1999 PLP 468 (MLD)

ABDUL HAMEED DOGAR, J.

By this appeal, appellant Muhammad Iqbal has challenged the judgment dated 12-5-1993 of the learned Judge, Special Court No.1II for Suppression of Terrorists Activities, Karachi, whereby he was convicted under section 302, P.P.C., and sentenced to imprisonment for life. He, however, was not awarded benefit of section 382-B, Cr.P.C. in the computation of his sentence.

2. Precisely, the facts of prosecution case are that Mst. Jamila wife of Muhammad Ramzan, brother of complainant Ali Muhammad, is Bengali and in their neighbourhood reside Abdul Sattar, Haji Salahuddin and Muhammad Alam, by caste Balouch. The wives of Abdul Sattar and Salahuddin being Bengali used to visit Mst. Jamila in her husband's house. About two months prior to the incident they eloped away and the Balouchs had firm suspicion that Mst. Jamila and deceased Ali Tahir Bengali had the hand in their elopement. The facts further reveal that during that period Abdul Sattar had gone in the house of complainant's brother, duly armed in presence of Muhammad Iqbal and issued threats of dire consequences, in case, their wives were not returned and had also snatched away the child of Mst. Jamila who was returned later on and because of that they were on strained relations. According to the complainant on 7-3-1992, at about 10.00 a.m., while he was available in his house, one Muhammad Mahmood came to him and informed him that the dead bodies of his brother Muhammad Ramzan and Abu Tahir Bengali are lying in his godown. On such information the complainant and his inmates went there and found the dead bodies for Muhammad Ramzan and Abu Tahir Bengali in pool of blood with fire-arm injuries on their persons. The complainant further narrates that appellant Muhammad Iqbal also used to visit the house of deceased Muhammad Ramzan and he has firm suspicion that Abdul Sattar, Haji Salahuddin and Muhammad Alam have committed the murder of his brother Muhammad Ramzan and Abu Tahir Bengali with some fire-arms during the night hours. The case was registered as Crime No.32 of 1992 at Police Station Sukhan Police arrested accused Abdul Sattar, Haji Salahuddin and Muhammad Alan, nominated in the F.I.R and let them off after interrogation finding no evidence against them. The case of prosecution further is that P.W. Haji Ali Muhammad during investigation disclosed to the police that he had seen a China rifle in the possession of appellant Muhammad Iqbal while sitting in the house of deceased Muhammad Ramzan and on such basis he was arrested. Police also arrested accused Quaid-e-Azam and Abdul Majeed after interrogating appellant Muhammad Iqbal. All the three accused were challaned before tile abovementioned Court to face the trial.

3. A charge under sections 302/34 and 395/34, P.P.C. was framed against the appellant and co-accused respectively, to which they pleaded no guilty and claimed trial.

4. At the trial prosecution examined P.W.I complainant Ali Muhammad, who produced copy of F.I.R, mashirnama of arrest of appellant Muhammad Iqbal, mashirnama of arrest of co-accused Quaid-e-Azam and recovery of China rifle, mashirnama of arrest of co-accused Abdul Majeed, tnashimama of recovery of cloth from appellant Muhammad Iqbal, mashirnama of recovery of golden necklace from appellant Muhammad Iqbal and mashirnama of recover, 20 empties of 7.62 China rifle from appellant Muhammad Iqbal, P.W.2, S

1. Riaz Hussain, who produced inquest reports of deceased and tnashirnama of Wardat, P.W.3, Muhammad Mahmood, P.W.4, Mst. Wakellan, P.W.5, Mst. Jamila, P.W.6, Faqir Muhammad, A.C.M. III, Karachi (East), who produced 164, Cr.P.C. statements of P.W. Allah Maher, Mst. Wakellan, Alam Din and Haji Ali Muhammad, P.W.7, Haji Ali Muhammad, P.W.8, Dr. Khalil Ansari, who produced post-mortem reports of deceased Muhammad Ramzan and Abu Ali Tahir and P.W.9, Hashim Khan, Investigating Officer, who produced the Medical Certificate of cause of death of deceased, Chemical Examiner's Report, F.I.R. in Crime No.202 of 1991, Ballistic Expert's Report, memo of personal search of Abdul Sattar, Haji Salahuddin and Muhammad Alam, Photo copy of confession of appellant Muhammad Iqbal. Ghulam Mohiuddin, A.C.M., Court No. VIII, Karachi (West) was examined as Court Witness No.1 and then prosecution closed its side.

5. The appellant as well as co-accused in their respective statements under section 342, Cr.P.C. denied the case of prosecution and claimed to be innocent. The appellant has stated in his statement that he has been falsely implicated due to enmity with the witnesses, who deposed against him at the instance of Investigating Officer, Hashim Khan. None of them either examined themselves on oath, as required under section 340(2), Cr.P.C. nor led any evidence in defence. The trial court framed the following point for determination:- (1) Whether present accused Muhammad Iqbal (2) Abdul Majeed and (3) Quaid-e-Azam committed this murder of deceased Ramzan and Abu Tahir on the said date in Charbi Godown, situated at Road No.10, Cattle Colony, New Abadi, Landhi Karachi in furtherance of their common intention in the way and manner as alleged by the prosecution and they are responsible persons who killed deceased Abu Tahir and Muhammad Ramzan?"

6. On the assessment of evidence, the appellant was found guilty under section 302/34, P.P.C. and was convicted and sentenced as above, whereas co-accused Quaid-e-Azam and Abdul Majeed were acquitted by giving benefit of doubt.

7. We have heard Mr. Sardar Muhammad Ishaque, learned counsel for the appellant and Mr. Habib Ahmed, learned Assistant Advocate-General at length and have perused the record and proceedings of the case.

8. Learned counsel for the appellant mainly contended that the incident is unwitnessed one and the entire prosecution case is based on circumstantial evidence and the learned trial Court has failed to prove the same beyond shadow of doubt. He argued that conviction has mainly been based merely on the recovery of China rifle, said to have been recovered from the appellant. According to the learned counsel, trial Court has misconceived this piece of evidence. In fact the recovery of the said rifle was not effected from the appellant, but it was co-accused Quaid-e-Azam who produced the same from his house. Mr. Sardar Muhammad Ishaque further contended that irrespective of above, the recoveries of necklace, earnings, boski cloth and shawl from the appellant have not been proved even by the trial Court and basing conviction on a belated confession recorded in another case is also an insufficient piece of evidence in absence of any independent corroboration. He lastly submitted that the judgment is palpably erroneous on the account that the learned trial Court has disbelieved the evidence in respect of two acquitted the accused whereas believed the same in respect of the appellant without assigning any cogent reasons, as such the benefit of such findings must be extended in favour of the appellant. Mr. Habib Ahmed, the learned Assistant Advocate-General, conceded with the arguments of the learned counsel for the appellant and accepted that the prosecution has miserably failed to prove the case against the appellant. According to him, the said China rifle was recovered from co-accused Quaid-e -Azam and not from the appellant, as such the learned trial Court has not appreciated the evidence properly and it would be unsafe to .Support the conviction.

8. Admittedly the incident is un-witnessed one. According to the complainant P.W. Muhammad Mahmood, the owner of godown, informed him that the dead bodies of his brother Muhammad Ramzan and Abu Tahir Bengali have been noticed inside the godown. This fact was further confirmed by P.W. Muhammad Mahmood, who, in his statement in the Court, has stated that on 16-3-1992, after finishing work, he went home and on the next day he came back at 9.45 a.m., he and P. W . Sardar found both rooms of godown locked from outside and on opening the same saw the dead bodies of Muhammad Ramzan and Abu Tahir Bengali. The prosecution case entirely rests upon circumstantial evidence consisting of recoveries of China rifle, necklace, earnings, cloth, shawl, empties f and confessional statement of appellant Muhammad Iqbal. A perusal of impugned judgment transpires that the conviction against the appellant has been recorded on the evidence of recoveries of China rifle, empties, shells coupled with his confessional statement. For the proper appraisal and appreciation of the above pieces of evidence we feel it appropriate to discuss the relevant evidence adduced at trial. Complainant Ali Muhammad in his examination-in-chief deposed that appellant Muhammad Iqbal, co-accused Quaid-e-Azam and Abdul Maieed were arrested in his presence. It was Quaid-e-Azam, who led to the recovery of China rifle alongwith the magazine and rounds. He further stated that the stolen property, viz unstitched cloth was recovered from box lying in the godown where deceased were killed and the same was taken and a seizure memo was prepared in his presence and his signatures were obtained. Appellant Muhammad Iqbal also produced a golden necklace from his house which was taken into possession under mashirnama which bears his signature and according to him, police also recovered empties from his possession in his presence under mashimama. P.W. Haji Ali Muhammad in his examination-in-chief has further stated that a week ago he had seen a China rifle in possession of appellant Muhammad Iqbal while sitting in the house of deceased Muhammad Ramzan and stated that on his pointation the said rifle was recovered from co-accused Quaid-e-Azam. According to him the appellant led to the house of Mst. Wakeelan, his sister-in- law, and asked her to hand over necklace and earnings which were produced by her to the police in his presence. The appellant also produced boski cloth and shawl from Charbi godown. He also led the police to the house of deceased Ramzan where his widow Mst. Jamila produced empties and live cartridges to the police. Investigating Officer Hashim Khan on this piece of evidence stated before the trial Court that one China rifle, present in Court, was recovered from the possession of appellant Muhammad Iqbal in his presence alongwith 36 cartridges and a separate case under Arms Ordinance has been registered against him. Irrespective of the above one necklace was taken into possession from Mst. Wakeelan, sister-in-law of the appellant, at his pointation. According to the said witness, the appellant pointed out the recoveries of unstitched cloth and shawl belonging to deceased Abu Tahir Bengali. On his pointation the empties, 20 in number, were recovered from Mst. Jamila wife of deceased Muhammad Ramzan. On scrutiny of the above discussion, it is crystal clear that the said co-accused Quaid-e-Azam. complainant, being China rifle was recovered from c an important witness, has categorically stated that it was Quaid-e-Azam alone who produced China rifle from his house. This witness has not even shown the presence of appellant Muhammad Iqbal at the time of such recovery. This statement is further confirmed by P.W. Haji Ali Muhammad, who too in his statement has stated that it was only Quaedi-e-Azam, who produced the said rifle on the pointation of appellant. Investigation Officer Hashim Khan has stated quite contrary to the memo. of seizure of the said rifle. According to which it was co-accused Quaid-e-Azam who produced the rifle at the pointation of the appellant. As such his evidence, being contradictory, lacks reliance. So far as the recovery of empties at the pointation of the appellant is concerned, the P.Ws. having given a quite contradictory number of empties. The complainant has shown empties of China rifle 20 in number, whereas Mashir Haji Ali Muhammad has stated the recovery of only 0 empties of China rifle Investigating Officer Hashim Khan has said about recoveries of 36 cartridges on the pointation of the appellant. So far as the recoveries of necklace and the I cloth are concerned, the said necklace was produced by Mst. Wakeelan, sister- in-law of the appellant and the unstitched cloth and shawl were recovered from the box lying in godown, the place of incident. Admittedly, no identification parade was held in respect of these articles nor anyone from the complainant party had come forward to claim the same to be of the deceased. The absence of Mst. Wakeelan's joining in investigation makes the recoveries entirely doubtful and no reliance can be placed upon the same. Similarly Mst Jamila, who according to her saying, produced 20 empties of China rifle given to her by the appellant makes the prosecution case more doubtful merely for the reason that she being the wife of deceased accepted the same for keeping from the appellant and further that she in her statement has stated that the appellant was not on visiting terms in her house and that she also was not joined in the investigation.

9. From the above discussion we are of the considered opinion that prosecution has miserably failed to prove the evidence of recoveries of the above said articles from the appellant and the trial Court has not recorded conviction properly on these pieces of evidence. Adverting to the confession we feel the same has lost its credential value for the reasons that firstly, it was never recorded in the present case but was recorded in another case of which even crime number has not been mentioned. Secondly, the present incident took place on the night in between 16th and 17th of March, 1992, whereas the said confession has been recorded on 2-4-1992, as such is highly belated. Lastly, the original or true copy of the confession has not been filed but only photocopy has been filed which cannot be taken into consideration. It is well-settled principle of criminal justice that it is unsafe to rely upon circumstantial evidence in absence of any independent corroboration. In the present case the abovementioned pieces of evidence are not corroborated from any independent piece of evidence, as such the conviction and sentence are not sustainable in law. Another important aspect of the case to which learned trial Court has not acceded to, is that a particular motive was set up in the F.I.R. by the complainant wherein persons, namely, Abdul Sattar, Haji Salahuddin and Muhammad Alam were shown to be the accused responsible for the commission of offence. Not only this but the complainant was so confident that he gave the reasons of murder against the abovementioned persons of his brother and that of another deceased specifically in the F.I.R. It is pertinent to note that neither complainant had shown any reason of exonerating these persons from the commission of offence in his statement in Court nor the Investigating Officer has given any satisfactory explanation to that effect.

10. Above all, no cogent reason has been advanced by the trial Court while acquitting co-accused Quaid-e-Azam and Abdul Majeed and convicting appellant Muhamamd Iqbal, particularly when the evidence against them is similar and common. Thus, for the foregoing reasons appeal is allowed. The impugned judgment dated 12-5-1993 is set aside and the appellant is acquitted of the h charge. He shall be set at liberty. The above are the reasons of the short order dated 12-5-1998 N.H.Q./M-335/K Appeal allowed.