' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 34 of 1988 directed against the judgment dated 2-3-1988 passed by learned Additional Sessions Judge, Rawalpindi, whereby he convicted the appellant Pervaiz Akhtar under section 302, P.P.C. And sentenced him to undergo life imprisonment with a fine of Rs, 25,000 or in default to undergo 2' years' R.I. Fine if recovered was ordered to be paid to the -legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also granted to him.
2. The occurrence in this case took place at 10 a.m. On 20-4-1987 in the area of Mohallah Eidgah, Kaliar. Syedan situated at a distance of' 2 k.m. Towards south-east from Police Station Kallar Syedan, District Rawalpindi. The matter was reported to the police through Qurban Hussain on 21- 4-1987 at 10-05 a.m.
3. The brief facts as narrated by the complainant are that on the day of occurrence i,e, 20-4-1987 at about 10/11 a.m. He and his son Javaid Hussain were present in his house and Pervaiz Akhtar accused came to his house and summoned his son Javaid Hussain and asked him to accompany him to Chowk Pidori for some affair and his son left the house with accused in the presence of Nazar Hussain and Tariq Mehmood P.Ws. Who had come to see off his son. He, the complainant, also stated in the F.I.R. That till the lodging of the F.I.R. His son did not return to home and despite search in the adjoining area he could not be traced. The complainant expressed his suspicion against Pervaiz Akhtar that the accused might have taken his son with an intention to murder him and the programme of his son for going abroad was within the knowledge of the accused and Pervaiz Akhtar accused was also found missing. Subsequently after the recovery of dead body of Javaid Hussain the offence under section 302, P.P.C. Was added to section 364, P.P.C. Motive behind this occurrence was stopping the deceased not to go abroad by the appellant.
' After receiving information about this occurrence, Raja Banaras Khan, Sub Inspector completed all the necessary proceedings and then proceeded to spot. When he alongwith other police officials reached near the Bazar of Kalar Syedan, he received a spy information that Pervaiz Akhtar accused of this case was seen near the street of P.O. Kalar Syedan. He reached there. Pervaiz Akhtar accused/appellant was produced before him by Ghulam Mustafa Kiani and Muhammad Shaft P.Ws. He 'arrested him Who during interrogation led to the recovery of dead body of Javaid Hussain whom he confessed to have murdered. He also took the clothes of the accused vide memo. Exh.P.F.
Spots of blood were washed from the clothes but same were. Visible. During his personal search he recovered currency note worth Rs, 85 Exh.13.5. (1 to 9) and a coin P.4 vide memo. Exh.P.E. Pervaiz.
Akhtar accused while in police custody pointed out the place where the dead body of Javaid Hussain deceased was lying. He prepared the injury statement Exh.P.M. And inquest report Exh.P.N.
He also secured the articles P.9 to P.17 from near the dead body vide memo. Exh.P.G. He also secured bloodstained earth from the spot vide memo. Exh.P.H. After completing the investigation he chailaned the accused appellant under sections 302/364, P.P.C. And sent him for trial.
5. Prosecution in order to prove its case has produced as many. As 14 witnesses including Doctor, I.O. And other relevant persons. After tendering in evidence reports of Chemical Examiner Exh.P.S., Exh.P.T. And Exh.P.U. And reports of Serologist Exh . P. V . , Exh . P. W. And Exh. P. X . Learned A.D.A.
Closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty.
6. Learned counsel for the appellant after going through the evidence and other relevant record available on the file submits that it is an unwitnessed occurrence, that there is no direct evidence in this case, that the prosecution has failed to prove the motive against the appellant, that no passport or any other documents was taken into possession by the Investigating Officer about the departure of the deceased from Pakistan on the next day of the registration of F.I.R. He submits that father of the deceased was barber and according to his daily income was 20 to 25 rupees and he had given Rs,2,000 to the deceased for his departure to foreign country and that also not for employment but for pleasure trip and the fact that from where the deceased had arranged the money for going abroad has not come on record. Learned counsel further submits that dead body was not recovered at the pointation of the appellant but the I.O. Along with the complainant party had recovered the same from the fields of one Muhammad Younas, that no person from the locality from where the dead body was recovered and even from the place where the knife was recovered, was joined or made as recovery witness in this behalf, that even owner of the fields from where the dead body was recovered was not cited as witness or joined in the said recovery, that the knife was allegedly recovered on the pointation of the appellant two weeks after the recovery of dead body from the nearby place. Learned counsel for the appellant submits that the same was planted on the appellant because if the appellant had got recovered the dead body on 21-4-1987, he could have also got recovered the knife on that day. Learned counsel submits that the recovery of dead body allegedly on the pointation of the appellant is contradicted from the brief facts given in the inquest report. He submits that evidence of last seen is also not reliable. He also submits that Haji Ghulam Mustafa Kiayani P.W.9, witness of extra-judicial confession had no relation or connection with the appellant then why the appellant would go to him for making such confession.
Learned counsel further submits that according to the postmortem report conducted by P.W.12 Doctor Muhammad Hanif, the dead body of the deceased was in the stage of putrefaction. Learned counsel submits that the deceased was a person of well built and it was not possible for the appellant to have caused him 10 injuries (incised wounds) alone. Learned counsel further submits that the duration given by the Doctor between the death and the post-mortem was 30 to 60 hours, then the time of death also comes to 10/11 p.m. On 19-4-1987. Learned counsel submits that in the circumstantial evidence every chain must be linked with each other and if one misses then the whole case goes. In this regard he has also relied upon 1977 SCMR 515 and 525, 1999 SCMR 103 and
955. He has also relied upon 1983 SCMR 958, 1999 PCr.LJ 549. Lastly he submits that as far as Barkat Ali P.W. Who was owner of the Suzuki van, was not examined by the prosecution and his statement recorded under section 164, Cr.P.C. Is not admissible because same was not cross-examined by the accused/appellant and moreover, it was recorded without oath. He submits that in circumstantial evidence motive has to play a fundamental role and in this regard he has relied upon 1998 PCr.LJ 72 and 1977 PCr.L.I.
1249. He while citing these judgments submits that if motive is not proved and once it is set up then it becomes fatal to prosecution. He also submits that Haji Ghulam Mustafa Kiani witness of extrajudicial confession, is not only witness of extra-judicial confession but also witness of other 6/7 recovery articles. He also submits that it was unnatural on the part of the appellant to appear before the police having blood-stained clothes on his person. Adds that prosecution has not been able to prove its case against the appellant beyond any shadow of doubt and it is not proper to rely upon such evidence.
7. On the other hand learned State Counsel assisted by the learned counsel for the complainant submits that the motive as alleged in the F.I.R. Was also mentioned in the extra-judicial confession, that the appellant had produced the original passport and other documents about the departure of the deceased to aboard during the investigation but the same were not taken into possession but photo stat thereof were placed on the police file by the Investigating Officer and the appellant had also made an application to the trial Court for bringing the same on the record but his application was dismissed, that there is no reason to falsely implicate the appellant, that the deceased was called from his house by the appellant in the presence of the complainant and Nazar Hussain P.W. And Abdul Razzaq had seen the deceased along with the appellant in a Suzuki van which was driven by Barkat Ali P.W. (not produced) being murdered before the evidence could be recorded by the trial Court, that Haji Ghulam Mustafa Kiayani was the Ex-Chairman and notable person of the area before whom extra-judicial confession was same, that no link of chian is broken in this case, that the appellant was named at the very outset when the F.I.R. Was lodged in Police Station, Kallar Syedan, District Rawalpindi and the dead body was recovered from the jurisdiction of Police Station Rawat. In this regard he has also mentioned Rapat No, 19 dated 24-4-1987 of Police Station Rawat recorded at 4-30 p.m. Vide memo. Exh.P.L., that the recovery of knife was made two furlongs away from the place of recovery of dead body, that the witnesses produced by the prosecution are most independent witnesses, that the evidence is confidence inspiring. Except the guilt of the appellant no interference can be drawn, that explanation to prove his innocence lies on the appellant, that knife, blood-stained clothes of the accused were found to be stained with human blood, that the opinion of the doctor between death and post-mortem is a guess and no definite opinion can be given in this regard. He has also relied upon PLD 1964 (W.P.) Pesh. 167 and 1968 SCMR 378, 1969 SCMR 558, PLD' 1958 S.0 313, 1999 PCr.LJ 2110, 2126 and 1996 MLD page 1665.
They both support the judgment of the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the record available on the file. According to the complainant Qurban Hussain father of the deceased the occurrence took place at 10/11 a.m. On 20-4-1987 when the decease was taken from his house by the appellant at 10/11 a.m and according to the F.I.R. Nazar Hussain P.W. Examined as P.W. 8 and Tariq Mehmood (not produced) had seen the deceased going alongwith the -appellant. Motive given in the F.I.R. Was that Pervaiz Akhtar appellant had been telling the deceased and stopping him not to go abroad. Question arises that why he was stopping the deceased from going abroad.
No reason whatsoever has been given in the F.I.R. Which was lodged not by a stranger but by the father of the deceased. No passport or any other document including the ticket in regard for going abroad has been produced by the prosecution. This fact is also belied by the circumstantial evidence because the complainant is a barber and according to his statement his daily income is Rs,. 20 to 25 rupees. The deceased was jobless and how with these means the deceased was going abroad. According to the complainant he had given only Rs, 2,000 to the deceased for going abroad and not for job or any employment but for a pleasure trip. This is totally unbelievable story of the prosecution and only on this motive the appellant had committed the murder of the deceased is unconvincing and improbable. We disbelieve the motive set up by the prosecution in the F.I.R.
9. Now we come to the extra-judicial confession. Evidence of extra-judicial confession furnished by Haji Ghulam Mustafa Kiayani, P.W.9 is at page 32 of the paper book and he has nowhere stated that he was Ex-Chairman of the Union Council or a notable man of the area. The other witness Muhammad Shafi in this regard was not produced. Neither Haji Ghulam Mustafa Kiayani was related to the appellant nor he had any connection or friendship with the appellant then why the appellant would go to Ghulam Mustafa Kiyahi P.W.9. To make extra-judicial confession. Moreover extrajudicial confession is a weak type of evidence. It should be confidence inspiring. It may also be mentioned here that he had improved the story of motive which up by the complainant in the F.L.R.
Adding that the appellant had committed the murder of the deceased because he was asking the deceased not to;go abroad as earlier appellant wanted to go out of country but on the asking of the deceased he cancelled his programme and when the appellant told the deceased and asked him not to go out of country he did not accept his request so in this background he felt himself disgraced and thought that the deceased was a cheater so he committed his murder on this score only, is not believable. Haji Ghulam Mustafa Kiayani P.W. 9 further stated that he started towards the Police Station and when he reached Jinahpur Public High School, Kallar Syedan police party was also there and he produced Pervaiz Akhtar appellant before Raja Banaras, S.-I. This fact of his production before the S. -L Raja Banaras falsifies from the brief facts narrated in the inquest report Exh.P.M. Which is in the following words:- {{URDU TEXT}} ' So the story of Ghulam Mustafa Kiayani, P.W. That he produced the appellant before the police is totally false. Learned counsel for the appellant has also argued in this regard and has brought to our knowledge Rapat Exh.P.L. Which according to him was got registered by Raja Banaras, S.-I. In Police Station Rawat on 21-4-1987 at 4-30 p.m. Vide Rapat No,
19. This Rapat in our opinion was registered later on in Police Station, Rawat after the preparation of inquest report and not before that for the re lift that it does not find mention in the Rapat that Raja Banaras S.-I. Was also accompanied by. Qurhan Hussain the complainant, Haji Ghulam Mustafa Kiayani, Nazar Hussain, Tariq Mehmood and Muhammad Ramzan and specifically Haji Ghulam Mustafa Kiayani because from Police Station, Rawat Raja Banaras S.-I. Proceeded towards the place of recovery of dead body on the pointation of the appellant is also belied by the statement of Qurban Hussain P.W.3 F.C.
1897. He was cross-examined and during cross-examination he admitted that he companied Raja Banaras, 5.-I. And they kit the Police Station at 4 p.m. And first of all visited Rawat Police Station and then reached the place of recovery of dead body. No where he stated that the appellant was accompanying the police party to the .Place of recovery of dead body. He also admitted that he did not state in his statement before the police that appellant was present with the police party when they went to the place where the dead body was lying. He also admitted that Police Station, Kallar Syedan is 18 miles away from the place of occurrence. No public witness from the jurisdiction of Police Station Rawat and specially from the nearby place of recovery of ' dead bpdy was ever joined by the Investigating Officer. Haji Ghulam Mustafa Kiayani is not only the witness of extrajudicial confession but is also witness of recovery of dead body, blood-stained clothes of the accused, blood-stained clothes of the deceased, recovery of blood-stained knife allegedly, recovered on the pointation of the apiaant. He seems to be an interested witness for the prosecution in this case, so the recovery of dead body on the pointation of the appellant is also disbelieved from the fact narrated by Qurban Hussain P.W.3. Haji Ghulam Mustafa Kiayani P.W.9. Is resident of Police.' Station Kallar Syedan but the recovery of dead body and that of knife was allegedly made from within the jurisdiction of Police Station Rawat situated at the distance of 18 miles away. We do not believe the statement of P.W.9.
10. Now we take up the recovery of blood-stained clothes' of the accused. We are not going to believe that appellant was wearing blood-stained clothes at the time of his arrest. Every accused person who commits crime tries to destroy the incriminating evidence against him but it is unnatural that he would provide a piece of corroborative evidence against himself and while wearing blood-stained clothes why he would appear before the police. We also mention here that according to Colum No,16 of inquest report Exh.P.N. Deceased was fatty and young man having a stout body and the height was 5'-7", then how alone appellant could have inflicted 10 injuries on the person of the deceased with a knife. There are no resistance marks nearby the place from where the dead body was recovered. There are no injuries on the hand of the deceased for resisting the infliction of injuries by the accused/appellant. It may also be mentioned here that place of recovery of dead body is owned by Muhammad Younas who is not witness of recovery allegedly made on the pointation of the appellant, that at the place of recovery of dead body there were crops nearby that place, it means that it was being cultivated by some persons and how the appellant would dare to kill the deceased at that place. According to the prosecution on 21-4-1984 at 4/5 p.m. In broad daylight the occurrence had taken place.. It seems that when the dead body was recovered identity card was also recovered from the dead body and, thereafter on seeing the residential address on the said identity card the complainant was informed about the murder of the deceased.
11. Now we take up the medical evidence, as the learned counsel for the complainant had submitted that time of death is corroborated by the time of occurrence which took place on 21-4- 1987 at 10/11 a.m. When the deceased was taken from his house by the appellant and after 4/5 hours he was murdered. The duration given by doctor who conducted the post-mortem examination on the dead body of the deceased on 22-4-1987 at 10 a.m. Is from 30 hours to 60 hours. If the maximum duration of 60 hours is taken into consideration then the death of the deceased took place on 19-4-1987 at 10 p.m. The position of the dead body was that the same was in the stage of putrefaction, moreover skin was easily pealed off and hair of the deceased could easily be detached. From this we can conclude that the deceased was not murdered on 20-4-1987 at 4/5 p.m. Moreover, it was 21st of April, 1987 when the summer season starts. It is not believable that the deceased was wearing sweater was mentioned by Doctor Muhammad Hand P.W.12. As the learned counsel for the complainant has referred Modi's Medical Jurisprudence and Toxicology, we have also gone through the Chapter of Putrefaction and Decomposition. After going through the same, we are of the opinion that the putrefaction which had taken on the dead body of the deceased could not have taken place if the deceased had met his death on 20-4-1987 at 4/5 p.m.
As alleged by the prosecution but in our opinion the same had taken place at least 20 to 30 hours before the date and time mentioned by the prosecution. ,So, in our view the medical evidence is also in fact inconflicted with the prosecution version about the time of occurrence. It is well settled principle that a case which is based on the circumstantial evidence, no link in the chain of evidence should be missing and all the circumstances must reach the guilt of the accused.
Reliance is placed on 1999 SCMR 955 (Ali Khan v. The State and 1998 PCr.LJ 72), Maqbool Ahmad alias Kaloo v. The state in which it was held that every link in circumstantial evidence should be proved by cogent and convincing evidence and if not then no conviction can be awarded or maintained to the accused.
12. After having heard the learned counsel for the parties and also gone through the submissions made by the learned counsel for the parties we are of the view that prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. The evidence of the prosecution is not such confidence-inspiring which can lead us to the only conclusion that appellant is guilty of the murder of the deceased.
13. The upshot of the above discussion is that this appeal is accepted and conviction and sentence awarded by the learned trial Court is set aside. The appellant is on bail. He is ordered to be discharged from his bail bonds.