2015 PLP 553 (MLD)

MUHAMMAD TARIQ ABBASI, J.

This appeal is directed against the judgment dated 12-5-2010, passed by the learned Addl. Sessions Judge, Chakwal, whereby in the case FIR No.203 dated 30-8-2007, registered under Sections 302/34, P.P.C. at Police Station, Kallar Kahar, District Chakwal, towards murder of Muhammad Ilyas, the appellants have been convicted under section 302(b), of P.P.C. and sentenced to the imprisonment for life. A fine of Rs.one lac has also been imposed against Ameen Khan (appellant No.1), whereas of Rs.3 lac against Ameer Khan (the appellant No.2), in default to further undergo S.I. for three months and six months respectively. It was directed that the amount of fine if realized 50% be paid to the legal heirs of the deceased as compensation. The benefit of section 382-B of Cr.P.C. was also extended to the appellants.

2. The facts are that Ayaz Khan (P.W.12) had made a statement (Exh.PG) before the police contending therein that about few days ago, Ameen Khan (appellant No.1) had brought his nephew Muhammad Ilyas (deceased), in the area of Kallar Kahar for work in the coal mines; that a rumor was got spread, by Ameen Khan (appellant No.1) that Ilyas deceased had disappeared; that he (complainant) tried to contact Ameer Khan (appellant No.2) but failed, whereupon he (complainant) along with Haji Bostan Khan and Sajjad Khan, Muhammad Riaz and Zargul came at village 'Warala' on 29-8-2007; that they contacted Ameer Khan (appellant No.2) through telephone, who told them that the dead-body of Muhammad Ilays was lying in a watercourse (Kas) of Sangrala Hill, in the area of Warala; that due to shortage of time, the complainant party could not reach at the spot; that on 30-8-2007, the complainant along with above named, reached at the spot and found dead-body of Muhammad Ilyas lying there which was putrefied and bad-smell was coming from it; that the nephew of the complainant was murdered by the appellants through torture due to unknown reasons.

3. On the basis of the above said complaint, FIR (Exh.PG/1) was chalked out. The case was investigated and finally the appellants were challaned to the court.

4. The learned Trial Court had framed the charge against the appellants on 14-4-2009, they pleaded not guilty and claimed the trial, hence as many as 14 witnesses were examined.

5. After examination of the above-said witnesses, and closure of the prosecution case, the appellants were examined as required under section 342 of Cr.P.C. They denied almost all the questions, put to them, emerging from the prosecution evidence and pleaded their innocence and false implication in the case with mala fides. They did not opt to lead any evidence in their defence or make statements under section 340(2) of Cr.P.C.

6. After completing the above mentioned proceedings, the learned trial court had pronounced the impugned judgment, whereby convicted and sentenced the appellants in the above mentioned terms.

7. Consequently, the instant appeal has been preferred with the contention and the grounds that there was no direct evidence against the appellants and that the prosecution had failed to prove its case and charge against the appellants, but the learned Trial Court had erred in not considering the attending facts and circumstances and convicting the appellants through the impugned judgment, which is not acceptable under the law.

8. The learned ADPP assisted by learned counsel for the complainant has vehemently opposed the appeal and supported the impugned judgment, being quite well reasoned and demand of the situation.

9. Arguments of both the sides have been heard and the record has been perused.

10. Admittedly, in this case, there is no direct evidence. The prosecution case rests upon the circumstantial evidence. The criteria in such like situation is that each and every circumstance should be united in such a manner that a continuous chain should be made, one end of which should touch the dead-body, whereas the other end should be around the neck of the accused. But if chain link is missing then its benefit must go to the accused. In this regard, reliance can respectfully be placed upon the judgments reported as Ch. Barkat Ali v. Major Karam Elahi Zia and another (1992 SCMR 1047), Sarfraz Khan v. The State and 2 others (1996 SCMR 188) and Asadullah and another v. State and another 1999 SCMR 1034. In the case reported as Ch. Barkat Ali v. Major Karam Elahi Zia and another (1992 SCMR 1047), the august Supreme Court of Pakistan at page 1055 observed as under:-- "Law relating to circumstantial evidence is that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See "Siraj v. The Crown" PLD 1956 FC

123. The prosecution evidence in this case was of the deceased last seen with the accused and from the latter was recovered a handle of the hatchet blood stained and he was absent from the forest after the murder. The learned Federal Court held that the evidence was not sufficient and the accused was acquitted. In the case of "Karamat Hussain v. The State" 1972 SCMR 15 it was laid down that "In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypotheses other than the guilt of the accused." Further reliance in this context is placed upon the judgment reported as Altaf Hussain v. Fakhar Hussian and another (2008 SCMR 1103), wherein at page 1105 it was held by the Hon'ble Supreme Court as under:-- "Needless to emphasise that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain."

11. While keeping in mind the above mentioned criteria, it would be seen and evaluated, whether the prosecution has proved, its case satisfactorily or otherwise.

12. As per the Doctor (P.W.1), two lacerated wounds, one at right side of neck on the lower jaw, whereas the other on back of the right chest were observed at the dead-body, which was at the advance stage of putrefaction with maggots. According to the doctor, the above-said injuries which were ante-mortem in nature, had caused death to the deceased and that probable time which elapsed between the death and post-mortem examination was 3 to 10 days. This witness during cross-examination had admitted that the injuries were not caused by firearm weapon and that the possibility of injuries by means of pointed stone cannot be ruled out.

13. Ayaz Khan, complainant (P.W.12) as stated above, had not seen the alleged occurrence, but when he was allegedly told on 29-8-2007 that the dead body of Muhammad Ilyas was lying in a watercourse, he did not make any struggle on the said date to reach to the dead-body and remained satisfied and thereafter on the following day he attended the spot. In the complaint Exh.PG, this witness had not narrated any motive and contended that the cause of the occurrence was unknown but when he entered in the witness box, he had narrated a motive which can rightly be treated as an afterthought improvement, which is not only discarded but the same fact has also made serious doubt into his credibility. Reliance is placed upon Muhammad Wasif Khan and others v. The State and others (2011 PCr.LJ 470), Farman Ahmed v. Muhammad Inayat and others (2007 SCMR 1825) and Muhammad Ashraf and another v. The State (2011 YLR 767).

14. Inayat Ullah Khan (P.W.6), had deposed that Muhammad Ameen, (appellant No.1) had told before him that Muhammad Ameer (appellant No.2) had done Muhammad Ilyas to death by firing. Firstly, as stated above, during the evidence of the doctor, it has been confirmed on the record that the death of Muhammad Ilyas, did not occur due to firing and secondly the abovementioned version of the above named appellant being exculpatory in nature could not be given any weight under the law. Therefore, the statement of the P.W.6, has not given any benefit to the prosecution.

15. Muhammad Ameen, (P.W.7), during his statement has contended that on 24-8-2007, at about 7 a.m., he along with Inayat Ullah, Najeeb, Muhammad Ameen (appellant No.1) and Muhammad Ilyas (deceased) had reached at Adda Malot, from where the deceased and the appellant No.1 went to mine No.15, whereas he and remaining persons to Warrala by bus. This witness had further contended that he did not join into the police investigation however, the police had recorded his statement under section 161 of Cr.P.C. During cross-examination of this witness, it had come on the record that whichever he had stated during examination-in-chief was contradictory to his- version, narrated during statement under section 161 of Cr.P.C. Therefore, in the light of the judgment reported as Qazi alias Dost Muhammad and another v. The State (2014 PCr.LJ 611) the above mentioned conduct of the above-named P.W. has cast serious doubt into his veracity and credibility.

16. It has been brought on the record that the blood-stained clothes, which during the alleged occurrence were being worn by Muhammad Ameen (appellant No.1) were recovered and taken into possession, but nothing is available on the record to suggest that the said blood was of the deceased. Therefore, the said recovery had not given any benefit to the prosecution.

17. Ayaz Khan complainant (P.W.12) had also narrated about confession/admission, allegedly made by Ameer Khan (appellant No.2) in his presence before the police. Certainly, the said alleged statement being made by an accused before the police is not admissible/acceptable under the law. Reliance in this regard is respectfully placed upon the judgment reported as The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum, (2001 SCMR 14) and Salim Javed Durrani v. State through Dy. Attorney General, N.-W.F.P., Peshawar and 4 others 2005 PCr.LJ 22 (DB).

18. All the above mentioned facts, circumstances and reasons clearly indicate that the prosecution had badly failed to establish its case as per the criteria mentioned above. In this way, the charge against the appellant was not proved beyond any doubt, but the learned Trial Court had erred in not considering the same and convicting the appellants through the impugned judgment.

19. Resultantly, the appeal in hand is accepted, the impugned judgment is set aside and both the appellants namely Ameen Khan and Ameer Khan are acquitted of the charge while extending them the benefit of doubt. Both the appellants by way of suspension of their sentence are on bail hence their bail-bonds are discharged. HBT/A-166/L Appeal accepte