The learned Sessions Judge, Attock vide judgment, dated 22-12-1988 has convicted and sentenced the appellant for the murder of Muhammad Javaid son of Muhammad Ashraf aged 15 years as follows:-- Abdul Rashid son of Allah Ditta aged 30 years under section 302, P.P.C.Life imprisonment. Fine of Rs-5000 or in default of Payment of fine, one year R.I.
Compensation Rs.10,000 to the father of the deceased. The convict was also given benefit of section 382-B, Cr. P. C.
The convict has filed Criminal Appeal No.23 of 1989' against his conviction and sentence, while the complainant has filed Criminal Revision No.159 of 1991 for enhancement of sentence of convict. This judgment shall dispose of criminal appeal and criminal revision.
2. The occurrence took place on 11-7-1987 and time is not known (WAQT NA MALOOM) near Khas Nazo in the area of Ghur Ghashti, Tehsil and District Attock at a distance of 10 K.M. from P.S. Hazro.
Statement Exh.P.D. was made by Muhammad Ashraf P.W.6, the father of the deceased recorded by Atta Ullah, A.S.I. P.W.13 at 3-00 p.m. in Police Post Ghur Ghashti on the same day and the formal F.I.R.
Exh.P.D./1 was recorded at 3-30 p.m. by Ummar Hayyat, A.S.I. Moharar.
3. In the F.I.R., the occurrence is reported to have taken place allegedly that Muhammad Ashraf P. W .6 had gone to Jallo, where a Mela was in progress. From there, he returned to Addah Maskeen Abad situate in the area of village Ghur Ghashti. He learnt at about 1-30 p.m. that his son Muhammad Javaid aged about 14 years had been murdered. He went to Khas Nazo lying at a distance of 300/400 yards from the Addah, dead body of his son was lying over there, who sustained incised injuries on all parts of his body. Leaving the dead body of his son to his cousin namely Haider Zaman, he went to Police Post Ghur Ghashti, where, he lodged the report.
4.The motive as alleged by the complainant was that Bahadur and Saddique wanted to cultivate sexual relation against the order of nature with his deceased's son.
5. Dr. Muhammad Khan P.W.1 M.O., THQ Hospital, Attock conducted the post-mortem examination on the dead body of Muhammad Javaid son of Muhammad Ashraf aged about 15 years on 11-7- 1987 at about 5-15 p.m. and found the following injuries:-- (1)An incised wound 10 C.m. x 5 c.m. and bone deep on the left back side of right behind the left ear.
(2)An incised wound 5 c.m. x 2-1/2 c.m. and subcutaneous tissue deep on the left side of neck.
(3)An incised wound 6 c.m, x 2 c.m. muscle deep on the front of neck.
(4)An incised wound 4 c.m. x 2 c.m. x skin deep above the right clevical.
(5)An incised wound 5 c.m. x 1 c.m. skin deep in the left cheek. The upper lip was cut from its left side.
(6)An extensive incised wound 7 c.m. x 6 c.m. x muscle and subcutaneous tissues deep on the right side of neck. The underlying great blood vessels of the right side of neck were cut across. The transverse process of the third and fourth vertebrae were exposed and felt in the wound.
(7)An incised wound 6 c.m. on the right side of front of chest subcutaneous tissue deep overlying 8th and 9th ribs.
(8)An incised wound 8 c.m. x 4 c.m. and muscles deep on the medial aspect of the middle part of left forearm.
(9)An abrasion 3 c.m. x 2 c.m., on the back of left thumb.
(10) An incised wound 2 c.m, x 1 c.m., on the palmer aspect of right little finger.
(11) An incised wound I c.m.. x 1.5 c.m, on the palmer aspect of little finger, There was fracture of the distal inter-phelygal joint of right little finger, The fracture corresponded both the injuries Nos, 10 and 11.
(12) An incised wound I c.m. x 1-1/2 c.m, on the back of right index finger.
OPINION In the opinion of the doctor, cause of death in this case was due to shock and hemorrhage due to injuries No. 1, 2 and 6 collectively, The injuries Were caused with sharp-edged weapon except injury No.9 which was caused with blunt weapon. All the injuries were anti-mortem. The time between the Injuries and death was within half an hour, while between death and post-mortem was about two to four hours.
6. The blood-stained earth was taken into possession from the spot on 11-7-1987 vide memo.
Exh.P.G. which was attested by Atta Ullah Khan, A.S.I. P.W.13, Haider Zaman P.W.8 (first cousin of the father of the deceased) and Sultan Afsar given up as unnecessary. Exh.P.5 was also taken into possession from the spot on the same day vide memo. Exh.P.F. and the attesting witnesses are the same, as mentioned above. It is pertinent to mention here that the reports of Chemical Examiner and Serologist were found positive. Convict was arrested on 25-7-1987 by Shah Johan, S.I. P.W.14.
Exh.P.6 Churri was taken into possession on the pointation of convict from his residential house on 29-7-1987 vide memo. Exh.P.H. which was attested by Shah Johan, S.I., Qalandar Khan P.W,10 and Muhammad Miskeen P.W.9. Exh.P.7, shirt and Exh.P.8 Shalwar were also recovered on the pointation of the convict which were taken into possession vide memo. Exh.P.I. on the same day and the attesting witnesses are also the same. It is proper to mention here that the reports of the Chemical Examiner and Serologist were found positive.
7. The prosecution produced- Taoos Khan P.W.11, Qasim Khan P.W.12, who had seen the convict and the deceased at 12-00 noon on the date of incident. Muhammad Ashraf P.W.6 recorded the F.I.R., Haider Zaman P.W.8, Muhammad Miskeen P.W.9 and Qalandar Khan P.W.10 are recovery witnesses.
Atta Ullah, A. S. I. P.W.13 and Shah Johan, S. I. P.W.14 investigated the case and the remaining witnesses are formal witnesses. While, the convict/appellant under section 342, Cr.P.C. controverted the allegations levelled against him and pleaded himself innocent in the matter as follows :- "I am innocent. In fact Javed was murdered by some other persons and the occurrence was unseen, The police apprehended Siddique and Bodar Shah, who were named by the complainant In the F.I.R. as suspects and a specific motive was also attributed to them. Similarly Tariq and Ajmal alias Ajlam were also associated and interrogated with regard to the murder of Javed deceased.
The LO, had actually written case diaries regarding investigation of the case and apprehension of all the above named four persons, but later on he succeeded in destroying those case diaries, and made me a scape--goat, being a poor person. The police had let the above named four persons go free and substituted me as an accused,"
8Learned counsel for the appellant argued as follows;-- (1)Recoveries from the convict/appellant having been made on 29-7-1987 from the joint house of the convict,, and other members of his family.
(2)Recoveries from the convict are made in violation of section 103, Cr.P.C.
(3)It is a blind murder and no body has seen the convict/appellant to murder the deceased.
(4)Mere fact that the convict and the deceased were seen together immediately before the occurrence is not itself sufficient for conviction.
(5)The occurrence took place at Kash Nazo and the convict was involved in the present case on the basis of suspicion on the statement of Wajtakkars. (Chance witnesses).
(6)The prosecution failed to prove the recovery of weapon of offence from the appellant as the recovery was effected through interested witnesses and the prosecution failed to. produce the independent witnesses, therefore, the recovery of weapon of offence from the appellant is in violation of section 103, Cr.P.C.
(7)The prosecution failed to prove the absconsion of the convict/appellant in accordance with law.
(8)The police has specific motive to involve the convict/appellant in the murder case on account of enmity.
(9) The complainant suspected Saddique and Bahadur. Subsequently, the police also suspected other two persons and ultimately without any justification police involved the appellant/convict in the case without any justification due to malice and suspicion.
(10) There are two versions of the incident. One as alleged by the prosecution and the other as alleged by the appellant, if put in juxtaposition, then, the story put forward by the appellant seems to be truthful.
9. The learned counsel for the complainant argued at length and supported the judgment of the learned Sessions Judge. The father of the deceased is a poor person who has no enmity with the convict to involve him in a heinous offence. Similarly P.W.11 Taoos Khan aged 35 years and Qasim Khan aged 65 years have no enmity against the convict/appellant who had seen the convict/appellant with the deceased, therefore, they could not involve him in heinous offence. Their statements are supporting each other on all material points. The recovery of Chadar of the convict from the place of occurrence and recovery of weapon of offence from him which were recovered in presence of independent witnesses provided sufficient corroboration coupled with the medical evidence.
10. The State Counsel adopted the arguments of the learned counsel for the complainant. .
11. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admittedly a case in which no eye-witness was produced. The prosecution produced following circumstantial evidence to connect the convict with the commission of offence:-- (1)Last seen witnesses. Last seen evidence consisting of P.W.11 Taoos Khan and Qasim Khan P.W.12.
(2)Recovery of Chadar of the convict recovered from the place of occurrence which was identified by Taoos Khan P.W.11 and Qasim Khan P.W.12.
(3)Recovery witnesses of weapons of offence of the Shalwar and Qameez of the convict witnesses by Muhammad Miskeen P.W.9 and Qalandar Khan P.W.10.
(4)Reports of Chemical Examiner and Serologist qua the Qameez and Shalwar of the convict Exh.P.M. and Exh.P.M./1 respectively.
(5)Report of Chemical Examiner qua weapon of offence (Chhuri) of convict Exh.P.O. and Serologist Report Exh.P.O./1 respectively
12. I would like to discuss the evidence regarding the recovery of weapon of offence and clothes of convict recovered from him whether these recoveries provided independent corroboration in the present case or not?
13. It is admitted fact that incident took place on 11-7-1987 in Khas Nazo. The convict was arrested on 25-7-1987. Recovery' of weapon of offence and clothes were recovered from his residential house or his pointation on 29-7-1987. It is not believable that the convict kept blood--stained Shalwar Qameez and Churi in his house. P.W.14 Shah Jehan, S--1. handed over the two parcels, one containing blood-stained Churi and the other having blood-stained clothes to Ummar Hayyat A.S.I./Moharar/P.W. on 29-7-1987. Ummar Hayyat P.W.3 handed over the aforesaid parcels to Ansar Iqbal Full Constable for onward transmission to the Office of Chemical Examiner on 1-8-1987. P.W.4, Ansar Iqbal handed over the aforesaid parcels in the Office of Chemical Examiner on 2-8-1987. The Chemical Examiner has given his report to the Serologist on 3-8-1987. Subsequently Serologist also has given his report on 8-12-1987. It is pertinent to mention here that the reports of Chemical Examiner and Serologist are positive. In a similar circumstances, the Honourable Supreme Court did not believe the recovery of weapon as blood-stained in Muhammad Din's case PLD 1959 SC 491 and the relevant observations as follows:-- "Recovery of the blood-stained stick, which is alleged to have been made at the instance of the appellant six days after the occurrence, is not by itself sufficient to maintain the conviction".
Similarly, the Honourable Supreme Court did not believe the recovery of crime weapon which was recovered after five days from the convict in Muhammad Tasneem's case 1985 SCM R 160. The aforesaid proposition is also supported by the judgment of the Honourable Supreme Court in Mujahid Hussain's case 1985 SCM R 1573.
The prosecution produced Muhammad Maskeen and Qalandar Khan to prove the aforesaid recoveries from the convict, who joined the police party at Addah Miskeen Abad. Muhammad Maskeen admitted in cross---examination that Wazir Khan brother of the complainant Muhammad Ashraf runs a hotel in the premises owned by Qalandar Khan P.W.10. He admitted in cross-examination that inhabitants of the area gathered there, therefore, the aforesaid recoveries made from the convict/appellant are in violation of mandatory -provisions of section 103, Cr.P.C.
Even otherwise P.W.9 Miskeen and P.W.10 Qalandar Khan are chance witnesses. In cross--- examination, suggestion was made to Muhammad Miskeen P.W.9 that he is a professional witness, although he denied this-fact. Whereas, P. W.10 Qalandar Khan admitted in cross-examination that he met Miskeen at the hotel belonging to Qadir and Wazir and they had taken tea there together.
This fact brings the recovery witnesses in the area of interested witnesses. In view of these circumstances, I am not inclined to believe the recovery of weapon of offence and Shalwar and Qameez recovered from the convict.
14, Now I discuss the evidence of recovery of Chadar Exh.P.5 which was taken into-possession from the spot. In cross-examination P,W.13 Atta Ullah Khan, AAI, admitted that he secured Chadar from the place of occurrence, war of blue colour. He also admitted that after seeing his site inspection note where the colour of Chadar is written as, "Neela". He also admitted that Chadar was blood- stained, but this fact was not mentioned in his inspection note. He also admitted that Chadar was also not mentioned any-where in the Inquest Report, He further admitted in cross-examination that parcel of Chadar was not prepared and it was not sent to the Chemical Examiner.
15. P.W.11 Taoos Khan admitted in his cross-examination that they (P. W.II Taoos Khan and P.W.12 Qasim Khan) did not inform Muhammad Ashraf P.W.6 complainant that the convict was having a Chadar of blue colour when they had seen him. Whereas, P.W.12 Qasim Khan admitted in his cross- examination that he met Muhammad Ashraf P.W.6 and told him about the convict wearing a Chadar of blue colour. He further admitted in cross-examination that Chadar was only cloth available with the police and it was not mixed up with so many other Chadars of similar kinds and colours. The challan has been submitted and observed that the convict has washed the clothes therefore, this part of the challan is in conflict with the aforesaid evidence of the recovery witnesses. In view of this, I am not inclined to believe the recovery of Chadar allegedly recovered from the place of occurrence.
16. In the F.I.R., P.W.6 Muhammad Ashraf suspected Bahadur Shah and Siddique to be possible assailants on the ground that 7/8 days before the occurrence, they had given beating to his son.
The suggestion was also made to P.W.13 Atta Ullah Khan, A.S.I. in cross-examination that he had associated with the investigation Saddique and Bahadur Shah mentioned as suspects by the complainant initially in his statement, He admitted that he did make a search for the aforesaid persons, but, they were not traceable. Suggestion was also made to him that he associated in investigation Tariq, Ajmal alias Ajlam. It is also brought on record that the character of the deceased was not good. Therefore, I am not inclined to believe the motive put forward by the prosecution. It is settled proposition of law that medical evidence does not show that who inflicted the injury to the deceased, therefore, it is supporting evidence and does not provide corroboration as the principles laid down by the Honourable Supreme Court in Machis's case. PLD 1976 SC 695 and Muhammad Iqbal's case 1994 SCM R 1928.
17. Now I discuss the last seen evidence consists of P. W.11 Taoos Khan and P.W.12 Qasim Khan. The statements of P.W.11 and P.W.12 are contradicting each other. Taoos Khan P. W. 11 admitted in his cross---examination that Qasim P.W.12 is his uncle. Both are chance witnesses, who had seen the deceased and the convict at the place of occurrence who had quarrelled with each other. Both of them were under intoxication of hereoin. He stated in examination-in-chief in the following terms:-- "that immediately we went to the house of Muhammad Ashraf father of Javaid to condole the death of Javaid."
Whereas, P.W.12 in his cross-examination stated in the following terms:-- "that we then went to the Hujra of Miskeen Khan P.W. and there we condoled with Muhammad Ashraf father of the deceased. "
18. P.W.11 admitted in cross-examination that he of his own gave his statement to P.W.14 Shah Jehan, S.-I., who recorded the same. P.W.13 Atta Ullah, A.S.-I. stated in his cross-examination that he recorded the statements of P.W.11 Taoos Khan and P.W.12 Qasim Khan who are recovery witnesses of Chadar Exh.P.5. The presence of both the witnesses of the last seen seems to be unnatural.
19. In the present case as discussed above, there is no supporting evidence in the shape of recovery of incriminating of objects at the pointing out of the appellant or any other circumstance tending lead to the inference that the appellant was guilty of killing the deceased. It is settled proposition of law that conviction can be based on circumstantial evidence only if the facts proved are wholly incompatible with the innocence of the accused and are incapable of explanation upon any other hypotheses than that of his guilt. It is also settled proposition of law that the solitary statements of P..W.11 Taoos Khan and P.W.12 Qasim Khan who had seen the convict and the deceased together at Khaz Nazo which is a place of occurrence. In all circumstances of the case cannot form safe basis for maintaining the conviction of the appellant in accordance with the principles laid down by the superior Courts and the state of evidence on record. It is also settled principle of Criminal Jurisprudence that circumstantial evidence consisting of last seen has only corroborative value and conviction cannot be based upon it. I am fortified by the principles laid down by the Honourable Supreme Court in Mst. Resham Bibi's case 1997 SCM R 1416 and observations as under:-- "The last seen evidence for basing conviction thereon as circumstantial evidence shall be incompatible with the innocence of the accused. Such evidence shall be accepted with great caution and be scrutinized minutely for reaching a conclusion that no plausible conclusion can be drawn therefrom accepting the guilt of the accused."
In view of what has been discussed above, the appeal is accepted. The revision petition filed by the complainant is dismissed.