2020 PLP 342 (MLD)

MUHAMMAD WAHEED KHAN, J.

This judgment shall, disposed of Cr. Appeal No.1524 of 2014 filed by the appellants, namely, Abdul Rehman and Amir (against their conviction and sentence) and Cr. Revision No.166 of 2016 filed by the complainant Muhammad Iqbal for enhancement of sentence of accused persons. As both the matters have been arisen out of the same judgment dated 30.01.2016 passed by the learned Addl. Sessions Judge, Ahmad Pur Sial, District Jhang in case FIR No.105/2014 dated 18.04.2014 registered under sections 302/365/ 364/148/149, P.P.C. at Police Station Garh Maharaja, Jhang, whereby appellants were convicted and sentenced as under:-- Under section 302(b)/34, P.P.C. awarded Imprisonment for life each and they were also directed to pay Rs.1,50,000/- each as compensation to the legal heirs of deceased. In default of its payment, both of them were ordered to further undergo six months Simple Imprisonment. Under section 364, P.P.C. awarded ten years rigorous imprisonment and fine of Rs.30,000/- each. In default of its payment, both of them were ordered to further undergo three months Simple Imprisonment. Under section 201(sic), P.P.C. awarded seven years rigorous imprisonment and fine of Rs.20,000/- each. In default of its payment, both of them were ordered to further undergo three months Simple Imprisonment. Benefit under section 382-B, Cr.P.C. was also extended to both the convicts. Co-accused persons, namely, Kashif, Abdul Jabbar and Mst. Humaira Mai were acquitted of the charge by extending benefit of doubt by the learned trial Court.

2. Feeling aggrieved of the judgment passed by the learned trial Court, appellants have assailed their convictions and sentences by filing instant appeal. On the other hand, complainant filed revision petition for enhancement of convictions and sentences of the appellants awarded to them by the learned trial Court, which has been dismissed as withdrawn today.

3. Prosecution story as portrayed by Muhammad lqbal complainant while lodging FIR is as under:- "That on 16.04.2014 at about 08:00/09:00 p.m. he along with his son Saqlain Abbas, Muhammad Nawaz son of Inayat Khan and Manzar Abbas son of Muhammad Nawaz was sitting at his home situated at Mauza Durri Gondal Tehsil Ahmad Pur Sial District Jhang and they were talking about family matters when accused Amir, Abdul Rehman, Abdul. Jabbar and Kashif along with two unknown accused came to him and asked to send Saqlain Abbas with them as they had an urgent work at Adda Kot Bahadar; that while trusting upon the accused he sent his son with them and asked the accused to drop his son back to home; that till late in night his son did not return back to home and he worried and he tried cell phone of his son but could not contact him because the phone was off. At last, he along with Muhammad Nawaz and Manzar Abbas went to the house of accused and asked about his son who told that Saqlain Abbas departed from them at Adda Kot Bahadar in the night; that his son did not reach home; that the accused persons in connivance with each other abducted his son. The motive behind the occurrence was stated that the accused suspected his son of having illicit relations with wife of accused Amir and in the evening of 16.04.2014 at about 05:00/06:00 p.m. wife of accused Amir namely Mst. Humaira Mai made repeated calls from her mobile phone No.03411338382 at his son's mobile phone No. 03411338388; that he suspects that the accused after abducting his son might have committed his murder."

4. After registration of case, police investigated the same and submitted report under section 173, Cr.P.C. before the learned trial Court while declaring the appellants along with their co-accused as guilty. Thereafter, formal charge against the appellants along with their co-accused was framed, to which they pleaded not guilty and claimed trial.

5. Prosecution in order to prove its case produced as many as fifteen witnesses. Ocular account was furnished by the complainant Muhammad Iqbal who appeared as PW-5 and Manzar Abbas who appeared as PW-6. Medical evidence was furnished by PW-3 Dr. Ahmad Ali Jafri who conducted autopsy on the dead body of the deceased Saqlain Abbas. Investigating Officer of case Mazhar Tabassam SI appeared as PW-14. The remaining witnesses were of formal in nature and prosecution after producing certain documents closed its evidence.

6. PW-3 Dr. Ahmad Ali Jafri while conducting postmortem examination on the dead body of the deceased Saqlain Abbas observed following injuries on person of the deceased. INJURIES

1. Superficial laceration 03 cm x 02 cm on the back of right shoulder.

2. Cut wound V-shaped 04 cm x 0.5 cm x muscle deep on the back of right heal. Both hands were clinched. OPINION In his opinion, the cause of death is due to cardio pulmonary arrest caused by prolonged venous and of respiratory obstruction causing violent asphyxia due to strangulation which is ante-mortem in nature and is homicide. Probable duration between the injuries and death was within 10 to 15 minutes and between death and post mortem was within 24 to 48 hours.

7. After completion of prosecution evidence, statements of appellants were recorded under section 342, Cr.P.C., in which they denied all the allegations leveled against them by the prosecution. They neither opted to appear as witness under section 340(2), Cr.P.C., nor produced any evidence in their defence.

8. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt, which resulted into convictions and sentences of the appellants in the afore stated terms.

9. Learned counsel for the appellants in support of instant appeal submits that the impugned judgment is against law and facts as same is result of mis-reading and non-reading of evidence on part of the learned trial Court; that admittedly, this is the case of circumstantial evidence and the prosecution has failed to prove its case against the appellants beyond reasonable doubt; that there are number of discrepancies and contradictions in the statements of the PWs; that according to the version of the prosecution the accused persons were inimical towards the deceased as they were having suspicion of illicit relations with co-accused Mst. Humaira Mai (since acquitted) and there was not an occasion for the complainant to let his son to go with the accused persons; that the recovery of dead body allegedly effected on the disclosure of four accused persons has got no evidentiary value; that except these two pieces of evidence prosecution is not equipped with any other incriminating material against the appellants. Lastly, prays that by accepting the instant appeal, appellants may be acquitted of the charge.

10. On the other hand, learned District Public Prosecutor assisted by the learned counsel for the complainant strongly controverted the arguments advanced by the learned counsel for the appellants and submits that the prosecution has successfully proved its case against the appellants beyond reasonable doubt by producing cogent, reliable and trustworthy evidence; that PWs are not only consistent qua the time, place, mode and manner of occurrence but also remained in unison qua the culpability of the appellant in the alleged crime. Finally, prays that since the prosecution has proved its case up to the hilt against the appellants and they have rightly been convicted and sentenced by the learned trial Court, hence, instant appellant may be dismissed.

11. I have heard arguments and perused the record with the assistance of learned counsel for the parties.

12. After hearing the arguments of learned counsel for the parties and perusing the evidence available on record, it is observed that the occurrence as stated in FIR took place on 16.04.2014 at about 8.00/9.00 p.m. and the matter was reported to police on 18.04.2014 at 12.10 (night), in which complainant and others witnesses claimed that the accused persons, namely, Amir, Abdul Rehman (both appellants), Abdul Jabbar and Kashif (both since acquitted) along with two unknown accused came to the house of the complainant and asked to send his son Saqlain Abbas (deceased) with them, as they had an urgent piece of work at Adda Kot Bahadar and while trusting upon them, complainant sent his son with them, who never came back. This shows that right from the beginning, the complainant had knowledge that his deceased son Saqlain had gone with the accused persons but in spite of that, he reported the matter with a delay of about more than 48 hours, which creates a doubt qua the story advanced by the prosecution and it also shows that the FIR was registered after consultation and due deliberation on part of the complainant party.

13. In order to prove the case, prosecution is equipped with the following three types of evidence.

1. Evidence of last seen.

2. Evidence of recovery of dead body of the deceased on pointing out by the accused persons.

3. Evidence of recovery of different articles allegedly effected from the possession of the accused persons. To prove the last seen, complainant Muhammad Iqbal (PW-5) reiterated the story which he has already narrated while lodging the FIR that how the accused persons, namely, Amir, Abdul Rehman (both appellants), Abdul Jabbar and Kashif (both since acquitted) along with two unknown accused called his son from his house and took him along. Manzar Abbas (PW-6) also reiterated the story of last seen almost in a similar manner. An important aspect of the case is that while lodging FIR, complainant had categorically stated that the motive behind the occurrence was that the accused persons suspected of having illicit relations of deceased with co-accused Mst. Humaira Bibi (since acquitted) wife of accused Amir. So, in this backdrop, how the complainant himself allowed the deceased to go with the accused persons, this version of the complainant is irreconcilable and cannot be believed on any hypotheses. So, I hold that the story of last seen cooked up by the prosecution is nothing but after thought because same does not appeal to a of prudent mind. Even otherwise, evidence of last seen is a weakest type of evidence, unless corroborated with some independent piece of evidence it cannot be relied upon1tand same aspect is conspicuously missing in this case. Reliance in this regard is placed on the case of "Altaf Hussain v. Fakhar Hussain and another" 2008 SCMR 1103. Moreover, the august Supreme Court of Pakistan in its recent judgment titled as "Muhammad Abid v. The State and another" (PLD 2018 Supreme Court 813) has given an exhaustive view about the theory of last seen which is reproduced as under:-- "5. ...The theory of last seen together is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The circumstance of the deceased being last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.

6. The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires

1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused

2. Proximity of the crime scene.

3. Small time gap between the sighting and crime

4. No possibility of third person interference

5. Motive. 6 Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime." Adverting to the other piece of evidence, which the prosecution led before the learned trial Court, that is evidence of recovery of dead body allegedly on pointing out by the accused persons. According to the Investigating Officer (PW-14) on 18.04.2014 he arrested the accused persons, namely, Abdul Rehman, Abdul Jabbar, Kashif and Mst. Humaira Bibi and during the course of investigation, they made disclosure that they had committed the murder of deceased Saqlain Abbas after abducting him and buried the body of deceased in the house of appellant Abdul Rehman and in consequence of their disclosure, Investigating Officer got recovered it from western side of courtyard of house of appellant Abdul Rehman. Investigating Officer also prepared site plant of the place of recovery of dead body Ex-PO and also prepared inquest report and injury statement of the deceased as Ex-PD and Ex-PC and sent the dead body for postmortem examination.

14. I have also noticed another strange thing in this case that after the recovery of dead body allegedly on the disclosure of accused persons, no memo of recovery of dead body has been prepared by the Investigating Officer to supplement his stance. When this proposition was confronted to the learned Law officer and leaned counsel for the complainant, they after perusing the record conceded the same. So, non preparation of recovery memo of dead body creates serious doubt qua the veracity of prosecution assertion. There is yet another aspect of the case that although the evidence of recovery of dead body is admissible in evidence under Article 40 of the Qanun-e-Shahadat Order, 1984 but at the same time, it is observed that dead body of deceased Saqlain Abbas has been recovered on the disclosure of four accused persons jointly and the law is settled by now that joint recovery is inadmissible in evidence. Reliance in this regard is placed on the ratio decidendi determined by the august Supreme Court of Pakistan in case of "Muhammad Mushtaq v. Mustansar Hussain and others" (2016 SCMR 2123), wherein it is observed as under:-- "The alleged recovery of the deadbody was admittedly a joint recovery which is inadmissible in evidence."

15. As far as alleged recovery of Safa P.9, Shovel P.10 and Toyamar P 11 from the possession of appellant Abdul Rehman and Patka P3 from the possession of appellant Amir is concerned, since these articles were not blood stained and are of ordinary use and generally are available in every home in village, so, recovery of these articles allegedly effected from both appellants hardly advanced the case of prosecution.

16. Since co-accused persons, namely, Mst. Humaira Bibi, Abdul Jabbar and Kashif who were similarly placed in the instant case, have been acquitted by the learned trial Court by disbelieving the same set of evidence, so, relying the prosecution evidence qua the guilt of present appellants is not safe rather cannot be justified on any stretch of imagination. Since the principle of "falsus in uno falsus in omnibus" has been fully restored and is made applicable by the august Supreme Court of Pakistan in its recent judgment passed in Cr. Miscellaneous Application No.200 of 2019 in Cr. Appeal No.238-L of 2013 reported as PLD 2019 SC

527. So, present appellants also deserve the same treatment.

17. Since this is the case based on circumstantial evidence, so, prosecution was liable to prove the guilt of the accused through complete chain of circumstantial evidence, one side is touching the body of the deceased and the other end goes to the neck of the accused, leaving no scope for this Court to believe any other reasonable hypotheses other than the guilt of the accused. Under the circumstances which have been discussed above, this Court finds that there are many missing links in the chain of prosecution story and the prosecution could not successfully prove the charge against the appellants beyond shadow of reasonable doubt and benefit of which is the inherent right of an accused.

18. In sequel to above discussion, this appeal is allowed, convictions and sentences recorded against both the appellants by the learned Addl. Sessions Judge, Ahmad Pur Sial, District Jhang vide judgment dated 30.01.2016 are set aside and both of them are acquitted of the charge framed against them. They are behind the bars, therefore, ordered to be released forthwith, if not required to be detained in any other case. JK/A-68/L Appeal allowed.