1999 PLP 955 (SCMR)

SH. IJAZ NISAR. J.

Ali Khan, Etssa Khan, Jumma Khan, Muhammad Ismail, Muhammad Khan and Muhammad Yaqub were tried for the murder of Muhammad Akbar deceased. By judgment, dated 26-2-1995 the learned Sessions Judge, Sibi, convicted Ali Khan, the appellant herein, and Eissa Khan under sections 302(b), P.P.C. and sentenced them to imprisonment for life and to pay a tine of Rs.25,000 each or in default to suffer R.I. for six months. Ali Khan appellant was also convicted under section 404, P.P.C. and sentenced to undergo 2 years' R.i. and to pay a fine of Rs.1,000, or in default to undergo three months' R.I. Jumma Khan, Muhammad Ismail. Muhammad Khan and Muhammad Yaqub were, however, acquitted.

2. Challenging their convictions and sentences Ali Khan and Eissa Khan filed Criminal Appeal No.38/1995. The State also filed Criminal Appeal No.79 of 1995 against the acquittal of Jumma Khan. Muhammad Ismail, Muhammad Khan, and Muhammad Yaqub, while Criminal Revision No.46 of 1995 was filed for the enhancement of the sentences of Ali Khan appellant and Eissa Khan. All the matters were disposed of together by the High Court vide judgment dated I I-10-1995. The appeal of Eissa Khan was allowed and he was acquitted of the charge, while the appeal of Ali Khan was dismissed and accepting the revision petition, his sentence was enhanced from life imprisonment to death. The acquittal of Jumma Khan, Muhammad Ismail, Muhammad Khan and Muhammad Yaqub was, however, maintained. Ali Khan appellant has appealed to this Court in addition to filing Criminal Petition No. 168-Q of 1995, seeking the same relief.

3. The prosecution case is that on 23-8-1993 Abdul Sattar complainant, P. W .2, was informed that his cousin Muhammad Akbar deceased had been murdered and that his dead body was lying in Otak of Momin (father of Ali Khan appellant) in Gharibabad Sibi, whereupon the complainant went to the said Otak and found the dead body of Muhammad Akbar deceased lying there. He then proceeded to the police station and lodged report Exh. P.C. The police- party headed by Noor Muhammad, S.H.O. P.W.14, reached the Otak and saw the dead body lying in a room with ice placed by its sides. He removed the dead body to the hospital and secured from the spot a blood-stained piece of mat and number plate of a motorcyele. During investigation it was found that Ali Khan appellant had snatched Yamaha motoreyele of the deceased after firing a gunshot at him and later with the assistance of his co-accused, brought the dead body to his house (Otak) for its disposal. He had also removed the wrist-watch and purse of the deceased. He is alleged to have led to the recovery of shotgun which was licencesed in the name of his father and an empty cartridge from a garden, The motor-cycle of the deceased was also recovered from his possession alongwth a challan receipt, which he allegedly had attempted to dispose of but Muhammad Hussain P.W.4 declined to purchase It, in the absence of the relevant documents.

4. At the instance of Eissa Khan a box was recovered which allegedly was to be used for the disposal of the dead body. Both the accused are also alleged to have made a judicial confession. The crime empty recovered at the behest of Ali Khan appellant wan found to have matched with gun P.10 as per the Ballistic Expert Report

5. The prosecution examined 14 witnesses in all td prove its case, 'Chey testified to the recoveries mentioned above at the behest of Ali Khan and Eissa Khan and the attempt on the part of Ali Khan to dispose of the motocycle of the deceased, as also recovery of the dead body from the Otak of Momin, father of Ali Khan appellant.

6. The learned trial Court disbelieved the prosecution evidence to the extent of Jumma Khan, Muhammad Ismail, Muhammad Khan and Muhammad Yaqub but accepted it against Ali Khan appellant and Eissa Khan and sentenced them as described above. On appeal, Eissa Khan was acquitted, while the conviction of Ali Khan was maintained, but accepting the State appeal his sentence was enhanced from life imprisonment to death.

7. It is urged on behalf of the appellant that there is no direct evidence in the case and the prosecution evidence rests on the circumstantial evidence, which failed to connect him with the offence of murder of Muhammad Akbar deceased mere recovery of the articles belonging to the deceased would not prove the offence of murder against the appellant, it is maintained. The Magistrate, who is said to have recorded the judicial confession of Ali Khan, was not examined.

8. It is well-settled that in a case resting on the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. Following the above principle, we have to see whether the offence of murder at the instance of Ali Khan stands established. As already stated, there is no direct evidence in the case and the accused is sought to be linked with the crime only by the recovery of articles of the deceased. The dead body of the deceased though alleged to be recovered from the Otak of Momin, father of Ali Khan, was not at the pointation of the appellant, nor was he alleged e to be present in that house at the relevant time. Neither any evidence was led by the prosecution to show the place of occurrence, nor was the appellant alleged to have been seen near any such place. The matching of the crime empty with the gun, allegedly recovered at the instance of the appellant, is not sufficient ground by itself to prove the commission of murder by the appellant. Both the recoveries were effected on the same day and the possibility of the crime empty having been made to match with the gun cannot be ruled out. There is no evidence of the deceased having been last seen in the company of the appellant, For these reasons the offence of murder does not stand established against him However, the recoveries of articles of the deceased like his motorcycle, wrist watch, and purse, stand fully proved through the unimpeachable evidence adduced by the prosecution. The appellant has not been able to shatter the evidence examined by the prosecution in this behalf. He was, therefore, rightly convicted under section 404, P.P.C.

9. In the result, the appeal is accepted to the extent of appellant's conviction under section 302(b), P.P.C. and the impugned judgment of the High Court is set aside and Ali Khan appellant is acquitted of the charge under section 302(b), P.P.C. while his conviction and sentence under section 404, P.P.C. is maintained and the appeal is dismissed. He shall be released on serving out the sentence, if not required in any other case. On account of the disposal of main appeal (Criminal Appeal No.483 of 1995), Mr. Muhammad Aslam Chishti, learned Advocate Supreme Court, does not press Criminal Petition 168 of 1995, which is dismissed, being not pressed. He also does not press Criminal Petition No.169 of 1995, which too is dismissed. N.H.Q./A-145/S Order accordingly.