running taxi Car No,IDA-4039 and got his taxi engaged for the appellant and his co-accused. Haji Ahmad (P.W.2) stated that Muhammad Arif and Qaiser Rashid, co-accused of the appellant, pointed out the place of occurrence, from where the bones of the different parts of human body were recovered alongwith one shoe (Exh.P.1), shirt (Exh.P.2), pant (Exh.P.3) and a photostat of identity card of the deceased, which were taken into possession vide memo. Exhs.P.A.
And P.B. Mukhtar Ahmad, A.S.-I. (P.W.4) stated that on an information, he took into possession the car bearing No,IDA-4039 in broken condition under section 550, Cr.P.C. From Pabbi jungle nearby Railway crossing, Kharian. Muhammad Raziq (P.W.5), complainant of the case who was managing the office of a Rent A Car in Capital Hotel, Islamabad and was approached by the accused including the appellant for hiring a car for Lahore and consequently a Car bearing No,IDA-4039 (Exh.P.5) was given to them on rent deputing Tariq Javed deceased as driver with the accused. The witness has deposed that the appellant was accompanied by Muhammad Arif and Qaiser Rashid (since acquitted) and when the car and driver did not turn up for 5/6 days, the matter was reported to the police. Syed Abid Hussain (P.W.6) stated that the appellant has pointed out the place near Sarai Alaingir, where the deceased was done to death. Johar Ali (P.W.7) deposed that he witnessed the arrest of the appellant on 14-10-1990 and recovery of pistol (Exh.P.7) from him, which was taken into possession vide memo. Exh.P.H. Yasar Raza (P.W.9) has stated that the acquitted accused, namely, Muhammad. Arif and Qaiser Rashid pointed out the place of murder of the deceased in the jungle near Sarai Alamgir and he accompanying the police party took photographs of the said place, which have been 'made part of the record. Muhammad Sharif (P.W.11), a Section Officer in the Ministry of Interior, deposed that the appellant being known to him, was brought by his parents to him for his production before the police, but he slipped away and ultimately was arrested on 14-10-1990. Farman Ahmad (P.W.12) has stated that he being cousin of Qaiser Rashid was informed by him that the appellant after hiring a taxi from Islamabad snatched the same from its driver in Pabbi Jungle while proceeding towards Lahore after causing injuries to him and left for Lahore and he did not know whether the driver was still alive or dead. This witness, however, got arrested Qaiser Rashid and Asif Mansoor on 8-9-1990 and 11-8-1990, respectively through Mughalpura Police at Lahore. Muhammad Yousaf (P.W.13), the Investigating Officer of the case has recorded the statement of the complainant (Exh.P.F.) and after registration of case through formal F.I.R. (Exh.P.F./1) conducted the investigation and ultimately having found the appellant and his co-accused (since acquitted) involved in the case challaned them to face the trial.
5. Muhammad Arif and Qaiser Rashid, co-accused of the appellant upon their acquittal on the basis of compromise with the legal heirs of the deceased, appearing as C. Ws. 1 and 2 respectively, deposed in the following manner:-- Statement of Muhammad Arif: "I know Asif Mansoor accused present in Court and also Qaisar Rashid since acquitted. I became acquainted with both. Of them as the said two accused were in District Camp Jail, Lahore as under-trials in other cases, and I was on duty there as Ex-Warden of the Jail. They became my friend. After being acquitted in other cases, Asif and Qaisar were released from that Jail and even thereafter they went on seeing me as we had developed friendship. They invited me for a visit to Murree. Thus, I obtained five days leave from the Superintendent Jail. On 3-8-1990, I and Qaisar came to Islamabad but were informed by the younger brother of Asif that Asif was at Murree, so we went to Murree and contacted Asif accused there. We two stayed in Murree for the night and on the next day we three came to Islamabad. Asif Mansoor accused arranged for our stay in Islamabad with his friend Abbasi. We three then chalked out a programme to leave for Lahore, thus, we went to Ambassador Hotel in a Taxi and from there we went to Capital Hotel in the same taxi and from there Asif accused hired a taxi for Lahore being Honda Accord. Tariq Javaid was driver of that Taxi car. We three occupied that taxi and left for Lahore being driven by Tariq Javed. When we reached ahead of Sarai Alamgir, Asif accused stopped the taxi as he wanted to make water. We had already planned to snatch taxi from the driver. We noticed that there was no traffic on the part of the road at that time. So, after stopping the taxi, we got alighted the driver and we three took him into bushes. Qaisar Rashid was having a pistol .30 bore with him, he fired at Tariq Javed hitting him on front near shoulder left side. I was also having pistol of .30 bore with which I then fired at Tariq hitting his left arm, and thereafter, Asif Mansoor accused fired at Tariq Javaid with his .32 bore revolver hitting in the neck of Tariq and then Tariq fell down. We left Tariq there in injured condition and we three drove away the taxi to Lahore. From where, I departed for Narowal and Asif returned to Islamabad, whereas Qaisar remained at Lahore. We left the said taxi at car stand of Services Hospital Lahore. We three had further planned to sell away the taxi. I went to Narowal on 6-8-1990 and returned to Lahore on 11-8-1990 but was arrested by the police of Mughalpura Police Station.
We were also having a scheme to commit dacoity but due to arrest of us, the said scheme could not materialised."
Statement of Qaisar Rashid "I and Asif Mansoor accused remained together in Camp Jail, Lahore as under-trial in different cases, and thus, developed intimacy. Muhammad Arif C.W.1 being employed in that Jail also became our friend. Asif Mansoor was firstly released from that jail and afterwards. I was released.
Asif came to Islamabad and through a letter he invited me and Arif C.W.1 to visit Islamabad. About one and a half years back I and C.W.1 came to Islamabad and from here we went to Murree where we stayed for one day with Asif accused and on the next day we three came to Islamabad and went to Capital Hotel and from there to Ambassador Hotel and from there on the identification of Asif accused, we were able to rent a car for Lahore which was being driven by its driver Tariq.
Myself, Asif and Arif left by that taxi car driven by Tariq for Lahore and when we reached between Kharian and Jhelum, we got stopped the taxi on the pretext of making water. When the driver came out of the taxi, Arif lifted him to a depression (Kassi). Arif was armed with .30 bore pistol. I got that pistol from him and fired one shot at the driver hitting him in the chest. C.W.1 or Asif Mansoor did not fire any shot at the driver. On sustaining of fire shot, Tariq fell down facing the earth. Afterwards Arif examined Tariq and told us that he had expired. During all this process Asif accused as well as C.W.1 had also come down to Kassi where I had fired shot and took the life of Tariq. C.W.1 remained standing at a distance of about one pace from me whereas Asif accused was standing about 10 paces from there when I fired the shot. Thereafter, we three went to Lahore in that taxi car being driven by Asif. From there Arif went to Narowal, Asif returned to Islamabad. During the investigation we three were arrested. It was at Murree for the first time that Arif disclosed the plan to take a taxi to Lahore and we must snatch the taxi from its driver, and then to kill him whosoever he might be.
Again said C.W.1 at that time had only planned to snatch the taxi from its driver but he had not nominated Tariq at that time. It was however, at the place of occurrence when C.W.1 further planned to kill the driver Tariq as according to C.W.1, the driver had seen the house of Asif and if the driver was not killed he would report the matter to the police resulting in our arrest. Thus, on the direction of C.W.1, I killed Tariq, I did not volunteer for making statement before a Magistrate rather the Investigating Officer compelled me for involvement of all of us. In this case my relatives have compromised the matter with the legal heirs of the deceased."
' Professor Dr. Rehana Azim, Anatomy Department, Rawalpindi Medical College Rawalpindi appearing as C.W.3 has stated that she examined the bones and skull recovered from the place of occurrence and reported that the same were of human being.
6. The appellant in his statement under section 342, Cr.P.C. Admitting the factum of having faced trial in different cases at Lahore together with Qaiser Rashid and Muhammad Arif, a Warden in jail, giving detail of friendship with them and the activities denied the allegation of having accompanying his co-accused to Lahore in the car in question and snatching of the same from the driver Tariq Javed after committing his murder. He stated that he has been falsely involved in the case. He, however, did not make a statement under section 340, Cr.P.C. Or produce any evidence in defence.
7. The prosecution placed reliance upon the evidence as mentioned above alongwith the statements of Muhammad Arif and Qaiser Rashid, C.Ws. 1 and 2, both co-accused of the appellant, who were acquitted as a result of compromise with the legal heirs of the deceased during the pendency of the trial. The prosecution also banking upon the abscondence of the appellant, the evidence of Muhammad Sharif (P.W.11) with admission of the accused regarding his association with his co-accused, (since acquitted, in his statement under section 342, Cr.P.C. Succeeded to get the trial Court convinced to convict the appellant.
8. Before the conclusion of the trial, the co-accused of the appellant,namely, Muhammad Arif and Qaiser Rashid having entered into a compromise with the legal heirs of the deceased by making payment of Rs,1,00,000 (Rupees one lac) each as Diyat and compensation to them, made extra- judicial confession before Farman Khan (P.W.12) and upon acquittal from the charge, they were called to the witness-box and examined as C.Ws. 1 and 2. The trial Court mainly placing reliance on their statements alongwith the alleged admission made oy the appellant before Muhammad Sharif (P.W.11) and his abscondence with the extra-judicial confession allegedly made before Farman Khan (P.W.12) and the recovery of the human bones, clothes, identity card a boot of the deceased and the compromise of legal heirs of the deceased with the acquitted accused as corroborative evidence convicted and sentenced the appellant in the manner detailed above.
9. Learned counsel for the appellant contended that the circumstantial evidence produced by the prosecution at the trial being insufficient to connect the appellant with the commission of offence, the trial Court on the basis of the statement of the co-accused as Court-witnesses illegally convicted the appellant and sentenced him for the charge under section 302/420/406, P.P.C.
Learned counsel without discussing the evidence in detail contended that the statement of the co- accused could not be used against the appellant as neither they were declared approver nor were the prosecution witnesses, He also contended that even if they hold the status of witnesses, unless their evidence 'is corroborated through independent source is of no evidentiary value to be used for the purpose of conviction in the capital charge.
10. Conversely, learned counsel appearing on behalf of the State argued that for the purpose of bringing out the truth, the Court under section 540, Cr.P.C. Is empowered to call any person as Court-witness and consequently examination of the co-accused of the appellant as Court-witness was not illegal.
11. I have heard the learned counsel for the parties at length and carefully perused the record with their assistance. According to the prosecution story set up in the complaint lodged by Muhammad Raziq (P.W.5), the appellant as well as his co-accused, since acquitted, participating in the occurrence together hired a taxi from Islamabad to go to Lahore and in the way when they reached near Pabbi Jungle at Sarai Alamgir, after causing injuries to the Driver, Tariq Javed deceased, snatched the taxi from him. All the three accused after pointing out the place of occurrence, disclosed the commission of offence during the investigation. This story disclosed by the accused is not supported by any other direct evidence, as the remaining evidence brought on record is confined to the extent of proving the fact of taking away the taxi by the accused from Islamabad. There is no evidence available on record in proof of the causing of injuries and taking place of the occurrence in the Pabbi Jungle near Kharian except the statement of the accused as Court-witness: Thus, the story is divided into two parts. First part relates to the taking of taxi from Islamabad and second of its snatching and killing the deceased. There is no other evidence to connect the appellant with the second part of the story except the statement of the C.Ws., the accused in the case.
12. The first question for determination is whether without reading the statement of these Court- witnesses the conviction and sentence in the capital charge is sustainable on the basis of remaining evidence. The answer is in the negative for the reason that taking away of the taxi with driver from Islamabad could constitute an offence under sections 365 and 365-A, P.P.C., but the same by itself is not an evidence of murder. The prosecution has not been able to bring any evidence on record that how and under what ciroumstances and in what manner the taxi was snatched by the accused and when the deceased was done to death. The time of death could not be ascertained as only the bones of the dead body were recovered. This would create a reasonable doubt about the time elapsed between the day when the taxi was hired from Islamabad and the date of death of the deceased and, therefore, there being no proximity of time, the last seen evidence in the nature of the statement of the complainant whereby the taking of taxi by the accused from the Capital Hotel, Islamabad with the deceased is not much helpful to the prosecution to establish the charge under section 302, P.P.C. Thus, the conviction of the appellant on the basis of the last seen evidence alone alongwith the alleged abscondence of the appellant is not enough to hold him guilty. The acquitted accused allegedly played the similar role to that of the appellant and, therefore, it being not known that what distinguishable role has been played by an individual accused, to determine the individual liability.
12. Resuming to the evidence of the Court-witnesses, namely, Muhammad Arif and Qaiser Rashid, who were co-accused of the appellant, it is necessary to judge the admissibility of their evidence.
Under Article 16 of the Qanun-e-Shahadat Order, 1984 (President's Order No,10 of 1984), the statement of an accomplice is not admissible if it is in conflict with the Illustration (b) of Article 129 thereof and does not seek corroboration from independent source. Article 16 and Illustration (b) of Article 129 (ibid) reads as under:-- "16. Accomplice.-- An accomplice shall be a competent witness against an accused person, except in the case of an offence punishable with Hadd and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
129. Court may presume existence of certain facts.--- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case-- Illustrations: ' The Court may presume--- (a)
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars."
' Considering the argument of the learned counsel that the statement of the co-accused of the appellant after entering into a compromise with the legal heirs of the deceased and getting acquittal from the charge, as Court-witnesses is not admissible as they being accused of the case did not reduce their statement less than an accomplice is not without force. The evidence of the Court-witnesses lacking independence is mudded with the motive to save their skin and, therefore, in any case, cannot acquire the standard of independent evidence admissible for the purpose of conviction for capital charge. They having not made approver as envisaged in section 337, Cr.P.C.
Did not acquire the status of a witness to disclose the truth of the matter. They also did not make any confessional statement and their evidence as Court-witnesses in the capacity of accused being not an evidence under Article 129, Illustration (b) of the Qanun-eShahadat Order, 1984 is not reliable under Article 16 thereof. Consequently, the same cannot be used and read in evidence unless corroborated by independent source. The remaining evidence available on record relied upon by the trial Court as corroborative evidence is equally usable against the said Court- witnesses, and thus, the same has lost its corroborative value against the appellant The question regarding the admissibility and evidentiary value of the statement of an accomplice, who has been declared as competent witness under Article 16 (ibid) has been judged by the apex Court in the case Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others 1994 SCM R 932 in the following manner:-- "We may also observe that Article 16 and illustration (b) of Article 129 of the Order are apparently in conflict. In such a case the Court is required to place such construction, which may harmonize the above two provisions. Though by virtue of the above Article 16 it is permissible that the Court may convict an accused person on the basis of uncorroborated evidence of an accomplice, but the Court as a rule of prudence and because of above illustration (b) of Article 129 of the Order insists upon for having the testimony of an accomplice corroborated in material particulars, and, thereby harmonize the above two provisions."
13. In the light of the above discussion, after exclusion of uncorroborated evidence of the Court- witnesses, namely, Muhammad Arif and Qaiser Rashid, who being accused in the case are accomplice, there is no evidence on record direct or circumstantial to connect the appellant with the commission of offence and his case being not distinguishable to that of his co-accused, who have been acquitted of the charge as a result of the compromise with the legal heirs of the deceased, the conviction and sentence of the appellant is not sustainable. Consequently, this appeal is allowed, the conviction and sentence of the appellant under section 302/420/406 P.P.C. Is set aside and he is directed to be released from jail forthwith if not required in any other case.