' ABDUL WAHEED SIDDIQUI, J.---Appellant has assailed a judgment dated 3-4-1994 delivered by the Court of Sessions Judge, Islamabad whereby he has been convicted under section 302, P.P.C. And has been sentenced to imprisonment for life and to a fine of Rs,10,000 in default of payment of which he will undergo further S.I. For two years. The appellant has also been convicted under section 392, P.P.C. Read with section 20 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 and has been sentenced to R.I. For seven years and to fine of Rs,5,000 in default of payment of this fine he will suffer S.I. For one year. These sentences are directed to run consecutively. Benefit of section 382-B, Cr.P.C. Has been extended to him. By the same impugned judgment the heirs of the deceased have been awarded Rs,20,000 as compensation under the provisions of section 544-A, Cr.P.C. In default of payment of this compensation, he will suffer further S.I. For two years. Petitioner Abdul Ghani has impugned the abovementioned judgment through a Criminal Revision Petition whereby he has prayed firstly for enhancement of sentence from life imprisonment to death under section 302, P.P.C. And fine to be enhanced to Rs,5 lacs and in default of payment to R.I. For two years, secondly for increase in award of compensation under section 544-A, Cr.P.C. From Rs,20,000 to Rs,5 lacs, thirdly to an enhancement of sentence under section 392, P.P.C. Read with section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 from R.I. Of seven years to R.I. Of 14 years and a fine of Rs,5,000 on this count to be enhanced adequately and fourthly that any other relief which is deemed proper may be granted to the petitioner in the interest of justice and in the peculiar circumstances of the case.
2. Appellant Mirza Tahir Hussain was convicted in Sessions Case No,8 of 1989 by the then Additional Sessions Judge, Islamabad and who vide his judgment dated 30-9-1989 awarded him the sentence of death and a fine of Rs,20,000 and in case of non-confirmation of death sentence he was to further undergo R.I. For two years in lieu of fine. On the second count he also convicted him under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392, P.P.C. And sentenced him to 10 (ten) years' R.I. And to a fine of Rs,5,000 (five thousand). In default of payment of fine the accused had to further undergo R.I. For 1 year. He was allowed the benefit of section 382-B, Cr.P.C. And he made the sentences to run concurrently.
' Subsequently, the matter went to the Lahore High Court and the said sentences were set aside and the case was remanded to the Court of Sessions Judge, Islamabad with the observations: ' "We have taken notice of the failure of the learned trial Court to put a question to the appellant/accused in respect of the allegation that he had committed the murder of the deceased, Jamshaid Khan, in respect of which he was sentenced to death pursuant to the capital charge framed against him under section 302, P.P.C. The failure of the learned trial Court to specifically put a question to the appellant/accused regarding the said allegation and consequent failure to call upon him to produce defence in respect thereof has caused grave prejudice to the appellant; and as failure to do so by the learned trial Court is not a curable irregularity under the provisions of section 537, Cr.P.C. Therefore, we further hold that the failure of the learned trial Court to specifically put the appellant/accused a question in respect of the charge under section 302, P.P.C. As stated above and consequently omission to call upon him to produce defence, if any, in respect thereof has occasioned the failure of justice in the trial of the appellant/accused.
Resultantly, we allow this criminal appeal and set aside the conviction and sentence of the appellant, vide the impugned judgment, and remand the case to the learned Sessions Judge concerned for re-trial from the stage of his examination under section 342, Cr.P.C. For fresh decision in accordance with law."
' Making an effort to dialte upon various questions involved in this case, the learned Sessions Judge has shown his disadvantage to do so in para. No,18 of the impugned judgment before us which is quoted verbatim: ' "Of course I had a disadvantage of not recording the evidence in this case but after listening to the learned counsel from both sides and the learned District Attorney for the State and after going through the record, I am convinced about the guilt of the accused. I, therefore, convict him against both counts, under section 302, P.P.C. And uncle] section 20 of the Offences Against Property (Enforcement of Hudood; Ordinance, 1979 read with section 392, P.P.C."
3. Story of the prosecution, summarium, is that one Muhammad Aril (P.W.11), complainant, inspector of Police, S.H.O., P.S. Sihala anc Investigation Officer of the present case was present in front of Mir Dad Hotel. G.T. Road alongwith other personnel of police in connection with patrol duty a 11-30 p.m.
On 18-12-1988. Amjad Masoud (P.W.4) came to him and informer him that a person was in a suspicious condition in Taxi No,I.D.B. 4049 who was present at a patrol pump nearby and there was blood on the seat of taxi. Amjad Masoud informed him further that he is a salesman at the petrol pump and the person in suspicious condition had taken petrol in his taxi and thereafter the taxi could not start. Thereafter the complainant accompanied by the said informer Amjad Masoud, Mir Dad (P.W.5) and other police officials went to the petrol pump and made querries from the suspected person but the replies were not satisfactory. He searched the person who is the present appellant, and found him carrying a .30 bore pistol under his clothes for which no licence could be produced by him. Consequently a case crime No,125/88 P.S. Sihala under sections 13/20/65, A.O.
Was registered which had its basis on a Murasila (Exh.PN) drafted by the complainant Muhammad Asif (P.W.11) S.H.O. P.S. Sihala. This Murasila indicates that the informer Amjad Masoud had informed at 11-1/2 p.m. On 18-12-1988, but after personal search and the search of a bag lying in the taxi from which, inter alia, another incriminating article i.e, a dagger was also recovered for which also no licence could be produced. This Murasila was drafted at 12-10 a.m. On 19-12-1998 and sent to the police station for registration of a case through Shakil Ahmed, P.C. No,743. Another Murasila (Exh.PE) which relates to the present case before us, was prepared by the same S.H.O., P.S. Sihala namely Muhammad Asif (P.W.11) after having interrogated the appellant further. This Murasila was prepared at 7 a.m. On 19-12-1998 at Suwan Camp and was sent to police station through Sakhawat Ali P.C. No,351 who has not been examined. As per this Murasila (Exh.PE), while Muhammad Arif (P.W.11) was conducting investigation relating to case No, 125/88 under section 13/20/65, A.O.
Against the appellant (per Exh.PN), the appellant admitted that he had hired Taxi No, IDB-4049 from Rawalpindi and when it reached Suan Camp, G.T. Road he asked the driver to stop the taxi and leave it but the driver refused. The appellant then shot the driver with his .30 bore pistol in the taxi and threw him on one side of the road. After having done that, he drove the robbed taxi and reached a petrol pump near Rawat and stopped there for obtaining gasoline. After having done that, the said taxi could not start. After that he was arrested, interrogated as has already been explained in the first Murasila (Exh.PN). Later on he led the police party to the place where the corpse of deceased Jamshed was lying. An inquest report (Exh.PK) was prepared before witnesses, the robbed taxi was taken into possession, appellant who was already arrested under section 13/20/65, A.O. Now he was formally arrested under section 302, P.P.C. And an F.I.R. Was lodged at 7- 20 a.m. On 19-12-1988 at P.S. Sihala, District Islamabad. He was challaned under sections 302, 392 P.P.C. Read with section 20, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on 10-1-1989. A charge was framed against the appellant on 17-5-1989 under section 302, P.P.C. And section 20 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to which he did not plead guilty.
' To prove its case, prosecution examined 11 witnesses. Muhammad Akram (P.W.1), Draftsman, has deposed that on 20-12-1998 he prepared site plan (Exh.PA and Exh.PA/1) on the direction of the police and pointation of the witnesses. He has proved that the site plan is in the scale of one inch into 40 feet and has also proved entries into black ink including the marginal notes being in his hand. It was handed over to Investigation Officer on 25-12-1988. Rehmat Khan (P.W.2), a contractor by profession, has proved that the deceased was known to him who used to drive the Taxi No,IDB- 4049 which was owned by Sher Khan. On 18-12-1988 at about 10 p.m. He was told by the owner of the said taxi, that the driver had not turned back and asked for the search. Thereafter the owner, the present deponent and Sohbat Khan searched the driver during night in Rawalpindi but could not find him. Next morning at about 5/6 a.m. They went towards Rawat side and at about 6 a.m., they reached the petrol pump on G.T. Road near Rawat. They saw the missing taxi there. They found appellant in the police custody. He has deposed further that the appellant led to the place of the recovery of dead body. He identified the dead body. They found that fire shot had hit the deceased on the right side shoulder and had passed on underneath the left arm pit from where a lead bullet (Art. P.1) was taken into possession. An empty cartridge (Art.P.2) and blood-stained earth was also recovered before him vide Exh.PC and PD. Other mushirs of recovery were Sohbat Khan and Sher Khan. The dead body was also identified by him at the time of post-mortem examination.
Muhammad Jan (P.W.3), S.I.P., has proved receipt of Murasila/complaint Exh.PE and drafting of F.I.R.
Exh.PE/1 which is in his hands and contains his signature. Amjad Masoud (P.W.4), salesman at petrol pump of Raja Mir Zaman & Brothers, G.T. Road, Rawat has deposed that on 18-12-1988 at 10-30 p.m.
Appellant came at the petrol pump in Taxi No,IDB-4049 and gave him a currency note of Rs,100 for taking petrol. He filled the fuel, but thereafter appellant could not start the taxi. After about 10/15 minutes he found the appellant much worried, so he went forward to help him and saw the adjoining seat of the driver blood-stained. He suspected and seeing one Inspector of Police present at the Hotel of Mir Dad about 16 yards away, he went there and informed the said Inspector of Police about the situation. The police and Mir Dad accompanied him and inquired from the appellant about the relevant documents of taxi which could not be produced. Then the Inspector made a personal search and found the appellant having a Holster (P-5) under the left shoulder. A pistol (P-3) was recovered from it and on unloading it four cartridges were recovered. Ten cartridges were recovered from the belt. Hence total number of cartridges was 14 (P.4/1-14). On the search of the taxi, a bag was recovered on the back side of the taxi. This bag contained, inter alia, a Khanjar and clothes including a blood-stained Shalwar. Two passports, one British and one Pakistani and air tickets were also recovered. The recovery memo. (Exh.PF) of all these articles was prepared and were signed by him and Amir Dad (P.W.5) as Mushirs of recovery. The sketch of pistol and Khanjar was also made on Exh.PF. Blood-stained Shalwar (P-6) and blood-stained seat cover (P-7) were also taken into possession. The bag containing clothes etc. Was taken into possession vide Exh.PG. Passport etc. Mentioned into possession of appellant in Exh.PG were also recovered from the bag. This witness also attested Exh.PH which was recovery memo. Of currency notes and a wrist-watch. Amir Dad (P.W.5), hotel keeper near Rawat Petrol Pump has deposed that he was running a hotel near the petrol pump of Raja Mir Zaman and was present on the fateful night at 11- 30 p.m. Inspector Raja M. Arif (P.W.11) alongwith three police constables were present at his hotel.
Amjad Masoud came there and told Inspector that a person in suspicious condition was present at petrol pump. He was asked by the Inspector of Police to accompany him. The remaining deposition contains almost the same details which have been given by P.W.4, however he has also made a reference to the recovery of a Tulai like a cloth from the bag, but on opening the case property in the open Court, the said cloth was not available. Dr. Ali Bakhtair (P.W.6) C.M.O. Federal Government Services Hospital, Islamabad has proved that on 19-12-1988 the dead body was brought and he conducted the post-mortem at 2-30 p.m. On the same day. He found the dead body to be that of a young man on which post-mortem staining and rigor mortis were present. He found following external and internal injuries on the person of the dead body.
EXTERNAL INJURIES ' "Bruise on top of the skull on the left side, half inch diameter skin intact.
(2) Bruise on left side of face temporal region two-inch diameter.
(3) Swelling below right eye with bruise 0/25 inch length.
(4) Blood below right nostril.
(5) Single entry wound right shoulder 1 c.m. Diameter 5.5. c.m. From shoulder joint 36 c.m. From elbow joint, (superiorly). Edges inverted margins burnt.
(6) Single exit wound left side of chest 1 c.m. Dia. Edges everted 13 c.m. Laterly from left nipple 18 c.m. Infero lateral from mid left clavicle.
(7) Scalp intact, blood clot below temporal region one inch diameter. INTERNAL EXAMINATION ' Fractured right third rib, lateral aspect. On left side 5th rib abraded, upper margin, of middle of rib.
Pleura punctured third rib fractured also at point of abrasion of 5th rib left side. Punctured upper lobe of the right lung, penetrating wound through and through, lateral to medial side. Left lung punctured upper lobs penetrating wound through and through. Blood vessels punctured superior vena-cava just before arch of aorta. Chest wall punctured at point of exit. Other walls intact.
Swelling of both lips. Stomach contains were 500 M.L. Semi-digested. All the remaining organs were healthy."
' According to the expert opinion of this witness, the death occurred due to injury No,1 resulting into the damage of lungs and vessels, due to haemorrhage. This injury was in ordinary course of nature sufficient to cause the death. All injuries were declared to be ante-mortem and injury Nos.1 and 2 caused by fire-arm and 3 and 4 caused by blunt weapon. It was also declared that the time between the receipt of injury and death was one hour and between death and post-mortem examination was within 24 hours. He has proved post-mortem report Exh.P.I. He has also proved returning of injury statement Exh.PJ, inquest report Exh.PK and last worn clothes including two jarssies and a mufflar and chappal worn by the deceased. Hasrat Mohani (P.W.7), S.I.P., Police Station Rawat produced original register of F.I.R. Of Police Station Rawat containing original F.I.R.
No,175 dated 19-12-1988 registered by him on the statement of Sajid Mehmood Bhatti under section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 411, P.P.C. Which F.I.R. Is Exh.PL. He has deposed that the complainant in the said case identified appellant in the Court to be the culprit in the said case and after investigation he challaned appellant before the Court of Ilaqa Magistrate, Rawalpindi where it was pending. Muhammad Hussain (P.W.8), P.C., has proved escorting the dead body from the spot to mortuary for post-mortem examination. He has proved further that the post-mortem was conducted on 20-12-1988 and on 21-12-1988 he took five sealed parcels from A.S.I. Jamshaid Ahmed (P.W.9) and went to Lahore where he produced two sealed parcels in the office of the Chemical Examiner and three sealed parcels containing pistol, empty and lead bullet in the office of Forensic Science Laboratory, intact. Muhammad Jamshaid (P.W.9) has deposed that on 19-12-1988 Raja Muhammad Arif (P.W.11) Inspector handed over to him five sealed parcels for keeping in the Malkhana intact and on 21-12-1988 he handed over the same to Constable Muhammad Hussain intact. These parcels were received back from Chemical Examiner and Forensic Science Laboratory after analysis and kept by him in the Malkhana. On 12-8-1989 he was directed to hand over, three sealed parcels to Constable Muhammad Riaz (P.W.10) for taking the same to the office . Of Chemical Examiner. Muhammad Riaz (P.W.10), P.C., has proved that on 12-8-1989 he received three sealed parcels for taking to Lahore and production of the same in the office of the Chemical Examiner for blood-grouping. Muhammad Arif (P.W.11), Inspector of Police, S.H.O. Police Station Sihala, complainant and Investigation officer of the case has deposed that at 11-30 p.m. On 18/19-12-1988 he was present in front of Mir Dad Hotel, G.T Road on patrol duty alongwith other personnel of police. Amjad Masoud came to him and informed him about appellant being in suspicious condition in Taxi No,IDB-4049. Further deposition is on the same lines as deposed by Amjad Masoud (P.W.4) and Amir Dad (P.W.5). He has proved personal search of appellant and search of taxi and recovery of a .30-bore unlicensed pistol, and articles mentioned in recovery memos. Exh.PG and Exh.P.F. He has proved drafting of complainant Exh.PN under sections 13-20-65, A.O. And according to him at the time of his deposition this case for keeping unlicensed arms was pending against the appellant in the Court of Assistant Commissioner, Islamabad. In the present case he interrogated appellant and at about 5-30 a.m. Sohbat Khan, Rehmat Khan (P.W.2) and Sher Khan reached the petrol pump in search of the incriminating taxi and the deceased. Sher Khan (given up P.W.) stated that the taxi belonged to him and Jamshaid (deceased) was his driver. Thereafter appellant led them to Suwan Camp near the turn of Kahuta and pointed out the dead body lying in the bushes at a distance of 12/13 feet from the road. He prepared injury statement of the dead body Exh.PJ and the inquest report Exh.PK and sent the dead body for post-mortem examination. He had recovered a lead bullet P-1 from under the left arm pit of the dead body and an empty cartridge of .30 bore P-2. For both these recoveries memos. Were prepared as Exh.PB and Exh.PC. He has further proved that on 20-12-1988 he took the draftsman to the spot, who on his direction and on the pointation of the witnesses, prepared site plan Exh.P.A.
And Exh.PA/1 who handed over the same to him on 25-12-1988. He has also admitted that the incriminating Taxi No,IDB 4049 was given on Superdari to the owner under the orders of the Court.
5. We have heard the learned counsel for appellant, petitioner and State. The counsel for appellant has mainly relied on the mutually annihilating three versions of the story of prosecution which generate doubts in the case. He has also contended that there are material and substantial contradictions among the depositions of P.Ws., which creates strong doubts in the case; that the F.I.R. Has been registered after investigation which is in violation of sound legal principles, that had the appellant been imbued with mens rea, he would have easily escaped when Amjad Masoud (P.W.4) peeped inside the taxi and noticed blood on its front seat and that he would have preferred to get the gasoline from another petrol pump nearby where no police was available and that he would have hired a taxi which could have brought to him more sum of money rather than the smaller old taxi; that the alleged location of seating of the appellant and deceased within the taxi is such that it would have been very easy for the appellant to have targeted back side of the skull of the driver rather than the most difficult way of killing him and then the blood would have been on the driver's seat which is missing and that in case the seriously injured driver had fallen on the adjoining seat leaving the marks of gushing out blood on the covering cloth of seat, and that he was then taken out of the taxi with the flowing blood by the appellant then in natural course the clothes worn by appellant on the upper half of his body would have been soaked with blood but it is not so; that given up Sher Khan P.W. As unnecessary creates presumption within the meaning of illustration (g) to Article 129 of Qanoon-e-Shahadat Order 1984 that had he been produced his evidence would have been unfavourable to the prosecution who withheld him and in the circumstances of the case; that the opinion of experts on medical, forensic, ballistic sciences and the evidence of a chartered surveyor is in direct conflict with the evidence of non-ocular allegedly res gestae material witnesses Amjad Masoud (P.W.4) and Amir Dad (P.W.5) which circumstance makes the whole case doubtful as the res gastae evidence under such circumstances is always considered to be either illusory or malicious; that the police has overacted maliciously in roping the appellant in another case of the robbing of another car and in recovery of dagger and blood- stained Pajama only to prove that the appellant was a habitual offender as a raw youth of 18 years plus some months on the date of occurrence; that Exh.PE (complaint/Murasila) contains alleged first inculpatory statement before I.O. (P.W.11) in the presence of 3 police constables and 3 independents. At the trial two police constables were not produced and two independent witnesses were given up and the remaining 3 witnesses i.e, P.Ws.8, 2 and 11 have not said a single word about this inculpatory statement-in-custody which is the foundation of the entire case and under such circumstances this foundation stands crumbled, that this is a case of blind murder in which self-immolating inculpatory statement before I.O. And in custody having no locus standi has been denied by the appellant and an exculpatory statement in'the trial Court is more probable in the circumstances of the case; that in case story of prosecution is placed in juxtaposition with the version of defence, the defence rings true; that the prosecution failed in obtaining a blood- grouping report from serologist in spite of its efforts twice; that Rehmat Khan (P.W.2), Amjad Masoud (P.W.4) and Amir Dad (P.W.5) are in direct conflict among each other on material points giving rise to doubt in the case; that pistol and crime empty were sent together, hence the positive report of Ballistic Expert is of no consequence; that without identification parade, the appellant was challaned in another case of robbery committed on 17-5-1988 in which he was acquitted on 3-5- 1994 by the Court of Magistrate Ist Class, Rawalpindi which fact itself is indicative of the mischief and malice working against a raw youth having been brought up from childhood in the cultural atmosphere of England where the working of police is more civilsed and sophisticated in comparison to the police of Indo-Pakistan Subcontinent where dishonesty and mischief of police and prosecution has generated lawless society; that no evidence of Harabah is available on the record; that the sentences cannot run consecutively under the law; that in any case the appellant was a raw youth at the time of occurrence and therefore, under the provisions of the principles of law developed by the superior Courts he cannot be awarded with the capital punishment.
' The learned counsel for petitioner has contended that the murder of the deceased is a murder of a poor self-earning raw youth; that the guilt against appellant is proved beyond all reasonable doubt and the normal punishment for him under section 302, P.P.C. Is death; that the lesser penalty on the ground of adolescence of appellant is not warranted in law; that substitution of an innocent person in place of actual culprit is extremely rare specially when accused is a single person; that the onus of proving legal possession of the incriminating taxi and pistol with cartridges, dagger, blood-stained Shalwar etc. Was on the appellant in which he had utterly failed; that the version of defence is not supported by evidence whereas the version of prosecution is supported by material independent witnesses like Rahmat Khan (P.W.2), Amjad Masoud (P.W.4) and Amir Dad (P.W.5); that this is a case of culpable homicide with robbery for which the only punishment is death; that the purpose of visting Pakistan was smuggling of lethal narcotics for which appellant was raising funds through robbery of vehicles. The learned counsel for State has supported the impugned judgment.
6. At the outset we have pondered about the first and main contention of the counsel for appellant which concerns three versions of the story of prosecution which are annihilating each other and create strong doubts in the version which has culminated into the finding of the guilt of the appellant, Admittedly this is a case of a blind murder and entire evidence in all the three conflicting mutually annihilating versions of the prosecution have their basis on res gestae and the circumstances. The first version of the story of the prosecution, in the words of Muhammad Arif (P.W.11), Investigation Officer, is reproduced as below: ' "I interrogated the accused. At about 5-30 a.m. Sohbat Khan, Rehmat Khan and Sher Khan P.Ws., reached the petrol pump who were in search of their Taxi and Jamshaid Driver of the Taxi. All of them identified Taxi No,IDB 4049. Sher Khan P.W. Stated that the said Taxi belonged to him and Jamshaid Khan was his driver. In their presence, the accused disclosed that he could lead to the recovery of dead body of Jamshaid Khan deceased. Thereafter, the accused led the police party in the presence of the aforesaid persons to Swan Camp near the turn of Kahuta and pointed out the dead body of Jamshaid Khan deceased, which was lying in the bushes at a distance of 12/13 feet from the road. The dead body of Jamshaid Khan deceased was identified by Rehmat Khan, Sohbat Khan and Sher Khan P.Ws. I examined the dead body and prepared injury statement, Exh.PJ alongwith the inquest report Exh.PK and sent the dead body under the escort of Constable Muhammad Hussain for post-mortem examination. On examination of the dead body, lead bullet, P-1 was found under the left arm pit of the dead body. It was made into a sealed parcel and taken into possesson vide memo. Exh.PB. I took blood-stained earth from the spot and made into a sealed parcel vide memo. Exh.PD/1 also took empty cartridge of .30 bore P.2 and made it into a sealed parcel vide memo. Exh.P.C. I prepared complainat Exh.P.E. (subject to objection by defence counsel regarding the admissibility of P.E as it contains the confessional statement of the accused before the police. That too when he was in the custody of the police), and sent the same to P.S. Sihala for registration of a case under section 302, P.P.C."
' Since Exh.PE to which a reference has been made in the above-mentioned piece of evidence of the Investigation Officer, clarifies the first version of the prosecution, it is reproduced as under: {{URDU TEXT}} ' This first version is further elaborated by Amjad Masoud (P.W.4) in the following words: ' I filled up the feul in Taxi. Thereafter the accused tried to start the Taxi but he could not start. After about 10/15 minutes I saw him much worried. I went forward in order to help him, I saw the adjoining seat of the Driver blood-stained. I suspected him. I saw that one Inspector Police was present at the Hotel of Mir Dad which is situated at a distance of about 16 yards, from the petrol pump. I went to the hotel, and informed the Inspector Police present there about the situation.
' During cross, P.W.11 has also replied to certain suggestions to prove the first version in the following words: ' I carried out the interrogation of the accused at the petrol pump, when the accused remained seated in the Taxi. Subsequently, I took him outside the Taxi when I seized his pistol. I had already interrogated for about 4/5 hours, the accused at the petrol pump, when the complainant party i.e, Rehmat Khan, Sher Khan and Sohbat Khan P.Ws. Reached there. I took about one hour and thirty minutes in taking into possession the illicit pistol, other articles from the different parts of the Taxi and the preparation of complaint under section 13/20/65, A.O. And its despatch to the police station and the preparation of the sealed parcel as well. Few minutes before the arrival of Sohbat Khan, Sher Khan and Rehmat Khan P.Ws., the accused had already disclosed about the presence of the dead body, and he also made the same disclosure in their presence as well. When for the first time this disclosure, relating to the dead body was made, at that time, Amjad Masoud and Mir Dad P.Ws. Were present with me.
' Now it stands fully clarified that the first version of the prosecution regarding modus operandi of the culpable homicide amounting to murder is that the appellant had asked the driver of Taxi No,IDB-4049 to stop the taxi and get out of the taxi on the main G.T. Road near Suwan Camp, but on the refusal of the driver he shot the driver with a .30-bore pistol inside the taxi which taxi was not stopped and was naturally, in the state of movement. The injured driver was then taken out of the taxi and thrown on a side of the main G.T. Road who died later on, and according to the expert evidence of Dr. Ali Bakhtiar (P.W.6) the time between the receipt of injury and death was one hour.
' This version of prosecution stands falsified by another version emerging from the very evidence produced by the prosecution, As is evident from the piece of deposition of Muhammad Arif (P.W.11)
I.O., as quoted above, he had taken the draftsman to the spot on 20-12-1988 who had prepared the site plan Exhs.PA and PA/1 on his direction and on the pointation of witnesses. When perused Exh.P.A indicates that point No,1 is the place where the dead body of Jamshaid was lying in the North- South position in a pool of blood. Stained grass and earth was obtained from there and it was sealed and sent to the Serologist.
' The report of Serologist about earth was that it was stained with human blood vide Exh.PU. Point No,2 in the site plan (Exh.PA) is the place from where one empty ejected by a .30-bore pistol was recovered. The distance between points Nos.1 and 2 according to the scale indicated in the plan comes to less than six feet. To this effect is the deposition of P.W.11/1.0. Who has admitted that the empty was found lying at a distance of 6/7 feet on the southern side of the place of dead body which was a Kacha side of the road and vehicle could not proceed to the place from where the dead body was recovered. Rehmat Khan (P.W.2) has deposed that the empty cartridge was lying at a distance of 2/3 feet from the dead body. All these details are indicators to the fact that the deceased was shot at from the close range from point No,2 which was on the southern side of the standing position of the deceased and on the receipt of a single fatal shot he naturally fell in a position of opposite direction. Hence on the recovery, the dead body was lying in North-South position. Shot from the close range as proved by Exh.PA is, completely corroborated by the medical evidence on the record and the established principles of Forensic Sciences. Dr. Ali Bakhtiar (P.W.6) has proved that a single entry wound right shoulder one c.m. In diameter had its edges with inverted margins burnt. Modi in his classic on Medical Jurisprudence and Toxicology is giving his expert opinion in chapter on wounds in the following words: "Distance of the Fire-arm--If a fire-arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tatooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hair is singed and the clothes covering the part are burnt by the flame".
' Taylor in his classic on the Principles and Practice of Medical Jurisprudence has expressed his expert opinion in this regard in chapter on wounds and their interpretation as under:-- "Close contact.--In these wound by definition the muzzale is held in close contact with the skin. The projectile or projectiles, gases of the propellant charge under great pressure, unburned powder and any wads, will all enter the body. If the gun is fired into a body cavity such as the chest or abdomen the cavity will contain the gases, even if there is no exit wound, and the entry wound will be circular. If, however, there is a plate of bone beneath the entry wound (i.e,, the forehead) the gases will expand between the skin and the bone enlarging, splitting and everything it.
' The wound, therefore, is stellate, larger than the diameter of the barrel and the skin is blackened on its inner side by powder and carbon.
' Parikh in his textbook of Medical Jurisprudence and Toxicology describes his opinion in Section III of the said book: ' "Blackening is due to soot and represents a near range of discharge while smudging may be present even in distant ranges.
' In a near shot, that is, with the range of powder blast but outside the range of flame so to say within 1-2 feet in case of hand guns and more in case of other weapons (see table on page-275) the deposit of soot and tattooing is spread out over a larger area but there is no signing of hair or charring of the skin and the entry wound (opening) has the appearance of a distant shot.
' Dr. S. Siddiq Hussain in his Textbook of Forensic Medicine and Toxicology at page 134 (Pub, Carvan Book House, Katchery Road, Lahore, 1989) is writing: ' "Discharge at 6-12. Effect of hot gases is lost. So there is no tearing of skin wound is round and of the size of bullet, edges, inverted and surrounded by a zone of varying, blackening and tattooing, there is little burning only a grease ring due to oil and graphite is likely to be found. Clothing may show blast damage."
' Keeping in view this evidence, second version of the prosecution as it comes up is that the deceased was shot at from close range in an area where vehicle could not reach and at least 15 to 20 feet away from the main G.T. Road where the incriminating taxi was left and in-between the main G.T. Road and point No,2 a Katcha Bruum (i.e, unmetalled rough surfaced path for pedestrians) of the breadth of 10 feet was there vide site plan Exh.PA/1. A note has been left in the end of site plan by the draftsman in the following words: {{URDU TEXT}} ' According to the medical evidence of Dr. Ali Bakhtiar (P.W.6), the internal injuries on the dead body were of such a nature that, inter alia, pleura, upper lobe of right lung and blood vessels were punctured including superior venacava just before the arch of aorta. The injuring single killer bullet had pierced through the entire chest. Such type of injuries are termed as extremely dangerous due to penetration of vital organs, blood vessels and destruction of tissues by Dr. S. Siddiq Hussain at page 137 of his book cited above. Modi is writing, "Lungs"--Wounds of the lungs may be immediately fatal from profuse haemorrhage, or from suffocation due to respiratory embarrassm ent on account of the presence of blood in the pleural cavity or in the air-passages, or may result in death subsequently from septic pneumonia. They may be produced by penetrating wounds of the chest caused by a cutting or stabbing instrument, by the sharp fragments of a fractured rib, or by a projectile from a fire-arm." "Blood Vessels:--Wounds of the aorta or the pulmonary artery are rapidly fatal. Wounds of the smaller arteries may prove fatal on account of profuse bleeding. Wounds of the large veins, especially of the neck, chest, axilla or groin, may result in death from the air entering the blood and consequently passing into the right side of the heart.
Spontaneous aortic raptures are often accociated with sudden fall of temperature. A large artery like femoral or brachial may get localised arterial spasm following its contusion or laceration which accompanies a limb fracture and may persist for a day or two and may later on result in ischaemic contraction of necrosed muscles."
' Under such conditions, it was impossible for deceased to have remained conscious for a single minute immediately after the receipt of the only killer bullet. If so then the counsel for appellant has correctly brought into the notice of this Court that the deceased had no occasion to run here and there in the ditches and Katcha bruum of the width of 10 feet. Rehmat Khan (P.W.2) has admitted during cross that the dead body was lying at a distance of 15 feet from the metalled road. The conflict with the first version of the prosecution which arises here is that where from that blood came which was seen by Amjad Masoud (P.W.4) as a first person on the adjoining seat of the driver. After all blood is not a volatile material to have flown from point No,1 of the site plan and after having travelled in the air at least for about 15 to 20 feet got affixed on the seat adjoining the driver's one. Under what circumstances then the adjoining seat of driver was soaked with blood shall be dealt with in this judgment later on. At this moment we are inlined to quote from a Reference Book on Forensic Science edited by Cyril H. Wecht, Vol.1, New York, 1991, para. No,1.01. It reads: ' "Admissibility of Expert Opinion.--Expert testimony has become such an important factor in many trials, both civil and criminal, that rulings on the admissibility of such testimony often determine the outcome of the case."
' Another conflict between first and second versions of the prosecution is also based on the expert opinion of Dr. Ali Bakhtiar (P.W.6) and the complaint (Exh.PE). In the complaint and other evidence on the record it has been alleged that after having injured the driver in the taxi, who had fallen on the adjoining seat leaving the traces of blood, he was dragged out of the taxi by the appellant and was being dragged from Main G.T. Road on the rough stony surface of Kacha Bruum up to point No,1 of the site plan for about 15 to 20 feet and then the injured was thrown in the low lying small ditch. This dragging on the rough stony Katcha Bruum should have caused abrasions and or bruises or contusions on' upper and lower parts of the body of the injured who died later, but the evidence of Dr. Ali Bukhtiar (P.W.6) is declaring such type of external injuries which cannot be the result of dragging. Injury No,1 is a bruise on the top of the skull on the left side, 1/2 inch diameter and is the result of the fall inside the ditch at point No,1 of the site plan. Injury No,2 is a bruise on the left side of face temporal region two-inch diamerter and is again not resulted due to dragging of the body but due to fall at point No,1 supra. Injury No,3 is swelling below right eye with bruise 0-25 inch length and it has no nexus with dragging. Injury No,4 being blood below right nostril is the result of the final struggle of the dying body for the retaintion of animation. Injuries Nos. 5 and 6 are the result of the single fatal shot which are entry and exit of the killer bullet. Injury No,7 is blood clot below temporal region one inch diameter and is caused by Injury No,1 in view of the principles of forensic sciences. Modi is writing: ' "Bruises or contusions are injuries which are caused by a blow from a blunt weapon, such as a club (Lathi), whip, iron bar, stone, ball; fingers, fist boots, etc, or by a fall or by crushing or compression. These are accompanied by a painful swelling and crushing of tearing of the subcutaneous tissues without solution of continuity of the skin. Some bruises are patterned. The swelling is due to the rupture of the small subcutaneous blood vessels producing in the cellular tissues extravasation of blood, which is known as eechymosis. The term effusion of blood is ordinarily limited to extravasation of blood in a pleural cavity or a joint cavity Haematomas are formed when large blood vessels are injured."
' Even the inquest report is silent about any injury resulted due to dragging. Consequently it is proved that no dragging had taken place and the first version of the prosecution is falsified even on this count.
The conflict between the two versions of prosecution is apparent. But there is emerging a third version as well if the Inquest Report (Exh.PK) is read in conjunction with other evidence produced before the trial Court. Muhammad Arif (P.W.1), Investigation Officer, has admitted during cross as under: ' "I left the petrol pump for the place of recovery of dead body, at 5-30 a.m. And reached within 15/20 minutes, there. I had gone into the factory, which is at a distance of 150/200 Gaz from the place' of recovery of dead body, but found none present over there, and the factory was closed. I have not mentioned this fact in the Ziminies of this case."
' This piece of deposition is showing that the Investigation Officer had recovered dead body by about 5-45 a.m. On 19-12-1988. According to Rehmat Khan (P.W.2), he alongwith his companions Sohbat Khan and Sher Khan (given up P.Ws.) reached the petrol pump at 6 a.m. In search of the missing taxi and driver and found the 'taxi there. Appellant then led them alongwith police party for the recovery of dead body. His statement was recorded concerning the recoveries of dead body, empty cartridge etc. At 7/7-15 a.m. At the spot of the recoveries. This piece of deposition indicates that the Investigation Officer is incorrect in deposing that the dead body was recovered by about 5-45 a.m. In fact it was recovered about one hour later around 6-45 or 7 a.m. Be it as it may, but this issue is clear that the dead body was recovered at least 9 to 10 hours after the death of the deceased in case any one of the two versions of the prosecution as discussed above is correct.
Now it was a chilling night of 18/19 of December, 1988 in the hilly area of Pothohar where in an open ditch the dead body was lying for about 9 to 10 hours as the deceased must have died within one hour after the receipt of injury according to the medical evidence mentioned above. If so then the Inquest Report (Exh.PK) prepared by I.O. Himself after the recovery of dead body at 8 a.m. On 19-12- 1988 vide column No,3 of the inquest report is an index in its column No,11 for the third version of the prosecution. This column shows that at the time of preparation of Inquest Report, the blood of the dead body was in the liquified state and had neither solidified nor calcified nor clotted and in a cold chilling night in an open hilly area where even water freezes. It is an established principle of medical jurisprudence that arterial blood is always shod during life as blood pressure in arteries falls to zero after death. To clarify this principle, Taylor in his "Principles and Practice of Medical Jurisprudence" cites an example in sub-chapter "Post-mortem Bleeding" as under: ' "A Police Officer, thrown at night from his bicycle by a non-stop car, struck his head on the ground and lay unattended. A second car ran over the victim some few minutes later before the driver had time to avoid the body. Two groups of injuries could be detected:
1. Injuries to the right elbow, right shoulder and head from which there was considerable extravasation of blood including the inhalation of blood from the nose injury into the deepest recesses of the air passages.
2. Crushing injuries to the middle of the trunk caused by the passage of a wheel and resulting in injuries to the mesentery and right kidney amongst other. None of these injuries were accompanied by bleeding to anything like the extent of the injuries in (1). It was, therefore, obvious that death from the head injuries had taken place before the second car had run over the body."
' It signifies that the deceased was still living and undergoing near death experience (NDE) at the time he was recovered as the blood was still in a liquified form and the blood pressure was still present in the arteries and capilleries, which is the result of heart beat howsolow the cardiac rythm may be. The type of injuries on the body then suggest that the deceased was shot about one hour earlier i.e, somewhere between 6-30 and 8 a.m. On 19-12-1988, but the appellant was in the police custody since 11 or 11-30 p.m. Of 18-12-1988. The third version of prosecution emerges, therefore, in a manner that it was not the appellant, but someone else who had murdered the deceased earlier in the morning of 19-12-1988. Out of these three versions of the prosecution which are apparently in conflict and are annihilating each other, and the first one which has been believed in the impugned judgment and two others have lost the sight of trial Court which one is to be believed? The one believed by the trial Court has its locus standi in the circumstantial evidence only.
It is settled law that circumstantial evidence must be a combination of facts creating a network through which there is no escape for the accused, because the facts, taken as a whole, do not admit of any inference but of his. Guilt. In other words, circumstantial evidence should point inevitably to the conclusion that it is the accused and the accused alone who is the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused.
Suspicion, however strong, cannot take place of legal evidence nor can form the basis of a conviction for such a major charge as the murder. In this context citation PLD 1960 Lahore 71 has a persuasive value for us. It reads at paras. No, 14 and 15 as under:--
14. "The third piece of evidence against the accused is the recovery of the blood-stained articles from his quarter. If the extra-judicial confession is eliminated, then the mere fact that something lying in the quarter of the appellant was stained with human blood will not link the accused with the murder.
15. The conduct of the accused has influenced the learned Sessions Judge to a considerable extent in arriving at the conclusion that he was guilty of his wife's murder. He made a reference to the evidence of gangman Muhammad Hussain (P.W.7) that the accused and the wife were always quarrelling and had in fact quarrelled on the 2nd of March, 1958, one day before Mst. Sheedan disappeared. His conduct that when he was asked to make a search for his wife he replied that she was in the habit of going away like this and then returning, was also taken as an incriminating circumstance against the accused-appellant. Muhammad Hussain (P.W.7) has some sort of enmity with the accused because the woman who was eventually married to the accused was first promised to him. All these facts, even if they be considered as correct, would at the most lead to a suspicion against the accused appellant, but suspicion however strong, cannot form the basis of a conviction for such a major charge as the murder."
' Their lordships at the apex Court have enunciated following principles at placentia B and C cited as 1969 SCMR 647 which are applicable on the present case while considering first version of the prosecution:-- ' "These recoveries by themselves, without any reliable evidence as to how the occurrence took place, cannot be regarded as evidence establishing the case against the appellants beyond all reasonable doubt. These recoveries, by themselves, even put at the highest can raise only a suspicion against the appellants, but suspicion, however, strong, cannot be made the basis of a conviction."
In the present case, admittedly there is no eye-witness of the occurrence, and thus no direct evidence that it is the appellant alone who has F definitely committed the murder of Jamshed. The prosecution relies on certain pieces of circumstantial evidence in support of its plea in its first version that the appellant herein is the real murderer of Jamshed. The main question, therefore, that falls for determination is whether the pieces of circumstantial evidence, relied upon by the prosecution, point inevitably to a definite conclusion that it is the appellant who has committed the murder of Jamshed.
7. It has been contended by the counsel for appellant that there are material and substantial discrepancies so far as the first version of the G prosecution is concerned which has been believed by the trial Court. A chart of such discrepancies is reproduced as under:-- DISCREPANCIES 1Muhammad Akram,P.W.1, draftsman, stated that he had not stated the name of the deceased as well as murderer in the site plan Exh.P.A. and Exh P A /1.Exh.P.A. explicitly showed the names of the deceased and accused/appellant.
2Rehmat Khan, P.W.2, stated that the place of recovery of dead body was 250 feet towards Rawalpindi from Sihala.The place a of recovery of dead body is 250 feet short of Kahuta Road on Rawalpindi Lahore, G.T. Road, and P.S. Sihala is 4 K.M. away from place ofrecovery of dead body.
3P.W.2 stated that a lead bullet was recovered from the left arm pit of deceased and it was blood stained.The said lead bullet was never sent to the office of the Chemical Examiner or -- to serologist for blood grouping.
4Amjad Masoud, P.W.4, stated that the Police left the petrol pump at 5/5-30 a.m., and took the accused and the taxi with them.P.W.2 Rehmat Khan stated that they reached at the patrol pump at 6/6-30 a.m. and saw the police, taxi and the accused in the custody of police.
5P. W.4, Amjad Masoud statedthat he detected the blood stains on the seat cover by peeping into the taxi.He also statedthat electricity was off and inside light of the taxi was also off, though the generatorwas on.
6P.W.2 Rehmat Khan stated that they reached at the petrol pump at 6/6-30 a.m.P.W.11 Muhammad Arif statedthat they reached at 5-30 a.m.
7P. W.2 and P. W.11 stated that accused was sitting in the taxi when theyapproached him.P. W.5 Mir Dad stated that when they came, and I.O.
(P.W.11) started investigation, he was standing near the door of the taxi.
8P.W.4, Amjad Masoud, stated that he had been working in thepetrol pump for the last 2 years.He did not know how many boys were working in the Hotel of Mir Dad, which was only 16 yards away from petrol pump, and owned by Raja Mir Zaman, owner of the petrol pump.
9P.W.S. Mir Dad stated that the accused was immediately handcuffed the moment Police arrived there.P.W.11 stated that he started interrogation while the accused was still sitting in the taxi he never said that he hand cuffed him immediately.
10P.WA Amjad Masud stated that the accused came to the petrol pump at 10-30 p.m.P.W.5, Mir Dad stated that at 11-30 Amjad Masoud came to my hotel to inform the police, and Police hadarrived 5/10 minutes prior to the arrival of Amjad Masoud.
11P. W.4. stated that no petrol pump falls in the way from our petrol pump to turning point of Kahuta.There are atleast two petrol pumps.
12P.W.4.statedthat Police remained at the petrol pump up to 5/5- 30 a.m.P.W.5 Mir Dad stated that he left the police and the accused at 12/12-30 p.m. and police remained at the spot for 2-1/2 to 3 hours. It means Police remained at the spot up to 3-30/4.00 a.m.
13P.W.4, stated that he saw one Police Inspector present at the hotel.P.W.5 stated that M. Arif Inspector and three Constables were there. He further stated that they were sitting on the cots in the open.
14The post-mortem was conducted by Dr. Ali Bakhtiar P.W.6 on 19-12-1988 at 2-30 p.m., as per his statement.P.W. 11, I.O. of the case stated that the post-mortem was conducted on 20-12-1988.
The same was deposed by P.W.8 Muhammad Hussain Constable as well.
15P.W.6 Dr. Ali Bakhtiar stated in his deposition that the time between death and post-mortem was within 24 hours.According to the statements of P.W.11 and P.W.8 as the post-mortem was conducted on 20-12-1988, the time between the death and post- mortem could not be within 24 hours.
8. Another contention for the appellant is that according to the complaint Exh.P.E. The appellant had made inculpatory statement before the I.O. (P.W.11) in the presence of 6 other persons, out of whom 3 were police constables, namely, Muhammad Hussain, Muhammad Shafi and Sakhawat Ali, whereas the remaining three were Sher Khan, Rehmat Khan and Sohbat Khan. At the trial, Muhammad Shafi and Sakhawat Ali, Constables, were not produced. Sohbat Khan and Sher Khan were also given up as unnecessary vide statement of APP, dated 17-5-1989. Muhammad Hussain Constable has appeared as P.W.8, Rehmat Khan as P.W.2 and Inspector Muhammad Arif, I.O. As P.W.11. None of them has said a word in their statement regarding the alleged confessionsal/inculpatory statement of the appellant which was the foundation of the first version of the story of the prosecution in Exh.P.E. Moreover, the F.I.R. Having been registered, after commencement of investigation, there is no F.I.R. In the eyes of law.
9. Another limb of the argument is that admittedly no eye-witness of the occurrence is there. It is settled that the prosecution has to prove its case beyond reasonable doubt, irrespective of the truth or otherwise of the defence version. The prosecution in the instant case having failed to produce any evidence in support of the alleged confession of the appellant and his own statement at trial being exculpatory the appellant is entitled to acquittal.
10. Another line of argument adopted by defence is that when the prosecution story as per first version and the defence version are put in juxtaposition, inherent discrepancies are found in the prosecution story, whereas the defence version rings true, and also finds support even from the prosecution evidence as will be seen from the following:--
(i) "The occurrence took place on Rawalpindi Lahore G.T. Road, 250 feet short of the junction wherefrom Kahuta Road starts. The petrol pump of Raja Mir Zaman and brothers is situate at a distance of about 5/6 miles from the place of occurrence. According to the admission of Rehmat Khan P.W.2 there were two petrol pumps at a distance of 200 yards from that of Raja Mir Zaman & Brothers towards Rawalpindi, and that Petrol was also available from both these Petrol Pumps.
Therefore, if the appellant was only to get fuel he could very well get it from either of the said two Petrol Pumps. At any rate, if the appellant had a guilty mind, and was such a desperate person that he could commit a highway robbery all alone at an age of 18 years he would not have stopped at the Petrol Pump of Raja Mir Zaman & Brothers where the police party was already sitting in open on the cot nearby on the Hotel of Amir Dad (P.W.5) at a distance of only 16 yards.
(ii) It is prosecution's own case per first version that police was already present on the Hotel of Mir Dad (P.W.5) as will be seen from the following:--
(a) "I saw that one Inspector Police was present at the Hotel of Mir Dad which is situated at a distance of about 16 yards from the petrol pump" (Amjad Masoud P.W.4).
(b) When Amjad Masoud P.W. Came to our hotel, the Police Officials had arrived there about 5/10 minutes earlier. The Police Officials were sitting outside the hotel." (Amir Dad P.W.5).
(c) "I was sitting on the counter outside my hotel and the police was sitting there in front of me. I had provided the tea to the Police Officials." (Amir Dad P.W.5).
(iii) It is also the case of prosecution itself that the appellant made no attempt to escape or run away even after Amjad Masoud P.W.4 had allegedly peeped into the Taxi and had noticed blood on the front seat adjacent to that of the driver. In this context, he deposed:-- ' "The accused did not try to run away from the Taxi after I had peeped into it. On the back of our petrol pump there is a vacant plain (should be plot). It was dark at that time as electricity was off, but Generator was on."
' Thus, the defence version that while going to Rawat Police Station to inform the Police about the incident, upon seeing the Police present at the Hotel of Mir Dad, the appellant himself stopped and apprised the police of the incident, is more probable than the prosecution version.
(iv) According to Amjad Masoud (P.W.4) "Police remained at petrol pump till 5/5-30 a.m." Amir Dad (P.W.5) deposed that he had "left the petrol pump and the Police at about 12/12.15 at night" and that the "Police remained there for 2-1/2/3 hours" meaning thereby that police remained at the petrol pump till about 3-15 at the maximum. According to Muhammad Arif, Inspector I.O. (P.W.11) he left the petrol pump for the place of recovery of dead body at 5-30 a.m." But, according to Rehmat Khan (P.W.2) he alongwith Sohbat Khan and Sher Khan reached the petrol pump at 6-00 a.m. And saw the Taxi and Police. In this context, he deposed:-- ' "At about 6 a.m. We reached the petrol pump situated on G.T. Road, near Rawat towards Rawalpindi side. We saw the Police party there. We also saw the Taxi No,IDB-4049 belonging to Sher Khan on the petrol pump."
(v) Even with regard to the arrival of the appellant and the Police at the petrol pump, the prosecution version suffers from discrepancies. According to Amir Dad (P.W.5), Muhammad Arif, Inspector came to his hotel at 11/11-30 p.m., but according to Amjad Masoud (P.W.4), the appellant came there at 10.30 p.m. Muhammad Arif (P.W.11) says that it was 11.30 p.m. When he was informed and that the accused was already present at the petrol pump when he reached the Mir Dad Hotel.
' It is not believable that the appellant would have remained at the petrol pump for about one hour, without making good his escape even after Amjad Masoud had allegedly noticed blood stains on the front seat of the Taxi.
(vi) The version about blood stains on the front seat, adjoining that of the driver is also too preposterous to be believed as per prosecution's first version. If the appellant was sitting on the front seat and had asked the deceased therefrom to get down and on his refusal fired at him, deceased would have been hit on the left side and not on the right side.
' Even if the appellant had been on the rear seat, he would not have taken the risk of hitting on the right shoulder, when more vulnerable parts of the body like head were available to him.
' At any rate, the blood would have been on the driver's seat, not on the other seat, particularly when the deceased was wearing not only one, but two Jerseys, besides shirt.
' The defence vision that the deceased suffered injury during the scuffle with his companion appears to be more probable.
' But, if there was, in fact, blood on the front seat, adjacent to that of the driver, the possibility is that Jamshaid Khan was himself not the Driver but was companion of the Driver, and that is why he suffered injury on the right shoulder, and blood was also on his seat. This may be for another reason also. No driving licence was recovered from the deceased. It was dark night. The Driver and his companion were not known to the appellant previously. Therefore, the possibility that instead of the Driver, his companion was taken by mistake as the driver by the appellant cannot be ruled out.
(vii) The police tried its best to make out a fool proof case against the appellant. More than one attempts were made to ensure that the alleged blood on the Shalwar of the appellant had the same blood group which was of the blood on the seat cover of the taxi. For the purpose, parcels were sent twice, firstly, on 21-12-1998, on which Chemical Examiner gave his report on 24-12-1988 (Exh.P.Q.) and the Serologist on 23-1-1989 (Exh.P.T.) and secondly, once against on 12-3-1989 (Muhammad Jamshaid, Moharrir P.W.9) and Constable Muhammad Riaz P.W.10). The second report of Chemical Examiner is Exh.PS and of Serologist at Exh.PV. The reports are conspicuous by an absence of reference to blood grouping.
(viii) The Investigating Agency is guilty of padding and introducing false witnesses.
' According to Rehmat Khan (P.W.2) "In my presence the accused led to the place of recovery of dead body, i,e,, which is 250 feet towards Rawalpindi from Sihala." It is in the evidence that Sihala, according to F.I.R. Itself is at a distance of 4 k.m. From the place of occurrence. He is thus a false witness.
' According to P.W.2 when they reached the petrol pump at 6-00 a.m. The police and Taxi were still there, but according to all other witnesses, the police had left at least by 5-30 a.m. And while going had taken along the taxi as well.
' Again, according to Rehmat Khan (P.W.2) the Taxi was parked at petrol pump and 1/2 officials were left by the Police with the taxi. Amjad Masoud (P.W.4) categorically deposed that the police had taken away the taxi from the petrol pump.
(ix) Amjad Masoud (P.W.4) is also not a truthful witness. On the one hand, he deposed that he saw the adjoining seat of the driver blood-stained but when cross-examined he had to concede that "It was dark at that time as electricity was off" though he said that Generator was on. Again, to another question, he conceded that "The light inside the Taxi was off."
' Whereas it was candidly conceded by Rehmat Khan (P.W.2) that there are two other petrol pumps at a distance of 200 yards from their petrol pump towards Rawalpindi, this witness (Amjad Masoud P.W.4) told a blatant lie by saying that "No petrol pump falls in the way from our petrol pump to turning point of Kahuta."
' Amjad Masoud (P.W.4) was working at the petrol pump for the last 2 years which is just adjacent to the hotel. But, when asked, how many persons were working on the hotel, he said "I cannot tell as to how many persons worked at the Hotel of Mir Dad."
' According to this witness "when the police came towards the taxi, the accused was sitting inside the Taxi." But, according to Amir Dad (P.W.5) "when we reached the petrol pump, the accused present in Court was standing near the door of the Taxi."
' According to Amir Dad (P.W.5) "The accused was handcuffed, immediately, the moment Police arrived there." But, according to Muhammad Arif, Inspector, I.O. (P.W.11) "I carried the interrogation of the accused at the petrol pump, when the accused remained seated in the Taxi." Either of the two is a liar.
(x) The version of the accused/appellant that till evening of 19-12-1988, the name etc. Of the deceased were not known and for that reason the dead body could not immediately be sent to mortuary for post-mortem, and that the entire version about arrival of Rehmat Khan and his companions was false story, finds support from P.Ws. 8 and 11. In this context Muhammad Hussain (P.W.8) deposed that "Post-mortem was conducted on 20-12-1988". Similarly, Muhammad Arif (P.W.11) deposed: "However, the post-mortem was conducted on 20-12-1988."
(ix) Since the pistol and the crime empty were sent together, the positive report of the Ballistic Expert is of no consequence. The recoveries will have, therefore, to be excluded.
(xii) Mere recovery of weapon of offence is not sufficient for recording conviction for the offence of murder. In this case, defence version rings true.
(xiii)Doubtless, it is established on record that the appellant, a raw youth of only 18-1/2 years had been brought up in England. He landed in Karachi on 16-12-1988. To show that the appellant was a person of desperate character, he was involved in another case registered on 1912-1988 after the registration of the present case, for an offence of robbery alleged to have been committed on 17- 12-1988. In that case even Identification Parade had admittedly not been arranged. Thus, attempt had been made to falsely involve him in another case as well. He was acquitted from that case on 3-5-1994 by Magistrate Ist Class, Rawalpindi.
(xiv) The clothes, other belongings, air-ticket and papers etc., recovered from the two bags of the appellant establish beyond doubt that he had come on a visit to Pakistan. It was night time when he alighted from the Flying Coach. His version that when he hired the Taxi for his village, the Driver took another person with him is nothing but the whole truth. It is of common knowledge that drivers while travelling at night, do keep a companion with them.
(xv) The appellant had travelled from London to Karachi by Air. Then he travelled from Karachi to Rawalpindi. In Pakistan, checking is done at numerous places. It is not believable that he would have escaped checking throughout the country, if he was having illicit arms. The fact that he hired the Taxi immediately after his arrival shows that his plea that the pistol and cartridges belonged to the Taxi Driver is more convincing than to say that the appellant was having the illicit arms.
According to the appellant, the Taxi Driver and his companion both were Pathans. Their being armed with the pistol, which is of an indigenous make, is a possibility which cannot be completely ruled out, Particularly when they were ready to go to a far off place at night time.
(xvi) The appellant was a very handsome boy as is indicated by the passports. He had been in England. It is neither beyond imagination nor improbable that the Driver, who was a Pathan, could not resist the impulse of sexual lust, and therefore, expressed his desire to his companion who may be a God-fearing person and resisted, resulting in the untoward incident.
(xvii) If the appellant wanted to commit highway robbery, he could pick up a more safer place, off G.T. Road, after crossing Mandra towards Chakwal.
(xviii) There is no evidence of Harabah. The appellant's mere possession of taxi, in view of the explanation given by him, cannot constitute an offence.
11. One of the contention of the counsel for appellant is that the F.I.R. (Exh.P.E.) has been registered not only after the commencement of investigation, but almost the entire investigation preceded recording of F.I.R. Which contained a prepared story after deliberations amongst the police and the complainant party. F.I.R. Was recorded at Swan Camp at 7 a.m. On 19-12-1988 whereas appellant/accused was already in custody since about 11-30 p.m. Of 18-12-1988 and in the words of Muhammad Arif (P.W.11), I.O.:-- ' "I interrogated the accused at about 5-30 a.m., Sohbat Khan, Rehmat Khan and Sher Khan P.Ws.
Reached the petrol pump who were in search of their Taxi and Jamshaid Driver of the Taxi. All of them identified Taxi No,IDB 4049. Sher Khan P.W. Stated that the said Taxi belonged to him and Jamshaid Khan was his driver. In their presence, the accused disclosed that he could lead to the recovery of dead body of Jamshaid Khan deceased. Thereafter, the accused led the police party in the presence of the aforesaid persons to Swan Camp near the turn of Kahuta and pointed out the.
Dead body of Jamshiad Khan deceased, which was lying in the bushes at a distance of 12/13 feet from the road. The dead body of Jamshaid Khan deceased was identified by Rehmat Khan, Sohbat Khan and Sher Khan deceased was identified by Rehmat Khan, Sohbat Khan and Sher Khan P.Ws. I examined the dead body and prepared injury statement, Exh.PJ. Alongwith the inquest report Exh.PK and sent the dead body under the escort of Constable Muhammad Hussain for post-mortem examination. On examination of the dead body, lead bullet, P.1 was found under the left arm pit of the dead body. It was made into a sealed parcel and taken into possession vide memo. Exh.P.B. I took blood-stained earth from the spot and made into a sealed parcel vide memo. Exh.PD. I also took empty cartridge of 30 bore P.2 and made it into a sealed parcel vide memo. Exh.P.C. I prepared complaint Exh.PE (subject to objection) by defence counsel regarding the admissibility of P.E. As it contains the confessional statement of the accused before the police. That too when he was in the custody of the police and sent the same to P.S. Sihala for registration of a case under section 302, P.P.C."
' According to Amjad Masud (P.W.4) and Mir Dad (P.W.5) all investigation was completed before the according of F.I.R. Amjad Masud (P.W.4) is deposing:-- ' Police conducted all the formalities and proceedings at petrol pump--Police remained at petrol pump till 5/5-30 a.m. My statement was not recorded before the recovery. My statement was recorded at the spot prior to the statement of Mir Dad by the police. My statement was recorded at about 11-30/12-00 at night. Mir Dad P.W. Had left the petrol pump at about 12-00 mid-night for his hotel. The police had been completing the formalities till they remained present there at the spot.
By spot, he means petrol pump/hotel.
' Mir Dad (P.W.5) has deposed:-- ' "The accused was handcuffed immediately, the moment police arrived there. On the day of occurrence, I went to sleep at 12-30 at night. My statement was recorded by the police after the recoveries and the preparation of Fards. I left the petrol pump 'and the police at about 12-00/12-15 at night and the Police still continued completing its formalities. Police did not visit the petrol pump or my hotel in connection with this case thereafter.
' Thus, it is prosecution's own case that the investigation of the case preceded the recording of F.I.R.
Not only that investigation was completed at the petrol pump/hotel of Mir Dad on 18-12-1988 whereas F.I.R. Was recorded on the next day, after visiting the spot near Swan Camp, at 7.00 a.m.
Therefore, the F.I.R. Contained a prepared story concocted after due deliberations and settlement of the entire matter between the police and the complainant party/relations of the companion of the deceased who, in order to save their own man, falsely involved the accused in connivance with the police.
' In this context reliance has been placed and correctly on the following case-law.
(1) Ramzan v. State (PLD 1967 Lahore 588 at p.591): "It is now well-settled that the first information report recorded after the commencement of the investigation is a statement of a person before the police and inadmissible in evidence. Therefore, we hold that there is no first information report in the present case, the same being inadmissible."
(2) Nasim Akhtar v. State (PLD 1968 Lahore 841 at pp.843-44): "To begin with, we may say that it is apparent from the testimony of Barkat Ali P.W. That the first information report in this case was recorded at the spot after the investigation by Iftikhar Ahmed, A.S.I. Therefore, it being a statement before the police is inadmissible in evidence and cannot be taken notice of. This Court has already warned the Police Officers to make a departure from this uncalled for practice, but we are constrained to remark that in several criminal cases we notice the Police Officers, for reasons best known to them, follow this old practice of recording the first information report after the investigation of the case. This is bound to put the Courts on caution as a prepared story is recorded in the first information report
(3) Muhammad Ali v State (1971 PCr.LJ 1181): ' "The learned counsel for the appellant on the basis of the above facts argued that the case was fabricated by the police at the spot and that the late despatch of the dead body which admittedly reached Okara somewhere at midnight clearly shows that till late in the night on that day the prosecution were not sure of their case. The F.I.R. Was admittedly drawn at the place of occurrence and the dead body was not despatched because the prosecution first wanted to build up a case and then incorporated the same in the inquest report before sending the dead body for post- mortem examination. Xxxx It was sent for post-mortem examination after building up a case. This circumstance should be enough for rejecting the whole of the prosecution case."
' In view of these circumstances, we hold that there is in fact no F.I.R. In the present case.
12. It has also been contended that the recovery of blood-stained Shalwar (P.6) is fabricated by the police. If the accused/appellant, after causing injury to the deceased, had pushed and dragged him out of the Taxi as per the first version of the prosecution there could be no question of his Shalwar getting smeared with blood; his shirt could possibly get stains of blood. But even it be assumed that blood was there on the Shalwar, still there is an explanation available on record.
According to the accused after Jamshed had been hit by his companion, the accused had been trying to give support and aid to him. The Shalwar could have smeared with blood in this exercise.
Thus, even if it be assumed that Shalwar was smeared with blood, there is a reasonable explanation for the same available on the record.
13. Another contention for the appellant is that the recovery of empty and lead bullet are another fabrication of the prosecution to push forward its first version of the story. According to Rehmat Khan (P.W.2), the empty cartridge was lying at a distance of 2/3 feet towards northern side of the dead body. We have taken a judicial notice of the following facts proved from the evidence on the record:--
(i) Empty is not mentioned in the Inquest Report.
(ii) Empty is not mentioned even in the "Brief Facts".
(iii) It is not the case of the prosecution that there were more than one shots fired from the pistol.
(iv) It is not the case of the prosecution that the empty had necessarily to be ejected by the assailant:
(v) It has clearly been fired later on, because according to prosecution's own case only four live bullets were recovered from the magazine, where had the 6th gone, one having been fired and four recovered.
(iv) It is not mentioned even in Exh.P.E. Though recorded after entire investigation was almost completed.
(vii) Since pistol, empty and lead bullet had all been sent together, even the positive report of the ballistic expert is of no avail to the prosecution, in particular when as per case of prosecution itself, pistol was recovered on 18-12-1988 at the petrol pump/hotel whereas the empty was recovered on 19-12-1988 from the spot in Swan Camp, and the lead bullet from the person of the deceased. In this regard reliance has been placed on PLD 1968 Lahore 869 wherein the principle laid is crime empty sent to expert after recovery of weapon of offence. Recovery, held, of no value."
(viii) If firing had taken place inside the Taxi as the first version indicates, then the crime empty should have been recovered from the taxi itself. But it was not so.
14. About pistol it has been contended that it is not a foreign made. Even the Holster is locally made.
Appellant came from England by Air admittedly. He has not imported either of the two. Wherefrom he got the same, there is no evidence on the record. It is nearer to truth that the same belonged to the deceased or his companion. It is of common knowledge also that when Taxi drivers, Pathans in particular, go on long routes and that too at night hours, they always keep with them some sort of fire-arms, and it has, in fact, become inevitable now a days because of law and order situation almost in the entire country.
15. Another fact which is creating strong doubts in the case of prosecution is patent and colossal over-cleverness and illegal activities on the part of the Investigation Officer Muhammad Arif (P.W.11). To prove the appellant as desperate and habitual dacoits, he has fabricated evidence in a shameless manner. Recovery Memo Exh.P.G. Contains a list of 42 articles which were recovered from the incriminating taxi. This list does not contain Khanjar (dagger) although, according to another memo. Of Recovery Exh.P.F., it was also recovered from the same black bag made of plastic from which other 42 articles were recovered. Consequently we hold that had the Khanjar been recovered from the said bag, it would have been shown as article No,43 in the list of total number of articles recovered from the bag. The Khanjar appears to be an after-thought and has been foisted upon the appellant. This fact has been covered in question No,8 and reply thereof in statement under section 342, Cr.P.C. Which is reproduced here under:-- ' Q. "Is it a fact that your bag containing cloth and other articles including blood-stained Shalwar P.6 and documents P.8 to P.11 mentioned in Exh.P.G. And Khanjer P.17 was recovered from the Taxi and do you claim these articles as your own?
' Ans. Khanjar P.17 is not mine. It is correct that the bag containing the above articles is mine. Stains of blood on Shalwar were fabricated by the police.
' Question No,14 and the reply thereof in the said statement are reproduced hereunder:-- ' Q. It is a fact that one Sajid Mehmood Bhatti, got registered F.I.R. No,175 under section 17, Haraba Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 411, P.P.C. At P.S. Rawat, against you, the copy of which is Exh.P.L. And during the investigation said Sajid Mehmood identified you and that you were challaned by the police in that case, which is pending trial in the Court of Illaqa Magistrate, Rawalpindi?
' Ans. It is incorrect. It is a concocted case against me. These are all plantations made by the police on me.
' Now the position of this Exh.P.L. Is that it is an F.I.R. Registered on 19-12-1988 at P.S. Rawat. The summary of this F.I.R. Is that one Sajid Mehmood Bhatti had reported on 17-12-1989 (should be 1988) at 5-30 p.m. Vide Rappat No,15 at P.S. Rawat that his taxi Suzuki No,RIM-7675 was engaged by appellant on 17-12-1988 at 4-1/2 p.m. For taking him near Mandra at a factory on Chakwal Road.
Before engaging the taxi, the appellant had identified himself as Mirza Tahir Hussain and had shown his passport. Before proceeding, appellant placed his luggage in the Diggi of the car and sat on the back seat. When taxi reached a little before Bagga Mor on the G.T. Road about 5-1/2 p.m.
Appellant asked the driver to stop the car which was done on a side of the road. The moment taxi was stopped, appellant pointed his pistol from behind towards the driver and ordered him to get out of the taxi and hand over the key to him and then run away toward left side trees. If he did not do it, he should be killed. Since the driver/complainant was all alone, he did as directed. After having snatched the key forcibly, appellant drove the taxi towards Rawalpindi quickly. At that time darkness had spread and the driver's hue and cry remained unattended. Finally then he started going behind the robbed taxi in a private car coming from Lahore, but due to rush of traffic on the road, he lost the sight of his taxi. After reaching Rawalpindi he informed the owners about the incident. Then all of them remained in search of the robbed taxi and the thief, but of no avail. Only on 19-12-1988 he came to know that the robbed taxi was in the possession of P.S. Rawat and so he reported the incident at 2 p.m. Vide Rappat No,15 resulting into F.I.R. No,175 of 1988 P.S. Rawat. He identified his taxi and appellant while both were in the custody of police. Hasrat Mohani (P.W.7), SI/S.H.O. P.S. Rawat has deposed in the present case on 22-8-1989 that the above-mentioned case was challaned by him under section 17, Harraba (Offences Against Property) Ordinance, 1979 and 411, P.P.C. And was pending before the Court of Ilaqa Magistrate, Rawalpindi. During cross he has admitted as under:-- ' "I did not get identification parade conducted in this case by Sajid complainant, in the presence of Magistrate. I recorded this F.I.R. On 19-12-1988 at 2 p.m. The occurrence related to 17-12-1988. Suzuki was not recovered from Tahir Mirza accused. The Suzuki already seized under section 550, Cr.P.C. It is incorrect to suggest that Tahir accused has been falsely involved in that case at the behest of Sihala Police Officials and to show our own Karvai".
' About this F.I.R. Exh.P.L. Following facts do prove beyond reasonable doubt that it was fabricated against the appellant on 19-12-1988 at 2 p.m. And at a time when all negotiations of Police with the appellant had failed and Investigation Officer had made up his mind to involve the appellant in the present case in a manner that the power of Courts is used to punish a person, may be with capital punishment, who was otherwise an innocent raw youth not knowing the mischief and filth in which the police of this country is engrossed:
(i) Had there been mens rea with the appellant, he would not have identified himself correctly to the taxi driver Sajid Mehmood Bhatti from whom he was going to rob the taxi.
(ii) In case it was an incident of 17-12-1988 at 5-30 p.m. The matter would have been reported at the police station immediately specially when the culprit had identified himself but it was reported when the appellant was already in the custody of police since about 15 hours.
(iii) A robbed taxi would not have been left by the culprit to be siezed under section 550, Cr.P.C. As is admitted by Hasrat Mohani (P.W.7) in the present case.
(iv) Had the case been correct, it would have been followed to its logical end and the police must have assisted the trial Court in getting the culprit punished. But here the position is that the trial Court had made the following order on 3-5-1994 while acquitting the appellant:- {{URDU TEXT}} ' It means that the prosecution had not taken interest for six years and had not produced a single witness in spite of repeated innumerable chances given to it. Hence the fabrication is clear.
(v) When the owners of the robbed taxi were informed about the incident on the same day i,e, 17- 12-1988 by Sajid Mehmood Bhatti, they also simply tried to search the taxi and the offender for two days and did not report to the law enforcing agencies. This is in conflict with the normal and natural conduct of human beings.
(vi) It does not appeal to reason that the appellant would have snatched the taxi on the main G.T.
Road at the peak traffic hour 5-30 p.m. Whereas he could have easily done that at a safer place a little bit ahead towards his destination.
16. Another contention for the appellant is that P.W. Sher Khan son of Haji Amir Khan Pathan has been shown at Serial No,1 of the calendar of witnesses in the challan. Sohbat Khan son of Firdaus Khan Pathan has been shown at Serial Nos.3 of the said calendar. Both of them have been given up as unnecessary vide statement of APP, dated 17-5-1989 and for mala fide purposes. The evidence as led by the prosecution is that Rehmat Khan (P.W.2) is deposing that Jamshaid Khan deceased was known to him and he was driving the taxi No,IDB 4049 owned by Sher Khan. The entire record is silent about the Registration Book of the said taxi, Record of Insurance, driving licence etc. The claim that the taxi was owned by Sher Khan but since no proof of his ownership has been brought on the record, therefore, we presume, under the provisions of Article 129, illustration (g) of the Qanoon-e-Shandat Order, 1984 the existence of the fact which we think likely to have happened, regard being had to the common course of natural events and human conduct that had the evidence of Sher Khan, which could be produced but has not been produced, would have been, if produced, be unfavourable to the prosecution who withheld his evidence.
17. In view of the above-made discussion, the benefit of doubt is extended to the appellant and the impugned judgment is set aside. The appellant namely Mirza Tahir Hussain sori of Mirza Fazal Hussain may be released in case he is not wanted in any other case. Resultantly Criminal Appeal No,122-I of 1996 is accepted and Criminal Revision No,22-I of 1996 is dismissed.
(Sd.)
(Abdul Waheed Siddiqui), Judge. (Sd.)
(Dr. Fida Muhammad Khan), Judge.
(Sd.)
Muhammad Khiyar Khan), Judge.
' DR. FIDA MUHAMMAD KHAN, J.---We have carefully gone through proposed judgment in the instant appeal as well as in the connected Criminal Revision. However with due respect we do not subscribe to the views and the conclusion arrived at by our learned brother Hon'ble Mr. Justice Abdul Waheed Siddiqui, author of the proposed judgment, and would like to give our own judgment. The reasons for our dissension are summed up in the subsequent paras.
2. Before giving our reasons, however, well feel it necessary to give a brief background of the incident of the case which started on 18-12-1988 at 10-30 p.m. When Amjad Masood P.W.4 a salesman on the Petrol Pump of Mir Zaman & Brothers situated at G.T. Road, Rawat, filled up fuel in a taxi bearing No,IDB-4049 which had been driven there by the appellant/accused for taking petrol. Thereafter the appellant/accused tried to start the taxi but it could not start. P.W.4 observed that he was much worried. In order to help him he went forward and in the meanwhile he saw the adjoining seat of the driver as blood-stained. Having got suspicious he went to the nearby hotel of Amir Dad, situated at a distance of about 16 yards and informed the Police Inspector present there about the situation. The said Inspector alongwith police officials and Amir Dad accompanied him to the petrol pump where the Inspector inquired from the appellant/accused about the taxi and its relevant documents and when he failed to produce any document the Inspector searched him. He recovered a holster having a pistol therein from under the left shoulder. It contained four cartridges. Ten cartridges were recovered from the belt. The pistol and fourteen cartridges were taken by him into possession. A bag containing various articles including a blood-stained Shalwar and "Khanjar' were also recovered from the back side of the taxi. Two passports, one British and one Pakistani, and air-tickets were also recovered. The same were taken into possession vide memo. In the morning Rehmat Khan P.W.2 alongwith Sher Khan, the owner of the said taxi, and Sohbat Khan also reached there in search of Jamshaid Khan deceased. They saw the taxi and the accused in police custody. The appellant/accused led to the place where dead body of Jamshaid Khan deceased, having I fire shot on the right side of shoulder passing on to underneath the left arm pit, was found. A lead bullet, empty cartridge and blood-stained earth were taken into the possession.
The dead body was sent for post-mortem examination.
3. According to P.W.11 i,e,, the Investigating Officer, the appellant/accused, on interrogation made disclosure that on the preceding night he hired taxi bearing No,IDB-4049 from Octroi No,22, Rawalpindi. When the said taxi reached Sawan Camp. G.T. Road he aksed the taxi driver to stop the vehicle and get down but he refused to do so. Then in order to snatch the taxi from him, he fired at him with .30 bore pistol, recovered from him, and threw him in injured condition on the road side.
Thereafter he drove the said taxi to petrol pump at Rawat where he stopped that to get fuel. After filling the fuel however taxi did not start. Then, in presence of the aforementioned persons who had joined the investigation, the appellant/accused, while in police custody, led to the recovery of dead body of deceased Jamshaid Khan son of Abdul Ghani lying on the western side of the road towards Kahuta turning at Sawan Camp. Dead body of the deceased was examined. An injury caused with fire shot on the right shoulder, an injury containing blood in the left arm pit, swelling on his lips and bruises on his forehead were observed. The dead body was taken into possession by the complainant vide memo and an inquest report was prepared Formal case was registered vide complaint Exh.PE at Police Station Sihala at 7.20 a.m. On 19-12-1988.
4. After formal registration of the case and completion of necessary formalities the appellant/accused was formally charged on 17-5-1989 under section 302, P.P.C., for committing murder of Jamshaid taxi driver, and under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the said Ordinance, for committing 'harabah' by robbing Jamshaid Khan deceased of his taxi No,IDB-4049. He did not plead guilty to the charge and claimed trial. Therefore, the prosecution examined eleven witnesses in all.
5. The appellant/accused made the following statement under section 342, Cr.P.C.:-- ' "Amjad Masud, Mir Dad, and Rehmat Khan P. Ws. Being under the influence of Police, have falsely deposed against me. Moreover Rehmat Khan P.W. Has also deposed against me at the behest of the owner of the Taxi.
' Actually I was a stranger, in Pakistan and after the occurrence, I thought that P.S. Rawat is the concerned Police Station. I was taking the Taxi and the Revolver to the Police Station Rawat , when I saw the Police present on the Hotel of Mir Dad. I personally produced the revolver and Taxi before the Police and informed the Police that I had hired the said Taxi for my village. Jamshaid deceased took another person alongwith him to travel from Rawalpindi to Bhubher in District Chakwal as it was night journey. The companion of the deceased and the deceased started altercating with each other; in Pushto about a hall mile short of place of incident. When they reached the spot, they started grappling with each other. After parking the Taxi, by road side, then, the companion of the deceased, told me that the deceased wanted to commit sodomy on me.
' On this, the deceased wiped out a pistol and wanted to fire at the companion but again scuffle took place. During that scuffle incidentally the pistol went off and hit the deceased. The deceased then opened the door of the Taxi and went out of it to fight with the companion. By that time, his companion also went out of the taxi and the deceased was given a push by companion, as a result, the deceased fell on the grass. His companion escaped. I had been trying to give support and aid to the deceased, but he succumbed to the injuries. Then I decided to inform the Police with this impression that P.S. Rawat is the concerned police station. Then I acted as stated above. The Police enroped me in this case because on the following day, i,e, 19-12-1988, when the Police realized about the failure to trace out the real culprit, then they, involved me falsely in this case. On 18-12-1988 and 19-12-1988, the Police could not get even the address of the deceased Jamshaid nor could know about the owner of the taxi. Somewhere after sunset, on 19-12-1988, they succeeded in probing the owner of the taxi and then they knew about the name of the deceased. For this reason, the dead body of the deceased could not be despatched for post-mortem examination on 19-12- 1988. "
' He declined to make statement on oath in disproof of charges levelled against him and also declined to produce any evidence in defence.
6. At the conclusion of trial the then learned Additional Sessions Judge, Islamabad vide his judgment, dated 30-9-1989 awarded him the sentence of death and fine of Rs,20,000 and, in case of non-confirmation of death sentence, further two years' R.I. In default. He further convicted him under section 20 of the said Ordinance read with section 392, P.P.C. And sentenced him to ten years' R.I. And a fine of Rs,5,000 or in default further one year R.I. He was allowed the benefit under section '382-B, Cr.P.C. With the direction that the sentences shall run concurrently.
7. The said judgment, dated 30-9-1989 was challenged before the Hon'ble Lahore High Court where, the Murder Reference was answered in negative and the aforementioned sentences were set aside and the case was remanded to the learned Sessions Judge for retrial from the stage of examination of the appellant/accused under section 342, Cr.P.C., and for fresh decision in accordance with law. The Revision petition was dismissed. Subsequently direction of the High Court was complied with and statement of the appellant/accused was recorded again as required.
8. The said statement made in response to the question "Did you commit the murder of Jamshaid Khan on the night between 18/19-12-1988 in the area of Swan Camp near Kahuta Turning Sihala?" is reproduced hereunder:-- ' "I did not commit the murder of Jamshaid Khan. I had no pistol with me. I landed at Karachi Airport on 16-12-1988. My maternal aunt lives in Shah Faisal Colony at Karachi, I stayed with her for a day.
On 17-12-1988 I left Karachi for Punjab by train reaching Lahore on 18-12-1988. I took my meals in a Restaurant close to the Railway Station at Lahore. I then took a Flying Coach for my onward journey to Rawalpindi. I reached Rawalpindi at 7 p.m. As soon as I alighted from the Flying Coach Taxi drivers surrounded me. When they learnt about my destination which is village Bhubhur in District Chakwal, they were reluctant to take me there. In the meanwhile, the deceased Jamshaid came there. He enquired from me about my destination. I told him about my village. He then enquired as to the place from where I came from. I told him I had come from London. We then settled a fare of Rs,500. He asked me to sit in the Taxi and himself went away after telling me that he was to find another man for accompanying him to my destination. After a while, he returned with another person. Jamshaid sat in the driver seat while his companion sat in the adjoining seat. I sat in the back seat and kept my luggage with me. Whatever happened thereafter is already reflected in my statement under section 342, Cr.P.C. On 5-9-1989. I had no pistol and I did not cause the death of Jamshaid. I grew up in England after I went there as a child. I come from a respectable religious family background. If I intended to snatch a taxi my choice would have been a different vehicle rather than an old vehicle in which I was going. In case I had murdered Jamshaid I would not have taken the taxi and pistol to the police. I am innocent and 1 have been implicated in this case by the police at the instance of the complainant party. I cannot think of committing an offence like murder. I had come to Pakistan on holidays after my passing out parade 'B' (The Lees Rifles)
Company whose letter, dated 31-1-1989 I am producing just now. I am also producing with the statement photocopy of Secondary School Certificate as well as the marks obtained by me. I took this examination from Jail and my grade is 'A'. I am also producing photocopy of the Intermediate Certificate which examination in 1993 from Jail and was awarded grade 'D'."
9. Thereafter the learned Sessions Judge vide his judgment, dated 3-4-1994 convicted the appellant/accused under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,10,000 or in default of payment of the fine further two years' S.I. He further convicted him under section 20 of the said Ordinance read with section 392, P.P.C. And sentenced him to seven years' R.I.
And a fine of Rs,5,000 or in default further one year S.I. The sentences were ordered to run consecutively. The benefit of section 382-B, Cr.P.C. Was extended to him. Heirs of the deceased were also awarded Rs,20,000 as compensation under section 544-A, Cr.P.C. And in default of payment of compensation the appellant/accused was sentenced to suffer further two years' S.I. It was directed that the fine if recovered be further paid as compensation to the heirs of the deceased.
10. An appeal against the second judgment was preferred before the Hon'ble Lahore High Court.
However vide judgment announced on 20-6-1996 the Hon'ble Lahore High Court held that Appeal in conviction and sentence under section 20 of the said Ordinance lies to Federal Shariat Court and therefore, directed that the Appeal as well as Criminal Revision petition be presented before the Federal Shariat Court. The instant Appeal thus received was placed before the Full Bench.
11. Criminal Revision is also filed by Abdul Ghani petitioner with the prayer that the sentences of appellant/accused under section 302, P.P.C. Be enhanced from life imprisonment to that of normal penalty of death and the fine may also be enhanced from Rs,10,000 to rupees five lacs or in default two years' R.I. Instead of two years' S.I. With a further prayer that sentences of imprisonment under section 20 of the said Ordinance read with section 392, P.P.C. Be also enhanced from seven years to 14 years and the fine thereunder be enhanced adequately. It has been further prayed that compensation under section 544-A, Cr.P.C. Be enhanced from Rs,20,000 to Rs,5,00,000, and the same may be ordered to be given to the heirs of the deceased. Since the Appeal as well as the Revision arise out of the same judgment, we are disposing both by this single judgment.
12. We have heard learned counsel for the parties and have perused the record with their assistance. Learned counsel for the appellant submitted that conviction and sentences of the appellant can neither be supported by the evidence on record nor by the law applicable thereto and as such it cannot be sustained. He submitted that there is no eye-witness of the occurrence and thus no direct evidence that it is the appellant alone who had committed the murder of Jamshaid is available on file. The circumstantial evidence produced by the prosecution does not point inevitably to the conclusion that it is the accused alone who is the perpetrator of the offence and is therefore, incompatible with the innocence of the accused. He also submitted that the F.I.R.
Itself had been registered after the completion of investigation and thus it has lost its sanctity. The learned counsel further submitted that the prosecution story and defence version when put in juxtaposition inherent discrepancies are found in the prosecution story and the defence version rings true and also finds support even from the prosecution evidence itself. The learned counsel highlighted these discrepancies. He also submitted that the blood on the seat of taxi and the Shalwar of appellant was clearly fabricated and the prosecution witnesses are totally unreliable and their statements when examined carefully do not inspire confidence.
13. Learned counsel for the State supported the impugned judgment.
14. Learned counsel for the petitioner submitted that the case of prosecution against the appellant/accused is established by the strong circumstantial evidence as well as by the impeachable evidence of prosecution witnesses who have no enmity whatsoever with the appellant/accused who was caught red-handed with the snatched taxi having blood-stained seat and who was also found in possession of the revolver used in the murder of Jamshaid Khan deceased. The learned counsel submitted that the lenient view taken by the trial Court in respect of sentence is not justified as youth of an offender is no ground for not awarding normal death penalty. The learned counsel submitted that the respondent/accused was a young man of 18 years, six months and 16 days old on the day of occurrence. Therefore, in circumstances when he has been guilty of committing the brutal murder of a Young man of 18 or 19 years and robbing him of the taxi does not deserve any leniency and therefore the lesser penalty awarded to him is violative of the dictum of the superior Court of Pakistan and also amounting to miscarriage of justice in the peculiar circumstances of the matter.
15. We have thoroughly appraised the evidence on record in the light of submissions made by learned counsel for the parties. Admittedly the chain of events in the instant case started when the appellant was apprehended alongwith taxi of the deceased at Petrol Pump Rawat. When, after getting petrol, the taxi being driven previously by the deceased did not start, Amjad Masood P.W.4, after observing some blood on the seat cover, informed the Police Officials at the hotel of Mir Dad P.W.5. Muhammad Arif Inspector Police (P.W.11) who was present alongwith other Police Officials in the aforementioned hotel, situated at about 16 yards from the said petrol pump, reached there and apprehended the appellant/accused. He recovered pistol and bag of the accused/appellant containing various articles from the said taxi. Since the said taxi had not returned as usual, Karamat Khan, Sher Khan and Sohbat Khan P. Ws. Were in its search. During search of the same they also reached there. In these circumstances contention of the learned counsel for the appellant that the F.I.R. Was lodged after commencement of investigation is devoid of any force. It was but natural for Muhammad Arif Inspector to take custody of the said taxi as well as the dead body then and there, the moment he was informed by the appellant/accused that driver of the said taxi had been murdered. It was also natural for relatives of the deceased as well as owner of the said taxi to carry out its search when the deceased did not return as usual. Normally information about the vehicle can be easily confirmed from the check posts and petrol pump.
Therefore, their arrival at the petrol pump was not an unusual circumstances. Submission of the learned counsel that the petrol pump it was dark and it was not possible to observe blood on the front seat as the electricity at that time had gone off is also without force in view of the fact that according to evidence of the same P.W., the generator was on and therefore there could be no question that darkness might have prevented observation of blood on the front seat as there could have been sufficient light of generator at that time. Similarly submissions of the learned counsel regarding the timings mentioned by the P.Ws. About arrival of the taxi in the petrol pump and arrival of P.W. Rehmat Khan in the morning and leaving of the Police Inspector for the place of occurrence is also not convincing because that may have been their own estimate of the time and it is not necessarily to be assumed that they had watches by which they had fixed the time. Notions of the people about time are proverbially vague and we are not therefore, impressed by the argument that the P.Ws. We're not available. Likewise contention of the learned counsel that the witnesses were prompted by the police officials has no substance as none of the witnesses is stock witness nor in any way inimical to the appellant/accused prior to the occurrence. They had even no acquaintance with him at that time. Delay in reporting the matter to the police station is well- explained by the peculiar circumstances of the case. No motive for false implication exists in this case and we find no adequate ground for reappraisal of the evidence by this Court. The statement of prosecution witnesses are fully consistent in material particulars and suffer from no infirmity. The contradictions and discrepancies pertaining to place of occurrence, time of presence of police officials at hotel, number of police officials at petrol pump, existence of petrol pumps at the G.T.
Road/air port road, place of occurrence, its distance from the main road or from police station etc. As pointed out by learned counsel for appellant are immaterial, inconsequential and in fact misconceived and have no bearing on the case of prosecution as admittedly Jamshaid Khan driver had been actually put to death and the dead body had been admittedly pointed out by the appellant/accused himself. All the P.Ws. Have been subjected to lengthy cross-examination but the defence has failed to bring any material thing detrimental to the prosecution case. The P.Ws.
Are reliable and have given natural and convincing explanation of their presence at place of occurrence. Their testimony finds full support from the evidence of recovery as well as post- mortem report. No element of doubt exists in the prosecution story. It is pertinent to mention that both prosecution and accused have admitted the occurrence but have given different version. The ' prosecution has examined independent witnesses to prove its case. The depositions of witnesses, as stated above, are fully corroborated by circumstantial evidence. The appellant/accused was admittedly in possession of the snatched taxi at the relevant time. The prosecution version placed in juxtaposition to the defence version rings true and inspires confidence. In order to appreciate the evidence on record in proper perspective the following admitted facts which transpires from the record are worth consideration:--
(a) The deceased Jamshaid Khan was driving the taxi bearing No,IDB-4049 before he expired.
(b) He had been hired by the appellant/accused to take him from Rawalpindi to Bhubher in District Chakwal on the night between 18th and 19th December, 1988.
(c) The appellant/accused drove the same vehicle from the place of occurrence to petrol pump Rawat adjacent to hotel of Mir Dad.
(d) The police officials were present there at that time.
(e) At that time, besides the said taxi, the appellant/accused was in possession of revolver allegedly belonging to the deceased.
(f) The said revolver had been used in the commission of offence of murder of Jamshaid Khan.
(g) Dead body of Jamshaid Khan was recovered, after the disclosure made by the appellant/accused to the police officials, from near the turn of Kahuta. The dead body was lying in the bushes at a distance of 12/13 feet from the road.
16. Besides this the following position emerges from the evidence brought on record:-- ' The dead body of Jamshaid Khan was lying in the bushes and not inside the taxi when the appellant/accused was apprehended.
' According to the evidence of prosecution brought on record by P.W.4 the appellant/accused brought the taxi to the petrol pump and got it refilled. He tried to start the said taxi but could not succeed. P.W.4 saw the blood stains on front seat and thereafter informed the police officials available in the nearby hotel.
' The police officials came to the petrol pump alongwith owner of the hotel and saw the appellant/accused in the taxi and when he could not produce the necessary documents he conducted his search and made various recoveries including one revolver and 'Khanjar' from his possession.
' In the meanwhile P.W.2 Rehmat Khan alongwith Sohbat Khan and Sher Khan also reached petrol pump and identified the taxi.
' Thereafter the appellant, in police custody, led the police and P.Ws. To the place of occurrence and pointed out the dead body which was identified to be the dead body of Jamshaid Khan driver of Taxi No . IDB-4049 ' The dead body was sent for post-mortem examination where, inter alia, the following injuries were observed on the dead body:--...Single entry wound right shoulder 1 c.m. Diameter 5.5 c.m. From shoulder joint 36 c.m. From elbow joint (superiorly). Edges inverted margins burnt.
' Single exit wound left side of chest 1 c.m. Dia edges everted 13 c.m. Laterally from left nipple. 18 c.m inferolateral from mid left clavicle..."
' The doctor who conducted post-mortem opined that the death occurred due to injury No,1 resulting in damage of lungs and vessels due to haemorrhage and this injury was sufficient in ordinary course of nature to cause the death.
17. According to the version given by the appellant/accused he was going to inform the police at P.S. Rawat as being stranger he was under the impression that, that was concerned police station.
In this connection the following questions are very pertinent:-- ' Why did the appellant leave the dead body of Jamshaid Khan unattended at the place of occurrence?
' Why he took the revolver used during the alleged scuffle between the deceased and his companion, and in what circumstances?
' Why did he not ask, at the outset, Amjad Masood (P.W.4) about the concerned police station?
' If he had seen the police in the hotel of Mir Dad why he preferred to go to the petrol pump instead of going straight to the said hotel?
' What for he filled fuel in the taxi and why he tried to start that when the purpose was to make report to the police over there?
' Instead of proceeding towards Rawat/Chakwal, why he did not go towards Rawalpindi/Sihala, being much more familiar and famous places than that of Rawat?
' Why he failed to produce any evidence in support of his plea? (He could have made statement on oath, at least, but on both occasions he only recorded statement under section 342, Cr.P.C.., and declined to make a statement under section 340(2), Cr.P.C. In disproof of the allegation made against him.)
' Why companion of the deceased Jamshaid Khan left the taxi as well as revolver behind and went away at that hour of the night and why he did not use the taxi to immediately get away from the scene of occurrence as soon as possible?
' Why the appellant/accused gave no description of the said companion to the police to enable them to trace him out?
' Why the appellant/accused failed to produce his close relative from Lahore with whom he allegedly stayed before his departure for Rawalpindi?
' All these questions are left unanswered and had the appellant/accused true in his version he could have thrown light on all these circumstances.
18. Placed in juxtaposition the defence version does not appeal to a prudent mind and fails to convince for the following reasons:--
(a) The appellant did not disclose his defence version to the police at the time of his arrest or at the earliest opportunity and it was not even put to the P. Ws. At the early stage. It clearly appears an afterthought. It was only put to P.W.11. Who firmly repudiated the same.
(b) The robbed taxi was recovered from his possession soon after the occurrence. This was a Very strong circumstance favouring the belief that he was the person who snatched that, following the murder of the driver and the natural inference was that he was directly concerned with the murder.
(c) As appears from the prosecution evidence the appellant/accused was found to have concealed the weapon of offence with which the murder of deceased was committed. The inference is almost irresistible on the basis of complete chain of circumstances that he himself committed the crime. The chain is so strong that in order to create a reasonable doubt regarding the conclusion that the murder was committed by his companion, 'it was necessary for him to establish exculpatory circumstances of a concrete kind or at least make a statement on oath, but he failed to do so in spite of ample opportunity provided to him twice.
(d) He did not drive the said taxi towards Rawalpindi which in spite of being stranger was well known to him and instead kept on driving the taxi in the direction towards Chakwal.
(e) He left dead body unattended at the place of occurrence. If he actually wanted to provide aid to him or lodge report to police in that respect, he could have easily put him in the taxi and taken him to a hospital or to the nearby police station.
(f) There is no evidence or suggestion that upon reaching the petrol pump he inquired about the Police Station Rawat. The Police Inspector at that time according to the consistent evidence was available in the hotel and if had actually seen the police he would have gone straight to the hotel instead of the petrol pump.
(g) According to the prosecution evidence he kept on starting the taxi but it could not start and he appeared much worried. Obviously instead of filling petrol in the taxi and trying to get it started he could have easily reported to the police who were available nearby.
(h) He was found in possession of pistol used in the commission of offence. The aforementioned companion of the deceased who had grappled with him and in a way caused his death should in the normal course have taken the pistol along to meet any future emergency. He could not be oblivious to the fact that he needed that urgently in those circumstances. The said companion should also have not left the taxi behind and should have used that being a faster source for escaping from the scene.
(i) The said companion should not have left the appellant/accused alive as he was an eye-witness against him. The owner of the taxi according to the evidence had been searching the taxi during the night when it did not return. During that searching they could have easily found out who had been taken along as companion by the deceased. No such evidence is available on record.
19. In this view of the matter we have found that sufficient material is available on record to connect accused with the commission of offence. He hired the taxi of deceased with the intention to deprive him from his valuable property and in the process he also took his life which shows that he. Was of mature understanding. He has not committed the offence under the influence of any Other person and has betrayed the trust reposed on him.
20. Here it may also be pertinent to mention that judgment at the trial stage was written twice by two different Sessions Judges and both the times, after appraising the evidence, they believed the testimonies of prosecution witnesses and recorded conviction under section 302, P.P.C. However at the later stage the sentence of death awarded to him thereunder earlier was not maintained and instead he was sentenced to imprisonment for life with a fine. The reason for taking lenient view qua the sentence by the learned Court is based on the ground of adolescence of the appellant.
However, we don't agree as the appellant/accused, according to uncontroverted document of his passport i,e, P.8 and P.9 was born on 1-6-1970 and on the day of occurrence i,e, 18-12-1988 he was of 18 years, 6 months and 16 days and as such he was major at the time. Moreover it is to be kept in mind that, as held by the Hon'ble Supreme Court, in , a case reported as 1991 SCMR 56, mere fact that accused is young offender is no ground for not awarding him normal penalty of death. In the instant case the appellant/accused not only committed brutal murder of a young poor taxi driver, aged 18/19 years, he also committed robbery and snatched taxi from him. He was caught red- handed, in possession of the said taxi as well as the revolver used in commission of his murder. In circumstances we find no cogent reasons for awarding lesser penalty nor any mitigating circumstance favouring the accused qua the quantum of sentence. In fact we view award of lesser penalty in circumstances of the case as miscarriage of justice.
21. The upshot of above discussion is that both the prosecution and appellant/accused have admitted the occurrence but have given different versions. However, the prosecution version, placed in juxtaposition to the fefence version is, as discussed hereinabove, confidence inspiring and believable. The P.Ws. Are independent witnesses who had no animosity whatMorever with the appellant/accused nor had any relation with the deceased. They had no motive to involve the accused falsely in place of the real culprit. In fact none of them has any concern with the case of prosecution to falsely implicate an innocent person to substitute the real offender. The recoveries effected from the possession of appellant/accused especially recovery of the taxi and revolver used in the commission of offence are very strong circumstances that establish his guilt. Both the times, before and after the remand of the case, the trial Courts twice believed the statements of prosecution witnesses. The appellant/accused had not disclosed his defence version, to the police, at the earliest opportunity, at the time when he was apprehended and has subsequently failed to substantiate his defence. He was thus rightly convicted in circumstances. The sentence awarded to him subsequently however is not justified in circumstances of the case.
22. Consequently, for the reasons stated above we maintain the conviction under section 302, P.P.C.
But alter the sentence of life imprisonment and award the normal penalty of death to the appellant/accused, and if the death sentence is not maintained, with a fine of Rs,50,000 or in default of payment of fine further two years' R.I. He is to be hanged by his neck till he is dead. The death sentence will operate subject to confirmation by the Hon'ble Shariat Appellate Bench of the Supreme Court. We also maintain his conviction under section 20 of the said Ordinance read with section 392, P.P.C. But award him ten years' R.I., and a fine of Rs,50,000 or in default of payment of fine further one year R.I. The amount of aforementioned fine on two counts, if recovered, shall be paid to the legal heirs of deceased. We further order that the appellant/accused shall pay a compensation of Rs, one lac to the heirs of deceased under section 544-A, Cr.P.C., failing which he shall further undergo two years' R.I.
23. With this modification in the sentences the appeal is dismissed. The revision petition is allowed in the terms mentioned hereinabove and is disposed of accordingly.
(Sd.)
(Dr. Fida Muhammad Khan), Judge. (Sd.)
(Muhammad Khiyar Khan)
Judge.
ORDER OF THE COURT ' Vide majority judgment of today announced in open Court, the appeal is dismissed and the appellant is awarded death sentence instead of life imprisonment alongwith other conviction and sentences mentioned in para. 21 of the majority judgment and the revision petition is allowed to the extent mentioned thereinabove.
(Sd.)
(Dr. Fida Muhammad Khan), Judge (Sd.)
(Abdul Waheed Suddiqui), Judge. (Sd.)
(Muhammad Khiyar Khan), Judge.