' MUHAMMAD NAWAZ ABBASI, J.--- The appellant namely Zulfiqar Haider alonwith Imtiaz Ahmad, acquitted accused, faced trial for the charge under section 302/34, P.P.C. For committing the murder of Tanvir Tariq before the Special Court, established under Suppression of Terrorist Activities Act, 1975 at Islamabad. The learned trial Judge having found the appellant guilty of the charge convicted and sentenced him to death under section 302(b), P.P.C. Vide judgment, dated 25-11-1999. In addition the appellant was directed to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default in the payment of compensation he was directed to undergo S.I. For six months. Imtiaz Ahmad co-accused of the appellant was acquitted from the charge.
2. The brief facts of the prosecution case as contained in the complaint Exh.P.D. Lodged by Munir Ahmad at Police Station Margalla, Islamabad are that the appellant was running a shop in the name of Lareb Centre in G-9 Markaz. Tanvir Tariq deceased with an amount of Rs,25,000 of Committee paid visit to his shop in G-9 Markaz when did not return for a considerable time, he sought information, from the appellant who forced the complainant that the deceased approached him on that day for purchase of China Silk and left his shop at 10-45 a.m. On his instructions to come in the evening but he did not turn up. The complainant lodged a report at police station suspecting Zulfiqar Haider and Imtiaz to have committed some mischief and consequently a case was registered against them under section 364/34, P.P.C. At Police Station Margalla on 31-3-1997. Later on 2-4-1997 on the recovery of dead body from the jungle near the Faisal. Mosque, section 304/34, P.P.C. Was added. The initial investigation was conducted by, Bashir Ahmad, S.-I. Who recorded the statement of witnesses and arrested the accused on 31-3-1997. The investigation was then transferred to C.I.A. Staff. The dead body of the deceased was recovered on the pointation of the accused on 2-4-1997 from a deserted place behind the Faisal Mosque and memos. Exh.P.J. And Exh.P.Q. Were prepared accordingly. The S.-I. Also prepared rough site plan Exh.P.R. Of the place of recovery of dead body. On the search of dead body an amount of Rs,41,400 and a comb Exh.P.6 was recovered and taken into possession vide memo. Exh.P.K. The S.-I. Having found an empty Exh.P.5 lying near the dead body took the same into possession vide memo. Exh.P.L.
And also secured blood-stained earth vide memo. Exh.P.M. Bashir Ahmad and Abdul Hafeez constables attested all the recovery memos. The Investigating Officer then having prepared the inquest report Exh.P.S. Dispatched the dead body for post-mortem examination vide receipt Exh.P.U.
And took into possession the last-worn clothes of the deceased i,e, Shalwar Exh.P.7, shirt Exh.P.8, pair of socks Exh.P.9/1-2, sweater Exh.P.10 and Banian Exh.P.11 vide memo. Exh.P.H. Produced before him by a constable. The appellant in police custody led to the recovery of pistol Exh.P.3 from his flat and four live bullets Exh.P.4/1-4 which were taken into possession vide memo. Exh.P.G. By the Investigating Officer. The sealed parcel and live bullets were delivered to Moharrir of the police station. Muhammad Akram P.W.1 Draftsman prepared the site plan Exh.P.A. And Exh.P.A./1 on the direction of police and Haji Sadaqat Ali, P.W.2 uncle of the deceased identified the dead body at the time of post-mortem examination. Dr. Muhammad Naseer, P.W.3 having conducted the autopsy of the deceased found the following injuries on his person:-- "(1) Fire-arm entry wound with no blackening but slightly charring on the right mastoid region measuring 2 x 1 c.m. And which was 5 c.m. Inferolateral to the occipital protuberance. . (2) Fire-arm exit wound on the left side of the forehead which was just above the left eyebrow measuring 7 x 4 c.m. Edges of the bone were everted and in this exit wound maggots were present and through the brain matter and its membrain maggots were coming out and foul smell was coming out from the cranial cavity. Whole membranes were greenish in colour and the part of the brain which was exposed through the wound was greenish in colour.
(3) Distal phalyns of middle finger of right hand was completely separate. All these injuries were ante-mortem in nature.
' Membranes of the skull were ruptured at the site of wound Nos.1 and 2 and brain matter was shattered on left side and over the cerebral and cerebral area. Scalp walls were ruptured at the site of wound and left frontal bone was fractured. Right mastoid bone was also fractured. Spinal was fdund healthy.
' On thoracic examination all the organs were found healthy. On abdominal examination all the organs were found healthy and stomach and small intestine contained small amount of faecal matter."
3. Munir Ahmad, P.W.5, the complainant of the case stated that the accused separately led the police party to a jungle behind Faisal Mosque and pointing out the place of murder of the deceased and on their pointation dead body was recovered. The witness identified the waist coat Exh.P..1 and pair of shoes Exh.P.2/1-2 belonging to the deceased.
' Muhammad Maqbool P.W.6 a shopkeeper has stated that Tanvir Tariq having received Rs,11,000 from him left for his own shop. The witness stated that Zulfiqar Haider while paying visit at the shop of Tanvir Tariq stated that owners of Lareb Centre were willing to sell their shop and that he was interested to purchase the said shop and requested the deceased for furnishing guarantee to the owners of Lareb Centre on his behalf for payment to enable him to execute an agreement with the proprietor of shop. Muhammad Abdullah Rafique P.W.7 and Muhammad Naseem Raza P.W.8 stated that they accompanied the police party to the residential flat of appellant and witnessed the recovery of pistol Exh.P.13 with four live bullets in its chamber from the drawer of the bed. Ramesh P.W.10 has not supported the prosecution case and was declared hostile. Parvez Khan constable P.W.9 delivered the sealed parcel of pistol and last-worn clothes in the concerned offices at Lahore on 11-4-1997. Muhammad Dawood, P.W.4 delivered the parcels containing the empty and blood:stained each in the office of the Chemical Examiner at Lahore on 4-4-1987. Liaqat Ali, Head Constable P:W.11 being Moharrir of the police station kept the above said parcels in Malkhana in safe custody till he handed over the same to P.W.9 and 4 for onward delivery in the concerned offices. Muhammad Shafi P.W.12 was the witness of recovery from Imtiaz co-accused of the appellant. Bashir Ahmad, constable P. W.13 has witnessed the recovery of dead body, and personal belonging of the deceased. The reports of the Chemical Examiner Exh.P.V. And Exh.P.X., the report of the Forensic Science Laboratory Exh.P.Y. And that of the Serologist Exh.P.Z. Have been placed on record. The prosecution closed the evidence and the accused in their statements under section 342, Cr.P.C. Denied the charge. The learned trial Judge came to the conclusion that Zulfiqar Haider having developed rivalry with the deceased in the matter of purchase of Lareb Centre had a motive to commit the murder. The learned trial Judge in addition to the evidence of motive also while placing reliance on the evidence of pointation of recovery of dead body by the appellant and the recovery of pistol Exh.P.3 from his flat which was allegedly used as weapon of offence and as per report of Forensic Science Laboratory the empty recovered from the spot also matched with pistol Exh.P.3 recovered at the instance of the appellant held him guilty of the charge.
4. The learned counsel for the appellant has contended that Bashir Ahmad constable, P.W.13 who was associated with the investigation has categorically stated that although Zulfiqar appellant was taken to the place of recovery of the dead body but the dead body was recovered on the pointation of Imtiaz Ahmad, accused, whereas Masood Akram, S.-I. Stated that two accused were separately taken to the place of recovery of the dead body and separate memos. Exhs.P.T. And P.W.
On their pointation were prepared. The learned counsel contended that with the exclusion of evidence of pointation of the place of recovery of dead body, there was no other evidence except the recovery of empty from the spot and the pistol from the appellant which by itself was not enough to convict the appellant with commission of offence. The learned counsel submitted that the motive set up by the prosecution was not supported either by direct or circumstantial evidence.
5. The learned counsel representing the State, on the other hand, contended that no doubt Bashir Ahmad, P.W.13 has stated that only on the pointation of Imtiaz dead body of the deceased was recovered but it was in the evidence of Masood Akram that both accused separately pointed out the place of recovery of the dead body. The learned counsel added that in addition to the pointation of recovery of dead body, the matching of empty with pistol recovered from the appellant and motive of rivalry behind occurrence would be sufficient evidence to connect the appellant with the commission of offence.
6. We have heard the learned counsel for the appellant and the State at length and perused the record with their assistance. The occurrence in the present case was unseen and it was not known that in what manner and at what place the deceased was done to death. The recovery of dead body of the deceased on the pointation of the accused was not confidence-inspiring as the police officials who remained associated with the investigation have made contradictory statements and their evidence to the extent of Imtiaz was not believed by the learned trial Judge. Therefore, no weight can be given to the evidence of the said witnesses against the appellant. This is noticeable that Bashir Ahmad, Constable has stated that dead body was recovered at the pointation of Imtiaz and not Zulfiqar Haider. It is in the evidence that the empty was recovered on 2-4-1997 from the place of recovery of dead body from the jungle behind the Faisal Mosque and the pistol Exh.P.3 was recovered at the instance of appellant from his flat on 7-4-1997 and as per report of Forensic Science Laboratory the empty matched with the pistol. This may be pointed that no witness from the locality of the place of recovery of pistol was associated in the recovery proceedings. The learned counsel for the appellant has contended that the appellant was in custody of police on the day when the empty was recovered and sent to the Forensic Science Laboratory, therefore, the possibility of tampering with the empty and recovery of pistol before the despatch of the same being not ruled out, the positive result of Fire-arm Expert would not be helpful to the prosecution.
7. We having examined the evidence in detail found that apart from the evidence of recovery and the dead body there was no other evidence direct or circumstantial available on record to connect the appellant with the commission of offence. It is not known that under what circumstance and in what manner the deceased was killed and who was the assailant. It is also not known whether the deceased was fired at the place of recovery of dead body or he was killed at some other place and dead body was thrown in the jungle. The material fact relating to commission of offence being shrouded in mystery the recovery of the dead body on the pointation of the appellant even if was believable it would only be relevant for the purpose of section 201, P.P.C. And would not be an evidence to establish the charge of murder. The evidence of recovery of weapon of offence being not confidence-inspiring would not be an incriminating evidence to be used. The analysis of evidence would show that the prosecution has not been able to discharge the onus of proving the guilt of the appellant satisfactorily beyond reasonable doubt. We, therefore, allow this appeal and while extending the benefit of doubt to the appellant set aside his conviction and sentence awarded to him by the learned trial Judge and direct his immediate release from the jail if not required in any other case.