' KHAWAJA MUHAMMAD SAEED, J.---The above titled two appeals have been filed against a consolidated judgment of the Shariat Court, dated 14-2-2001, we propose to dispose of the same through this single judgment.
2. The appellant, Muhammad Ishaq, stands convicted under section 302, A.P.C. And was sentenced to transportation for life for the murder of one Muhammad Yasin Sharif son of complainant- appellant Muhammad Sharif in Cross Appeal No,8 of 1999.
3. The facts relevant for the decision of these two cross appeals briefly stated are that on the written report lodged on' 18-4-1996 at 10-00 p.m., Exh.'PM', by Muhammad Sharif about the murder of his son Muhammad Yasin a case under section 302, A.P.C. Was registered at Police Station Bhimber against unknown assailants. According to the report the slain son of complainant left Factory Area for home on 18-4-1996 at 10-00 p.m. In his Ford Pick-up. The complainant who was still in his factory received a message from A.S.I. Zulfiqar, the incharge of a Police Patrol Party, that his son Muhammad Yasin is seriously injured and is lying unconscious on the driving seat of his vehicle which is parked on the left side of the road near Mughlora Cross. Upon this information complainant Muhammad Sharif rushed to the place of occurrence and found the dead body of his son in a pool of blood on the driving seat of his vehicle. He alleged in his written report that some unknown persons killed his son with fire-arms. On this report a case under section 302. A.P.C. Was registered against unknown persons. During the investigation Ford Vehicle No,AJKD-59 was taken into possession. On the driving seat of this vehicle_the dead body of Muhammad Yasin was found lying. The engine of the vehicle was running and its headlights were on. The Police found two crime empties on the mat of the front seats and two crime empties just on the front of the back door. The covers of both front and back seats were stained with blood alongwith the mats which were seized by the Police, through recovery memo. Exh. 'PB' in the presence of Raja Muhammad Farooq Khan and Raja Muhammad Sagheer Khan. The dead body was taken to the hospital for the purpose of post-mortem which was conducted by the doctor, who noticed following five injuries caused with fire-arms on the person of the slain Muhammad Yasin.
"(1) "1/4" Circular fire-arm wound on top of the Scalp blackening and burning of hair present diverted down-word (entrance wound).
(2) 2" x 1" wound on right side of neck (at the middle) just anterior to the sterno cicidomastoid muscle. (exist Injury No,1)
(3) Fire-arm injury 1/2" x 1/2" on front of neck diverted down 'words from the issue is missing.
(4) 1/4" Circular fire-arm injury (In right thigh at the junction of middle and lower one thick (entrance) diverted posteriorly and down-wound.
(5) 1/3" oval shaped wound on back of right thing 2" below the above injury (Exit Injury No,4)."
' In the wisdom of the doctor Injury No,1 caused with fire-arm resulted into the death of the deceased. The convict-appellant was taken into custody by Police on 21-4-1996. On the same date a 'Parna' stained with blood was recovered from him vide Exh.'PD'. A .30 bore pistol stained with blood was also recovered from him vide memo. Of recovery Exh.'PE' at his instance on 23-4-1996 in the presence of Raja Muhammad Sagheer Khan and Raja Muhammad Farooq Khan who signed recovery memos. Exhs.'PD' and 'PE' of these two articles respectively. The bloodstained articles, including the apparels of the slain seized by Police at the time of postmortem were sent to the Chemical Examiner who reported back that all these items were stained with blood and are being sent to Serologist of Government of the Punjab for .The determination of original blood and blood group. His report is on the file of the trial Court at page 39. The report of Serologist is also on record, however, it has not been tendered in evidence. According to this report all items contained stains of human blood, however, the blood group could not be ascertained as human blood stains were not found sufficient .On these articles for this purpose. The weapon of offence, i,e, .30 bore pistol, recovered on 23-4-1996 was sent to the Arms Expert on 18-6-1996 alongwith the empties and jacketed bullets recovered from Ford Pick-up No,AJKD 59, who reported back that the crime jacketed bullet had been fired from the recovered 30-bore Pistol. He also noticed the strikers dip on test empties similar to those empties which were recovered by Police from the Ford Pick-up. This report was tendered in evidence and is marked as Exh.'PL'.
4. In the light of investigation, besides convict-appellant Muhammad Ishaq, his close relative Muhammad Saleem son of Muhammad Nazir were also arrested along with Fazal Karim and his son Muhammad Iqbal and sent to face trial before the District Court of Criminal Jurisdiction Bhimber. Accused Muhammad Saleem absconded during the trial. Proceedings under section 512, Cr.P.C. Have been taken against him, however, as no evidence connecting Muhammad lqbal and his father Fazil Karim was available on record, therefore, these two accused persons were not examined by the trial Court under section 342, Cr.P.C. At the end of his trial Muhammad Ishaq was held responsible for the murder of deceased Muhammad Yasin and thus, was convicted under section 302, A.P.C.
And awarded 15 years rigorous imprisonment and held entitled to avail benefit of section 382-B, Cr.P.C.
5. The conviction order recorded against him by the trial Court was assailed by him in appeal before the Shariat Court on 17-6-1999. Prior to that for the enhancement of his sentence, Muhammad Sharif, the complainant in the case, and the appellant before us in Criminal Appeal No,8 of 2001 had also filed an appeal on 1-3-1999. Both these appeals were disposed of through a consolidated judgment by the learned Judge in the Shariat Court. The appeal filed by Muhammad Sharif was dismissed, however, while dismissing the appeal of the convict appellant the sentence of 15 years rigorous imprisonment awarded to him by the trial Court was amended and he was awarded life imprisonment. In the wisdom of the learned Judge in the Shariat Court the convict- appellant was entitled to avail the benefit of section 382-B, Cr.P.C.
6. Mr. Liaquat Ali Khan, the learned counsel for convict-appellant Muhammad Ishaque, argued that this is a case of blind murder. His client who belongs to Pakistan has been involved without any justification in this case. According to him his client was arrested after three days of the occurrence and a blood-stained 'Parna' and 30 bore pistol stained with blood are alleged to have been, recovered from him. According to him both these recoveries were witnessed by two witnesses who are related to. Complainant-appellant Muhammad Sharif. No person from the locality from where these items were allegedly recovered at the instance of his client were cited or produced as witness to the said recoveries. Even otherwise in the light of the statement of Raja Muhammad Sagheer Khan, a witness of recovery, the recovery of crime weapon and 'Parna" from his client is not proved. He is support of his contention relied on the statement of Raja Muhammad Sagheer Khan and also referred a case titled Lalan and 2 others v. The State (1976' PCr.LJ 52). In this case the recovery was not relied as according to eye-witnesses the accused party had run away from the scene of occurrence with their crime weapons. Subsequently pistols and bullets were recovered on their instances from a place which in the wisdom of the Court was accessible to public. He also relied on another authority Title Hamzo and 2 others v. The State (1972 PCr.LJ 478). In this case the murder took place during a cloudy night when dim moonlight was accepted by prosecution witnesses who had disclosed in their evidence that they identified the accused persons from their voice. The articles recovered in this case were not sealed and packed at the place of occurrence.
They were sealed at Police Station. In the light of these facts the accused persons were extended the benefit of doubt and acquitted.
7. According to the learned counsel for the convict appellant, it is out of imagination that why his client had not washed his 'Parna' and pistol which were found stained with blood when these were recovered after three days of the incident respectively when he had sufficient time of three to five days to wash these articles and remove the blood stains if these were present on them. He further argued that there is no sufficient credible evidence available on record to connect his client with the murder of deceased Muhammad Yasin. Dure to this reason, according to learned counsel, no motive has been set up by the prosecution to establish his involvement and guilt. He in support of his contention relied on a case titled Maqbool Ahmed v. The State 1992 SCM R 2279 in which it is laid down that prosecution must collect such evidence against accused persons which is free from doubt and suspicion. In this case while allowing the appeal of the appellant it was held that satisfactory motive alleged by prosecution plays an important role in a case entirely dependent on circumstantial evidence. In this case the motive could not be proved by the prosecution as such keeping in view the discrepancies in the statements of the prosecution witnesses in respect of other collateral circumstantial evidence the accused was given benefit of doubt and acquitted.
8. He further argued that the prosecution has wrongly involved the appellant in this case on the ground of last seen evidence which by itself is a very weak type of evidence and without corroboration from other circumstantial evidence is never considered sufficient to record conviction of accused persons involved on such evidence.
9. He further argued that Raja Muhammad Sagheer Khan a recovery witness like Haq Nawaz was declared hostile, however, certain portions of their evidence which were supporting the case of the prosecution were used in aid of prosecution version whereas the doubts created by these hostile witnesses should be resolved in favour of his client. His next objection is that beside recovery of weapons being highly doubtful even the pistol was sent to the Fire-arm Expert along with crime empties and bullets after the delay of more than two months and no proper explanation has been given for this inordinate delay. He is support of his contention has relied on Ilam Jan v. The State (1997 PCr. LJ 169). In this case the benefit of doubt was extended to the accused person on the ground that recovery of pistol, the weapon of offence, was found highly doubtful, moreover it was not kept in safe custody by the Investigating Officer who sent it to the Fire-arm Expert for his opinion after the delay of more than two months and was not able to justify this delay in his evidence. This was a case of blind murder, therefore, in this case even last scene evidence was not found worth credence, therefore, accused was acquitted by giving benefit of doubt to him on account of above referred infirmities found in prosecution case.
10. While controverting the arguments of the learned counsel for the convict-appellant, Mr. Muhammad Reaz Alain, the learned counsel for the complainant, argued that prosecution has successfully brought home the guilt of the appellant through circumstantial evidence. According to him Haq Nawaz and Constable Altar have proved beyond doubt that the deceased was last seen alive in the company of the convict-appellant and his cousin Muhammad Saleem. He further argued that complainant had no enmity with the convict-appellant, therefore, if his relatives have witnessed the recovery of the blood-stained 'Parna' and pistol at the instance of the convict- appellant that shall make no difference. According to him it is proved that the convict-appellant himself led the police party to the places from where pistol, the weapon of offence, and 'Parna' stained with the blood of slain Muhammad Yasin, were recovered. He further argued that the convict-appellant in his statement under section 342, Cr.P.C. Has taken the plea of the false implication but has not pleaded any enmity with the complainant and proved the same through any evidence. He further argued that Fire-arm Expert has confirmed this view that the crime empties and jacketed bullets recovered from Ford Pick-up No,AJKD-59, which at the time of the incident was under the use of deceased Muhammad Yasin, were fired from 30-bore pistol which was recovered at the instance of the convict-appellant. In support of his contention he relied on a case titled Allah Ditta v. The Crown (1969 SCM R 558). In this case the deceased was last seen alive in the company of accused. This case was one of circumstantial evidence. The accused was convicted and sentenced to death for the murder of Mst. Sairan by the trial Court, which remained intact up to Supreme Court. The learned counsel also relied on Mir Muhammad v. The State (1995 SCM R 614). In this case the recovery was made at the instance of the accused person which was not witnessed by the inhabitants of the locality. The recovery was challenged on the ground that provisions of section 103 of Cr.P.C. Were not followed while making recovery. The Supreme Court of Pakistan turned down this objection on the ground that Police officials have no enmity with the appellant, therefore, their evidence cannot be rejected merely on the ground that they were part of the Investigating Team. It was further laid down that the appellant in that case had led the police to his house and pointed the place wherefrom the gun was recovered so it was not the case in which search warrant is obtained from Magistrate for conducting search of the house of any person. According to the apex Court of Pakistan the plain reading of section 103, Cr.P.C. Would show that the provisions of this section apply to a case where the police conduct search of a house/place to recover an article for which search is to be made under the search warrant issued by the Magistrate and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused. The recovery to be made on the pointation of the accused is relevant under Article 40 of the 'Qanun-e-Shahadat', 1984. The association of the two respectable inhabitants of the locality is, therefore, not required in such case where the accused himself leads the police to a particular place and gets the article recovered.
11. The next authority referred to by the learned counsel for the respondent is Allanditto v. The State (1968 SCM R 378). In this case there was no direct evidence, however, accused was sentenced to transportation for life on three grounds:---
(i) that the deceased was last seen with him;
(ii) that he had exclusive knowledge of place where body of deceased was buried; and
(iii) the recovery of articles of deceased was made at his instance.
12. While meeting the arguments of the learned counsel for the convict-appellant that the Courts below have wrongly relied upon those portions of evidence of hostile witnesses which were supportive of the prosecution case, he relied on Muhammad Niaz Khan v. The State (2000 M LD 1419), in which it is laid down that in a criminal case the evidence of a hostile witness is not to be discarded as a whole merely on the ground that such witness has turned hostile. It is further laid down in this case that "the law on the subject stands settled that those 1,ortions of the evidence of a hostile witness which ring true can be used in support of the prosecution case. The real test is as to whether in some portions of the evidence of hostile witness he speaks truth with regard to some events or not and if a hostile witness highlights some features of the occurrence which ring true those could be easily relied upon in support of the story of the prosecution".
13. We have considered the submissions made by the learned counsel for the parties with utmost care and with their help have gone through the entire case. We agree with the learned counsel for the convict-appellant that this is a case of unseen crime, as there is no ocular testimony. The entire case built up against the convict-appellant depends on circumstantial evidence. We, therefore, feel it expedient to discuss in coming part of this judgment, each piece of evidence to satisfy ourselves whether the Courts below have rightly convicted the appellant Muhammad Ishaq in this case or not. The prosecution has set up the case on three grounds. Firstly that the deceased was last seen alive in the company of convict appellant and absconding accused Muhammad Saleem.
According to prosecution version the deceased and his father returned from Mirpur to their factory at 6 a.m. On the date of occurrence, 'P.W.' Abdul Majeed was posted as Gunman at the gate of the factory. According to this witness the complainant inquired from him about any visitor during his absence from the factory. In reply to this quary he told him that some distributors from Lahore are waiting for him. Ile also informed him that convict-appellant, an employee of the factory, and his nephew Muhammad Saleem had also visited the factory in order to see deceased Muhammad Yasin. According to the complainant he became busy with the distributors who belonged to Lahore and were waiting for him in the room. The convict-appellant Muhammad Ishaq and Muhammad Saleem had a meeting with deceased Muhammad Yasin in his room and had their dinner with the deceased. According to Abdul Majid, Gunman, the convict-appellant and his nephew Muhammad Saleem left the factory at 10-00 p.m. After some time deceased Muhammad Yasin also left the factory in his Ford Pick-up. He kept a message for his father that he has taken his dinner and after getting his vehicle refuelled from a Filling Station he would go home. Haq Nawaz, an employee of the Shakir Filling Station, in his evidence has stated that deceased came to his Filling Station and got his vehicle refueled from there. He was accompanied by two persons. Muhammad Altaf Constable No,1188 is the third witness who on this night was posted for duty at Bhring Check Post.
According to this witness he stopped the vehicle of the deceased and inquired from him about his two companions. The deceased told him that person sitting in the front seat with him is his trustworthy employee whose name is Muhammad Ishaq and the person sitting in the back seat is the nephew of convict-appellant Muhammad Ishaq whose name is Muhammad Saleem. This witness also identified the convict-appellant when he appeared for his evidence in the Court. From the evidence of Abdul Majeed, Gunman, it is established that convict-appellant and his nephew Muhammad Saleem kept on waiting for deceased Muhammad Yasin in his room located in the factory of the complainant-appellant and that they left factory few minutes earlier than the deceased. In the same way Haq Nawaz is a natural witness as his being an employee of the Shakir Filling Station is not disputed. According to this witness at about 10-30 p.m. At night the deceased came at his Filling Station for refueling his vehicle No,AJKD-59. He has deposed that deceased was accompanied by two unknown persons. At this stage on the request of the Public Prosecutor this witness was declared hostile as he had not owned the story of the prosecution that convict- appellant and his nephew were sitting with him. However, as said earlier this witness had admitted that deceased was accompanied by two more persons when he came at his Filling Station. The defence had not taken risk to ask from him, that convict-appellant was not one out of those who were sitting with the deceased in his vehicle. However, Muhammad Altaf, Constable No,1188 identified the convict-appellant during the trial and has owned the case of the prosecution that the deceased was seen alive soon before his death in the company of convict-appellant and his nephew Muhammad Saleem. It is the prosecution case that soon after these events the complainant received a message from A.S.I. Zulfiqar, In charge of a Police Petrol Party, that his son was lying in pool of blood Vehicle No,AJKD-59 which was parka at the left side of the road. In the light of this evidence it is proved beyond any shadow of doubt that deceased was last seen alive in the company of convict-appellant Muhammad Ishaq and his nephew Muhammad Saleem who presently is an absconder.
14. We would like to attend the next objection of the learned counsel for the convict-appellant, that the recovery of weapon of offence, i,e, 30-bore pistol and 'Parna' is highly doubtful as no witness of the locality was associated at the time of recovery and secondly that Raja Muhammad Sagheer Khan, a witness of recovery, was declared hostile. The weapon of offence, as said in the earlier part of this judgment, was recovered at the instance of the convict appellant on 23-4-1996 through recovery memo. Exh. PE. Raja Muhammad Farooq Khan and Raja Muhammad Sagheer Khan were the witnesses of this recovery. Raja Muhammad Farooq Khan has supported the case of the prosecution that the said recovery was made at the instance of the convict-appellant by the Investigating Officer who sealed this weapon at the place of recovery and prepared recovery memo. Exh. 'PE' which he and other recovery witness Raja Muhammad Sagheer Khan singed there.
The weapon of offence was recovered from the room of 'Gonga Pir Sahib' which situated in the desolated area. This witness as well as the Investigating Officer in their statement have clearly stated that no witness from the locality was present at the time of recovery. From the reading of Exh.'PE' it becomes clear that the place of recovery is a desolated place. According to Raja Muhammad Sagheer Khan, the other recovery witness, the memo. Of recovery of the articles which were recovered in this case by the police were prepared in police station where he signed them.
Except this he has supported the whole case of the prosecution. He has admitted that from convict-appellant a 'Parna' was recovered by the police which contained blood-stains. In the same way he has stated that a pistol was recovered from convict-appellant Muhammad Ishaq whose barrel was stained with blood. In Court statement this witness identified the pistol that the same was , recovered from convict-appellant. No question was put to him that this pistol was not recovered from convict-appellant or the recovery of 'Parna' from the convict-appellant is not correct. Mere this fact that the recovery memos. Were prepared or his signatures were obtained at Police Station Bhimber does not vitiate the whole prosecution version. In the same way mere this fact that the recovery witnesses are related to complainant is not sufficient to reject their evidence because in this case the defence of the convict-appellant is a plea of false implication by police and not of enmity with the complainant. Therefore, both the Courts below have rightly relied upon the recoveries effected in this case by the police. The pistol recovered from the convict-appellant along with crime emptied and jacked bullets recovered from Ford Pick-up were sent to Fire-arm Expert who in his report confirmed that crime empties and bullets found in Ford Pick-up were fired from 30- bore pistol recovered from the convict- appellant. We agree that these recovered items were sent to Fire-arm Expert after considerable delay by the police. We have repeatedly observed with concern the delay which takes place in sending the bloodstained items and even Fire-arm empties and bullets to the concern laboratories for opinion and have expressed our concerned repeatedly that such delay used to result in the loss of some important evidence and it is done by the police to extend some benefit to the accused party. In this case even the apparels recovered from the dead body of the deceased in the hospital which were smeared with blood of the deceased were sent along with other items after more than two months . The blood group even on the apparels of the deceased could not be ascertained as the blood on them was not found sufficient by the concerned expert on account of delay. If these items would have been sent promptly the prosecution might well have had in their possession a very important evidence that blood found on the 'Parna' and on the barrel of the 30-bore pistol recovered from convict- appellant had the same group which the apparels of the deceased had We would like to send a copy of this judgment to the Inspector-General of Police for his appropriate instructions for future to all the Investigating Officers in this regard.
15. The other objection of the learned counsel for the appellant is that his client had sufficient time to destroy the pistol as well as 'Parna' or at least wash blood stains on 'Parna' and barrel of the pistol. The 'Parna' was recovered on the same day when convict-appellant was arrested by the police, why the convict-appellant did not wash the pistol and 'Parna' can best be explained by him.
However, such-like objection was raised in a case titled Sardar Ali and others v. The State (PLD 1967 SC 217). In this case it was resolved by the learned Judges of the apex Court of Pakistan as follows:- -- "Mr. Nazir Ahmad Khan argued that it was improbable that the accused persons, who had been absconding for three days should not have made away with arm at least washed their blood- stained clothes in the interval, and therefore, the recovery of the clothes should be regarded as doubtful. A similar argument was raised and has been dealt with by this Court in the case Nawab and others v. The State (PLD 1965 SC 522), where it has been pointed out that when as in this case, persons accused of serious offences, have had themselves presented before the police in the course of the investigation by a respectable of the village, they usually do so in order to avoid the rigors of an investigation and must be prepared to satisfy the Investigating Officer that they are indeed the persons for whom the Police had been searching, so that the investigation need not be continued further. It is not unnatural that such persons should make over incriminating evidence, so that further pressure upon them or their relations should cease. No responsible Police Officer would discontinue his investigation merely because persons had presented themselves before him and either admitted their involvement or for the reason that they had been named in the initial report. He would need to satisfy himself that he had enough evidence to make out a complete case. It should be remembered also that in this case the motive shown is satisfaction of honour."
16. The authorities referred to by the learned counsel for the parties have been discussed by us in this judgment. The facts of these cases are distinguishable so far as the facts of the present case re concerned. It is rightly said that the facts of two criminal cases cannot be identical, therefore, it is repeatedly held by the superior judiciary of the Sub-Continent that every case of criminal nature proceeds on its own facts and circumstances, and a rule of universal application cannot be deduced from the decision of any particular case. We would like to refer only three judgments from the apex Court of Pakistan in this regard. In Safdar Abbas and two others v. The State PLD 1987 SC 467 it was laid down as follows:-- ' It may be noted that principles laid down in criminal cases are always founded on the facts and circumstances of each case and cannot be loosely applied in an omnibus manner...."
' The apex Court of Pakistan in The State v. Rab Nawaz and another (PLD 1974 SC 87) laid down that:--- " But the argument in my opinion proceeds on a superficial reading of tile precedent cases in which the facts were materially different. It also overlooks the general principle, that everything said in a judgment more particularly in a criminal judgment must be understood as having been said with reference to the facts of that particular case...."
' In The State v. Mushtaq Ahmad (PLD 1973 SC 418) it was laid down as follows: " Everything said in a judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case "
17. In this case as is rightly observed by the learned Judge in the Shariat Court, the real motive for murder is shrouded in mystery. However, we are satisfied that deceased Muhammad Yasin was last seen alive in the company of convict-appellant and his nephew Muhammad Saleem; that the convict-appellant had knowledge of the place where he had kept his pistol after the occurrence, and that the recoveries of bloodstained 'Parna' and pistol were made by Police at his instance and further that the crime empties found in the Pick-up under the use of the slain Muhammad Yasin were fired from the pistol of the convict-appellant. The Courts below have, therefore, rightly held him responsible for the murder of Muhammad Yasin.
18. In view of above, the appeal of the convict-appellant having no force, is dismissed. The complainant in this case has also preferred an appeal against the judgment of the Shariat Court seeking death penalty for him. In this case we have noticed that deceased Muhammad Yasin and convict-appellant had very cordial relations. Like motive the circumstances which resulted in the murder of Muhammad Yasin from convict-appellant and his nephew are shrouded in mystery, therefore, it is not felt proper by us to award him death penalty as is requested by the complainant-appellant. The sentence awarded to the convict-appellant in our view is proper in the circumstances of this case. In view of above, this appeal is also dismissed.
Appeals dismissed/