2010 PLP 584 (SCMR)

RAHMAT HUSSAIN JAFFERI, J.

On 10-10-1998 at 12-50 p.m. the complainant Muhammad Sharif lodged a Report at Police Station Sarai Alamgir about the missing of his brother Shabbir Hussain and Mst. Kausar (second wife of Shabbir Hussain). He stated that on 3-10-1998 his nephew Farid Ahmed son of Shabbir Hussain from his first wife came and informed him that he, his father Shabbir Hussain and step mother Mst. Kausar were sleeping in the house situated near Khanda Mor. When in the morning he woke up he did not find his parents. The complainant started searching for his brother and Mst. Kausar but could not find any clue; therefore, .he lodged the report which was recorded in Station Diary at Sr.No.7.

2. On 4-10-1998, P.W. Muhammad Iqbal found a dead body of an unknown male person in the area of Police Station Gujjar Khan, District Rawalpindi. He reported the matter to the police and an F.I.R. was accordingly registered at the said Police Station. On the same date at 3-30 p.m. one Abdul Karim, a resident within the jurisdiction of Police Station Kotli, District Kotli, Azad Jammu and Kashmir also found a dead body of an unknown lady from the jungle and reported it to the police. After postmortem examination of dead body the Medical Officer could not find any evidence of unnatural death, therefore, no report was lodged.

3. The complainant could not get any clue of his brother and sister-in-law (Bhabi) till 7-11-1998. However, on that date Farid Hussain (P.W.2) again came to the complainant and informed him that due to fear he did not tell him the actual facts about the missing of his parents. He further informed him that on 3-10-1998 at about 10-00 p.m. he woke up on a door bell ring, his father responded the call and he saw the appellant along with his co-accused standing there. The appellant made deceased smell something due to which he became unconscious and thereafter he was put in a vehicle. His mother also went down stairs in order to know what had happened; she was also made to smell something due to which she also went unconscious and was put in the vehicle, thereafter the appellant, who is his Mamoon (maternal uncle), along with seven other armed persons decamped. The complainant again went to the Police Station and lodged such report where after the police started investigation.

4. On 3-12-1998 the police of Police Station Airport, Rawalpindi arrested the appellant who disclosed to the police that he had abducted Shabbir Hussain and his wife Mst. Kausar (inadmissible evidence), Upon such disclosure, he was handed over to Police Station Sarai Alaingir where he was interrogated. He led the police and pointed out a place in the area of Khalla Butt, Police Station Gujjar Khan disclosing that he had thrown the dead body of Shabbir Hussain (inadmissible evidence). He also pointed out the place in the area of Police Station Kotli, AJ&K disclosing that he threw the dead body of Mst. Kausar (inadmissible evidence). During investigation, it was found that one of the co-accused of the appellant was killed in a police encounter which occurred on 20-11-1998 in the area of Police Station Chak Sawari, District Mirpur, AJ&K. The dead bodies of the above unknown male and female were exhumed and were identified as Shabbir Hussain and Mst. Kausar by the P.Ws.2 and 3.

5. After completing investigation the appellant was challaned in the Court of law. The learned Additional Sessions Judge, Kharian tried the appellant. The prosecution examined 18 witnesses out of them material witness was P.W.2. The learned Judge after considering the evidence produced before him found the appellant guilty of the offence punishable under section 364, P.P.C. for abducting Shabbir Hussain and Mst. Kausar and sentenced him to suffer imprisonment for life. He was also convicted for an offence punishable under section 302(b), P.P.C. for committing Qatl-e-amd of Shabbir Hussain and sentenced him to life imprisonment. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C., vide judgment dated 31-10-2002. On appeal, the learned High Court maintained the conviction and sentence for the offence punishable under section 364, P.P.C. but acquitted the appellant from the charge of offence punishable under section 302(b), P.P.C. The learned High Court did not grant the benefit of section 382-B Cr.P.C. to the appellant but directed him to pay a fine of Rs.50,000 or in default thereof to suffer SI for six months. The appellant was dissatisfied with the said judgment, therefore, he has preferred Jail Petition bearing No.327 of 2006 before this Court in which leave has been granted to re-appraise the evidence, vide order dated 25-7-2007.

6. No body appeared for the appellant but with the assistance of learned Deputy Prosecutor General we have gone through the record and proceedings of the case.

7. The case hinges upon the evidence of P.W.2 only as there is no other evidence against the appellant though the prosecution led evidence of P.Ws.10 and 17 by which they tried to show that on 5-1-1999 the appellant pointed out a place within the jurisdiction of Police Station Kotli, District Kotli, Azad Jammu and Kashmir and on 6-1-1999 he pointed out another place within the jurisdiction of Police Station Gujjar Khan, District Rawalpindi. P.W. 17 Muhammad Afzal Virk, Inspector, stated that the appellant disclosed that he had committed the murders of Shabbir Hussain and Met. Kausar and would show the places of incident. The statement about the confession of the appellant concerning the murders of abductees is inadmissible under Article 38 of Qanun-e-Shahadat Order, 1984. Therefore, it has to be excluded from consideration, which is accordingly done. However, nothing was recovered from any of the places shown by the appellant. Further the said places were already known to the people and police of respective police stations. The prosecution also did not lead any evidence showing that the dead bodies were recovered from the places which were pointed by the appellant therefore the said piece of evidence is also of no help to the prosecution as it does not come within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984; hence it cannot be used against the appellant.

8. P.W.2 gave the same details of the incident as he disclosed to his uncle Muhammad Sharif, the complainant, which facts are already mentioned in the earlier part of the judgment. It is to be noted that at the initial stage, P.W.2 did not disclose the said facts to any body and remained quiet. On the contrary he disclosed to the complainant that both the deceased were missing from the house. For one month he remained quiet in spite of the fact that every body was searching for both the deceased. The explanation furnished by the P.W.2 that he did not disclose the actual facts to anybody due to the fear of the appellant is not appealing to the common sense for the simple reason that his parents were abducted within his sight allegedly by the appellant and his companions, who were allegedly armed with deadly weapons. According to him, the appellant was his maternal uncle, the fear, if any, could have been removed within few days. No explanation has been furnished by P.W.2 as to how his fear was removed after one month of the incident.

9. The story narrated by P.W.2 that after the abduction he went to sleep in the house also does not seem to be true because in such a situation he could not have gone to sleep when his parents were abducted. His natural and immediate conduct would have been to go to his uncle or to his mother who was first wife of deceased to inform her about the incident. Thus there is inordinate delay of silence of P.W.2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC 223, Sahib Gul v. Ziarat Gul 1976 SCMR 236 and Muhammad Iqbal v. State 1984 SCMR 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCMR

550. Therefore, the evidence of P.W.2 is coming within the scope of above rules laid down by this Court. Hence, his statement cannot be safely relied upon in the peculiar facts and circumstances of the present case.

10. After excluding the evidence of P.W.2 there is no other evidence connecting the appellant with the commission of crime, therefore, the impugned judgment cannot be sustained. The conviction and sentence awarded to the appellant for the offence punishable under section 364, P.P.C. are set aside. The appellant is acquitted and set at liberty. He is in custody and shall be released forthwith if not required in any other custody case. Resultantly, the appeal is allowed. N.H.Q./R-14/SC Appeal accepted.