P L D 2012 Peshawar 27 (PLP)

MIFTAH-UD-DIN KHAN J.

Through the present single judgment, we propose to dispose of death Criminal Appeal No. 58 of 2008 and Murder Reference No.4 of 2008 which are the out come of judgment and order dated 25-9-2008 of the learned Additional Sessions Judge Mansehra.

2. The brief facts of the case are that appellant Israfeel who is involved in case F.I.R. No.605 dated 7-8-2003 of Police Station City Mansehra was tried by the learned Additional Sessions Judge Mansehra, on the charge of murder of one Muhammad Shafi. The report regarding occurrence was made by Shamim Akhtar widow of deceased Muhammad Shafi to the effect that on 6-8-2003 her husband left house for construction works in Fauji Foundation but did not return home by night. In the coming morning she sent her minor son Shizan and minor daughter Mehwish to the house of her husband's brother in law wherefrom it was known that deceased had left the said house at 8.15 hours of the night. All the relatives along with neighbours gathered to search out missing Muhammad Shafi and during search of her husband certain traces of blood and scuffle on the earth were noted along side of the pathway in the field growing vegetable resulting into the alleged recovery of one shoe and one pencil belonging to the victim. The search was continued when people of the locality traced a freshly dug out ditch in the land of Ali Umar growing with maize crop and the dead body was having big wound on head side lacerations, contusions and several other cuts, bruises and graze wounds. Report was lodged by Shamim Akhtatr complainant wherein Ali Umar son of Ali Gohar and his sons lsrafeel and Azeem her neighbourers in the village were charged for qatl-e-amad of her husband with whom there existed criminal cases due to land dispute and the accused party has threatened her to kill the deceased by leaving her widow.

3. The case was investigated by Muhammad Yousaf, S.-I., P.W.10, during the course of which, a broken piece of handle of pickaxe was recovered from the aforesaid field. The dead body of the deceased was referred for postmortem examination after preparation of injury sheet. He prepared the site plan, recovery memo, recorded the statements of P.Ws. and after completion of investigation, submitted challan against the accused. The learned trial court framed charge against the accused but he did not plead guilty and claimed trial. After recording the prosecution evidence, statement of accused, hearing the learned counsel for prosecution and defence counsel, the learned Additional Sessions Judge Mansehra, found the appellant guilty under section 302(b)/201, P.P.C. , thus convicted and sentenced the appellant as follows:-- To Death" as tazir under section 302(b), P.P.C. subject to confirmation by the High Court The appellant was held liable to pay Rs.100,000 (One lac) compensation under section 544-A, Cr.P.C. payable to the legal heirs of deceased or default in payment of compensation, shall be recovered as areas of land revenue with in the meaning of section 544-A(2), Cr.P.C. To suffer six years imprisonment with fine of Rs.50,000 (fifty thousand) under section 201, P.P.C.. The imprisonment shall be three years' SI and remaining R.I. In case of default of the payment, he shall suffer six months' R.I. The benefit of section 382-B, Cr.P.C. was also extended to the accused appellant."

4. Aggrieved from the judgment and order of conviction dated 25-9-2008, the appellant Israfeel has filed the present Criminal appeal No.58 of 2008 while the learned Additional Sessions Judge Mansehra, submitted Murder Reference No.4 of 2008 as required under section 374, Cr.P.C. for confirmation of death sentence. As the death appeal as well as murder reference are in connection with the same judgment of learned trial court, therefore, are disposed of through the present single judgment.

5. Mr. Sajjad Afzal Khan Advocate, the learned counsel for appellant contended that the occurrence took place at night which is an unseen and unwitnessed occurrence. That report regarding the occurrence was lodged after preliminary investigation, consultation and deliberation. That the motive of offence has not been proved on record. He further submitted that recovery of pickaxe from cattle shed has wrongly been attributed as incriminating evidence against the appellant by the learned trial court. He further submitted that on similar evidence, other co-accused were acquitted by the learned trial court under section 265-K, Cr.P.C. He lastly argued that the present is case of no evidence but the learned trial court has wrongly and illegally convicted the appellant in the present case. He placed reliance on 2008 SCMR 1297, 2009 SCMR 230 and 1992 SCMR 2088. 5(sic). Mr. Javed Khan Tanoli Advocate, assisted by learned State counsel defended the judgment of learned trial court and contended that there was sufficient evidence in the shape of pointation, medical evidence, incriminating recoveries, motive, and abscondance of accused after occurrence. It was further contended that all the chains of circumstantial evidence available on record were hinting towards the guilt of the accused/appellant, therefore; the learned trial court has rightly convicted the appellant in the above mentioned case. He placed reliance on 2002 MLD 1168, PLD 2001 SC 540, 2003 MLD 595, 1968 PCr.LJ 53, 2002 SCMR 1602 and PLD 2004 SC 342.

6. The entire prosecution case is based on the report of complainant Mst. Shamim Akhtar, and her testimony, recovery of pickaxe from the cattle shed of accused appellant at his instance, in the presence of Abdul Maroof P.W.6 medical evidence, motive, and abscondence of the accused after occurrence. According to the facts and evidence available on record, the deceased disappeared from his house on 6-8-2003 morning but no report regarding the occurrence was made by complainant up to 7-8-2003 at 1030 hours, till recovery of the dead body. After recovery of dead body, report regarding the occurrence was made by Mst. Shamim Akhtar wherein no body was shown as eye-witness to the occurrence. Admittedly, no one had gone to the police station for lodging the report but the report was recorded by Muhammad Yousaf, S.-I. P.W.4 at the place of recovery of dead body from fields of maize crops of Ali Umar acquitted co accused. Neither the complainant nor prosecution furnished any explanation as to why the report was not lodged after disappearance of deceased. It is, thus obvious from the statement of Muhammad Yousaf P.W.4 and conduct of Mst. Shamim Akhtar P.W.5 that the report was lodged after preliminary investigation, recovery, consultation and deliberation between police and complainant party on the spot. In the report of complainant Shamim Akhtar allegations against all the three accused were made for committing murder of deceased in furtherance of common intention. Admittedly, the occurrence had taken place at night time and there is no eye-witness to the occurrence. The only incriminating evidence against the accused appellant is that on his pointation, the alleged weapon of offence pickaxe was recovered from the cattle shed of accused in presence of Abdul Maroof P.W.6. The pickaxe was not found stained with human blood, hence cannot be termed as weapon of offence. No one had seen the pickexe in the hand of accused appellant. Nothing on record exists that the cattle shed is exclusively owned by the appellant, therefore, this recovery from a cattle shed not proved to be owned and possessed by appellant, is of no help to the prosecution in the present case. No other incriminating circumstantial evidence is available on record to connect the appellant with commission of offence. No one had seen the deceased in the company of accused appellant from the time of disappearance till recovery of dead body. Motive by itself would not prove the charge against accused appellant. In the absence of ocular account and strong circumstantial evidence, mere abscondance cannot be considered as corroborative or supportive piece of evidence. On the basis of the same charge and motive for the offence, the other co-accused have been acquitted in the present case under section 265-K, Cr.P.C. As the prosecution has utterly failed to produce any confidence inspiring evidence to prove various interlinked chains of circumstantial evidence of such a strong character that the same cannot be explained on any other reasonable hypothesis than taking presumption of guilt against accused appellant, therefore, the learned trial Court has wrongly recorded the order of conviction in an offence carrying capital punishment. Thus, we hold that in an unseen and un-witnessed occurrence which had taken place at unknown time, based on weak and unbelievable circumstantial evidence, the learned trial court has wrongly and illegally convicted the appellant. We accept the present appeal set aside the impugned order of conviction and acquit the appellant in the present case by answering the reference in negative. The appellant be released forthwith if not required in any other case. H.B.T./267/P Appeal accepted.