2019 P Cr (PLP)

TARIQ SALEEM SHEIKH, J.

Through this appeal the Appellant, Muhammad Anwar, has assailed judgment dated 23.11.2006 passed by the learned Additional Sessions Judge, Sahiwal, in case FIR No. 569/2004 dated 12.11.2004 registered at Police Station Harappa, District Sahiwal, for offences under sections 302/109/148/149, P.P.C. whereby he was convicted and sentenced for the murder of his wife Nasreen Bibi and another woman named Rasoolan Bibi.

2. Brief facts of the case are that on 12.11.2004 Bashir Ahmad (PW-8) made a statement before Nisar Ahmad/SI (PW-15) to the effect that he was a resident of Chak No. 4/10-L and an agriculturist by profession. On the same day, i.e. 12.11.2004, at about 8:00 a.m. when he went to his fields he found dead bodies of two unknown women lying in the drain. A five-month-old baby girl was by their side who was crying. One of the deceased was aged 41/42 years while the other was young and appeared to be around 21/22 years old. The Complainant raised alarm which inter alia attracted PW-7 Noor Ahmad and PW Mureed Hussain son of Ghulam Muhammad (given up) to the spot. They got announcements made from the mosques in their village and the surrounding areas to call people to the aforesaid place for the identification of the deceased but nobody could identify them. At 9:05 a.m. Nisar Ahmad/SI (PW-15) recorded the statement of Complainant Bashir Ahmad (Exh. PG/1) and despatched it to the police station through Muhammad Abbas 1114/C on the basis of which FIR No.569/2004 (Exh.PG) was registered at 9:45 a.m.

3. The investigation of this case was also entrusted to Nisar Ahmad/SI (PW-15). He reached the crime scene, took the dead bodies in his custody and despatched them for autopsy under the escort of Muhammad Aslam 688/C (PW-5). Then he prepared rough site plan of that place Exh. PS and recorded the statements of the witnesses under section 161, Cr.P.C. During spot inspection he collected blood-stained earth from the points where the corpses were lying and secured them vide Recovery Memos Exh.PJ and Exh.PK. He found there six empties P-3/1-6, lead of a cell phone P-4 and baby's feeder P-5 which he took into possession vide Recovery Memos Exh.PM and Exh.PN. On the same day he entrusted the infant to Munir Ahmad (PW-9) against acknowledgement Exh.PP. After the postmortem examination was done Muhammad Aslam 688/C (PW-5) produced before him stitched dead bodies of both the deceased and their last worn clothes. Nisar Ahmad/SI (PW-15) secured the said clothes through Recovery Memo Exh.PQ and handed over the corpses to Muhammad Iqbal, Sanitary Supervisor, Municipal Committee, Sahiwal, against receipt Exh.PR for their last rites. He also had the announcements made through loudspeakers in the nearby villages calling upon the people if they could identify the deceased. However, despite his best efforts they could not be identified and were eventually buried. On 10.1.2005, Muhammad Mansha (PW-11), Muhammad Siddique (PW-12) and Abdul Ghaffar (PW-13) appeared before Nisar Ahmad/SI who showed them the photographs of the dead bodies from which they identified them as Nasreen Bibi and Rasoolan Bibi. He recorded their statements under section 161, Cr.P.C. On the same day Muhammad Ijaz (PW-10) joined the investigation and got his statement recorded in which he nominated Appellant Muhammad Anwar, Muhammad Sarwar (since acquitted), Mst. Rashidan Bibi wife of Sharif, Abdul Aziz son of Bagh Ali and Salamat Ali son of Nawab Din along with four unknown persons for the murders. Muhammad Ijaz (PW-10) also alleged that all was done on the instigation of Murad Ali son of Khushi Muhammad and Allah Ditta son of Burra. On 15.11.2004, Nisar Ahmad/SI got prepared scaled site plan from Draftsman Saeed Akhtar (PW-6). On 15.3.2005, he arrested Abdul Aziz and Salamat Ali. The Appellant and Muhammad Sarwar approached the learned Additional Sessions Judge, Sahiwal, for pre-arrest bail. He arrested them after their bail applications were dismissed on 30.5.2005. Mst. Rashidan Bibi could not be apprehended and was declared a proclaimed offender. On 11.6.2005, during the course of investigation Nisar Ahmad/SI allegedly recovered pistol .30-bore P-1 and two live bullets P-2/1-2 at the instance of the Appellant which he took into possession vide Recovery Memo Exh.PF. Kamran Yousaf (PW-16), who was then posted as SP, Investigation, also investigated this case for a short period. The police found that the Appellant and Muhammad Sarwar were involved in the occurrence while four other accused, namely, Abdul Aziz, Salamat Ali, Murad Ali and Allah Ditta were innocent. Report under section 173, Cr.P.C. was submitted accordingly. The learned Additional Sessions Judge indicted the Appellant and Muhammad Sarwar on 29.12.2005. Both of them denied the charge and claimed trial.

4. In order to prove its case the prosecution examined 16 witnesses. Noor Ahmad (PW-7) and Complainant Bashir Ahmad (PW-8) testified about the recovery of two dead bodies of females from the latter's field. Munir Ahmad (PW-9) deposed that Nisar Ahmad/SI (PW-15) gave the baby girl found alongside them in his care. Muhammad Ijaz (PW-10) and Abdul Ghaffar (PW-13) deposed that the Appellant had a motive to kill Nasreen Bibi and Rasoolan Bibi. Muhammad Siddique (PW-12) overheard a conversation between the Appellant and his co-accused in which he confessed his guilt. Haji Munir Ahmad (PW-14) furnished the evidence of the last seen. Muhammad Mansha (PW-11) testified about the extra-judicial confession of the Appellant and Azmat Ali 1075/C (PW-2) proved recovery of pistol P-1 and live bullets P-2/1-2 from him. Medical evidence was provided by Dr. Afshan Akram (PW-1). The Investigating Officers, Nisar Ahmad/SI (PW-15) and Kamran Yousaf, Deputy Director Intelligence Bureau (PW-16), gave the details of their investigation and the evidence they collected in this case. The remaining witnesses were formal in nature. The prosecution also adduced reports of the Chemical Examiner (Exh.PS and Exh.PS/1), the Serologist (Exh.PT and Exh.PT/1) and the Forensic Science Laboratory (Exh.PV).

5. After the prosecution was through with its evidence the learned trial court recorded the statements of the Appellant and co-accused Muhammad Sarwar under section 342, Cr.P.C. Both of them denied the allegations and professed innocence. They maintained that it was a case of no evidence. The occurrence took place in the dark hours of the night. There was neither any direct nor circumstantial evidence to connect them with it. None of them opted to get their statements recorded on oath under section 340(2), Cr.P.C. or examine any witness in their defence.

6. On the conclusion of the trial, vide judgment dated 23.11.2006, the learned Additional Sessions Judge acquitted Muhammad Sarwar but convicted the Appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life on two counts. He also ordered him to pay compensation of Rs.50,000/- to the legal heirs of each deceased under section 544-A, Cr.P.C. In the event of non-payment of compensation, the Appellant would undergo simple imprisonment for a further period of six months on each count. The sentences of imprisonment were to run concurrently and benefit of section 382-B, Cr.P.C. was extended to him. Through this appeal the Appellant has assailed his conviction and sentence before this Court.

7. In support of this appeal Prince Rehan Iftikhar Sheikh, Advocate, contended that it was a case of no evidence. The learned trial Court had not appraised the prosecution evidence properly which had caused grave miscarriage of justice. He argued that, firstly, the Appellant had no motive to murder Nasreen Bibi and Rasoolan Bibi. The motive alleged by the prosecution was false and even that was not proved. Secondly, the last seen evidence furnished by Haji Munir Ahmad (PW-14) was untrustworthy and the prosecution had concocted it to strengthen its case. Thirdly, the Appellant had no reason to make any extra-judicial confession before Muhammad Mansha (PW-11) and the one attributed to him was false. Even otherwise, it had no legal value as it was stated to have been jointly made by him and co-accused Muhammad Sarwar (since acquitted). Fourthly, the testimony of eavesdropper Muhammad Siddique (PW-12) also lacks credibility. He was a chance witness and failed to justify his presence outside the house of Abdul Aziz at the relevant time. Fifthly, pistol P-1 and live bullets P-2/1-2 were not recovered from the Appellant and the police had foisted them on him. Sixthly, the medical evidence was of no avail to the prosecution as it was only confirmatory and could not be used to identify the culprits. Lastly, the learned trial Court had acquitted co-accused Muhammad Sarwar on the same evidence against which the prosecution had not filed any appeal. Since the Appellant's case had no distinguishing feature the trial Court erred in convicting him. The learned counsel prayed that this appeal be accepted and the Appellant be acquitted of the charge.

8. On the other hand, the learned Deputy Prosecutor General assisted by Mr. Shahzad Saleem Khan Balouch, Advocate, controverted the above contentions and supported the impugned judgment. He contended that the Appellant was involved in anti-social activities and viewed Nasreen Bibi and Rasoolan Bibi deceased as hurdle so he killed them to get them off his way. He maintained that the prosecution had proved its case against him through credible circumstantial evidence. The PWs had no enmity or ill-will against him. As such, there was no reason for them to falsely implicate him in this case. He prayed that this appeal be dismissed and the appellant's conviction be upheld.

9. I have heard the learned counsel for the parties and examined the record with their able assistance.

10. Admittedly, it was an unwitnessed occurrence. On 12.11.2004 at about 8:00 a.m. Bashir Ahmad (PW-8) discovered dead bodies of two unknown women in a drain within the territorial limits of Police Station Harrapa, District Sahiwal, with a five-month-old baby girl around them. He raised alarm at the ghastly sight which attracted Noor Ahmad (PW-7) and other villagers to the spot. They got announcements made from the mosques in their village and the surrounding areas to call people for their identification but nobody could identify them. Bashir Ahmad (PW-8) informed the police whereupon Nisar Ahmad/SI (PW-15) came to the spot. He recorded his statement Exh.PG/1 and despatched the dead bodies to the mortuary for autopsy. On the same day he entrusted the infant to Munir Ahmad (PW-9) against acknowledgement Exh.PP. Inasmuch as the deceased could not be identified, after their postmortem he handed over their corpses to Muhammad Iqbal, Sanitary Supervisor, Municipal Committee, Sahiwal, for their last rites and burial which he did. It was about two months later, i.e. on 10.1.2005, Muhammad Mansha (PW-11), Muhammad Siddique (PW-12), Abdul Ghaffar (PW-13) and PWs Muhammad Umar, Muhammad Amin, Muhammad Yasin, Sardar Ali and Sooba (not produced) appeared before the Investigating Officer, Nisar Ahmad/SI (PW-15) and from the photographs that he had retained identified the dead bodies as of Nasreen Bibi and Rasoolan Bibi. On the same day Muhammad Ijaz (PW-10) joined the investigation and got his statement recorded in which he nominated Appellant Muhammad Anwar and six others for the murders. Perusal of the record reveals that the prosecution neither produced the photographer nor got exhibited the aforesaid photographs in evidence. More importantly, in their depositions Muhammad Mansha (PW-11), Muhammad Siddique (PW-12) and Abdul Ghaffar (PW-13) did not state that they had identified the deceased women. In this view of the matter, in my opinion, the prosecution has failed to conclusively establish their identity.

11. The prosecution relies on the motive, the last seen evidence, extra-judicial confession, the medical evidence and recovery of pistol .30-bore P-1 and two live bullets P-2/1-2 to bring home guilt to the Appellant.

12. The prosecution produced Muhammad Ijaz (PW-10) and Abdul Ghaffar (PW-13) to prove the motive. They alleged that the Appellant and Rasoolan Bibi were members of an organized group which was engaged in human trafficking. Nasreen Bibi learnt about it. When the Appellant discovered that he gave her beating and turned her out of his house. Nasreen Bibi went to her brother, Muhammad Ijaz. The Appellant followed her on the pretext of reconciliation and after giving false explanations to his in-laws brought her back and killed Nasreen Bibi and Rasoolan Bibi both. Perusal of the record shows that Muhammad Ijaz (PW-10) and Abdul Ghaffar (PW-13) did not have any personal knowledge that the Appellant was involved in illicit human trade. Their testimony is essentially based on the statement of Nasreen Bibi which is not supported by any direct or indirect evidence. Even during the course of investigation the police did not make any effort to verify it. In his cross-examination Nisar Ahmad/SI (PW-15) admitted: "I have not visited the place where Mst. Nasreen Bibi had resided and also did not inquire about the information which was narrated by Nasreen Bibi deceased to Ijaz from anywhere About the motive of occurrence as alleged by Ijaz he did not produce any evidence in this respect except his verbal statement." The baby girl found near the dead bodies of the deceased women would not advance the prosecution case because her identity was also not established. It is not known whether she was the daughter of Rasoolan Bibi or anybody else. For all these reasons I hold that the motive has not been proved.

13. Haji Munir Ahmad (PW-14) furnished evidence of the last seen. He deposed that about 1-1/2 years prior to the day when his testimony was recorded he along with PW Muhammad Afzal (not produced) was sitting at a diesel sale point in village 183/9L when a Toyota van came there for refueling. The driver purchased diesel for Rs.300/- and gave the salesman a currency note of Rs.1000/-. The latter went to the office to fetch the change. In the meantime, two persons alighted from the van out of whom one was bearded while the other was fat. PWs Haji Munir Ahmad and Muhammad Afzal heard one of the women in the van weeping. They went near it and saw 6/7 passengers in it who told them that they were going to a funeral. The next morning there was an announcement from the mosque that two women were found murdered near the drain close to the village. He further stated that he and Muhammad Afzal went to the spot and observed one of the deceased was the same woman they had seen weeping in the van on the preceding night. About 3/4 months later the two of them went to Police Station Harrapa where they found those men whom they had seen in the van which included the Appellant. The testimony of Haji Munir Ahmad (PW-14) smacks of concoction and is liable to be rejected for more than one reason. First, he has not mentioned the precise date and time when he came across the Appellant. Secondly, he is a chance witness and has failed to explain his presence at the diesel sale point at the relevant time. Thirdly, the Appellant was previously not known to Haji Munir Ahmad. He identified him about 3/4 months after his first sight. It is improbable if not impossible to recognize a previously unknown person after such a long time when one had had only his fleeting glimpse. Lastly, he did not join the investigation and during cross-examination contradicted himself in material particulars. It is well-settled that testimony of a witness whose statement has not been recorded during the investigation is not credible. Reliance is placed on Dilshad v. The State (1995 PCr.LJ 248), Akbar v. The State (1996 MLD 1311) and Muhammad Idrees v. The State (2011 PCr.LJ 552). The following excerpt is of vital significance: "It is correct that when I heard the announcement from the loudspeaker in the village about the murder of two ladies I did not join the investigation and tell the story of the alleged seeing of the ladies along with the accused to the police. It is correct that I did not identify the dead bodies of the two women nor I pointed out to the police about the same ladies."

14. The above-mentioned portion of the deposition was confirmed by Nisar Ahmad/SI when he said: "No one appeared before me and made any statement in this respect that he had seen the women along with others prior to the occurrence night. If anyone made statement, I would have incorporated the same in the case diary. Till from the very beginning of the occurrence at the time of burial of the dead-bodies no one had identified the dead bodies or made statements before me. It is correct that till 10.01.2005 no evidence in any respect against the accused was on record [when the deceased women were allegedly identified and Muhammad Ijaz (PW-10) implicated the Appellant and his co-accused in this case]."

15. According to the prosecution, the Appellant made extra-judicial confession before Muhammad Mansha (PW-11), who was a cousin of PW Muhammad Ijaz. The said witness categorically admitted that the Appellant and his co-accused, including, Muhammad Sarwar (since acquitted), Salamat Ali and Abdul Aziz, jointly made the alleged confession. Criminal jurisprudence has by now well settled that a joint extra-judicial confession is inadmissible. Reliance is placed on The State v. Kamal Khan alias Maloo and another (1993 SCMR 1378) and Abdul Razzaq v. The State (2009 YLR 756).

16. Muhammad Siddique (PW-12) testified that he along with PW Sarfraz (not produced) overheard a conversation between the Appellant and his co-accused in which he admitted his guilt. According to him, he heard it while passing through the street outside the house of Abdul Aziz. The said witness lacks credibility. He was a chance witness and failed to justify his presence there at the relevant time. Secondly, it does not appeal to a prudent mind that a person would talk so loudly about his crime that the people may hear him in the street. Thirdly, he unequivocally admitted that he did not see the Appellant's face and recognized him by voice. Courts have always held such identification doubtful. In Ahmed Sher and another v. The State (PLD 1995 FSC 20), the Federal Shariat Court held as under: "Identification by voice (i.e. where the witnesses had not seen the face of the accused because the accused had muffled his face or on account of darkness but had heard the voice of the accused) has been considered to be a weak piece of evidence. Malik Rab Nawaz Noon, learned counsel for the Appellants, has relied upon three reported judgments which support his contention that identification by voice through an identification test is a weak piece of evidence and should be supported by other evidence. In the case of Hamzo v. State 1972 PCr.LJ 478, a Division Bench of erstwhile High Court of Sindh and Balochistan had held that the evidence of the witness who had claimed identification of the accused by voice, in an occurrence taking place when the night was cloudy and the moon-light was dim, was a very weak piece of evidence and required support by other strong circumstantial evidence and that conviction could not be based on identification by voice only. In the case of Abdul Rashid v. State (1973 PCr.LJ Lah. 428) a Division Bench of the Lahore High Court considered the evidence of a witness relating to identification of the accused, who had heard them for a very short period when the incident had taken place on the basis of voices as incredible in view of the admission of the witness that she had not seen the accused since her childhood and, therefore, she could not be so familiar with their voices as to be able to recognize either of them. A Single Judge of the Sindh High Court also considered identification by voice as doubtful in the case of Misri v. State reported in 1984 PCr.LJ 2832." A learned Division Bench of this Court held the same view in the case reported as Ayyub v. The State (1994 PCr.LJ 1057).

17. Dr. Afshan Akram (PW-1) provided medical evidence in the instant case. On 12.11.2004, she conducted autopsy on two unknown women at the DHQ Hospital, Sahiwal, whose dead bodies were brought by Muhammad Aslam 688/C (PW-5). One of them was aged about 35 years while the other was 45 years old. She noted four 1 cm x 1 cm x deep firearm injuries (with corresponding exit wounds) on the first woman and two similar injuries (with corresponding exit wounds) on the other. The prosecution heavily relies on her evidence to seek corroboration of its case. I am afraid, it is of no avail to it because in the instant case the identity of the culprit(s) could not be established. It is trite that medical evidence can only furnish details of the injuries sustained by a person, living or dead, and the kind of weapons used in the occurrence but it cannot identify the culprits. Reliance is placed on Akbar Ali v. The State (2007 SCMR 486), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803), Muhammad Aslam v. Sabir Hussain and others (2009 SCMR 985) and Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410).

18. The prosecution alleged that pistol .30-bore P-1 (along with two live bullets P-2/1-2) was recovered from the Appellant which he used for the commission of offence. Again, this evidence does not buttress its case. To start with, the alleged recovery was made in violation of section 103, Cr.P.C. Secondly, the report of the Forensic Science Laboratory Exh.PV only certified that the aforesaid pistol was in working condition. It did not say whether the crime empties P-3/1-6) wedded with it or not. Lastly, the Appellant was not confronted with report Exh.PV when his statement under section 342, Cr.P.C. was recorded. It is trite that examination of an accused under section 342, Cr.P.C. is not a mere formality but a legal requirement whose primary purpose is to apprise him of all the incriminating material that has been brought against him during the trial and provide him an opportunity to explain his position with respect to it. If any piece of evidence is not put to him, the same cannot be used against him. In Muhammad Shah v. The State (2010 SCMR 1009), the Hon'ble Supreme Court of Pakistan held: "It is well settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained." The above view was reiterated in Qaddan and others v. The State (2017 SCMR 148), Muhammad Saddique v. The State (2018 SCMR 71) and Imtiaz alias Taj v. The State and others (2018 SCMR 344).

19. In a case based on circumstantial evidence the prosecution is obligated to show that different pieces of evidence brought on the record are inter-linked so as to make a single chain whose one end touches the dead person and the other clenches the neck of the accused. Further, the evidence must be of a quality to be incompatible with the innocence of the accused. Any missing link in the chain would destroy the entire prosecution case. In Hashim Qasim and another v. The State (2017 SCMR 986) the apex Court ruled: "In cases of circumstantial evidence, there are chances of procuring and fabricating evidence. Therefore, Courts are required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the Investigators . circumstantial evidence may sometimes appear to be conclusive but it must always be narrowly examined, if only because this count of evidence may be fabricated in order to cast suspicion on another. Therefore, it is all the more necessary before drawing inference, if the accused's guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances, which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all."

20. In the instant case, there is hardly any evidence to connect the Appellant with the commission of offence. It is also noteworthy that while extending benefit of doubt the learned trial Court has acquitted co-accused Muhammad Sarwar on the same evidence. The prosecution has not filed any appeal against his acquittal. Since the Appellant's case is not distinguishable from him, his conviction is also liable to be set aside.

21. For what has been discussed above, this appeal is allowed. The impugned judgment is set aside and the Appellant is acquitted of the charge. He is in jail. He shall be released forthwith if not required to be detained in any other case. JK/M-193/L Appeal allowed.