2018 PLP 159 (YLRN)

QAZI MUHAMMAD AMIN AHMED, J.

Abdul Shakoor, Assistant Sub-Inspector of Police Station Sabzazar Lahore while on patrol, spotted a dead body at 7:05 a.m. on 16-12-2008 lying in Q-Block Sabzazar; it was a male seemingly of 30/32 years of age with an inverted gunshot wound on his right temple, exited on the left; the deceased was not initially named in inquest report, however, when autopsy was conducted by Dr. Noman Butt (PW-13) at 1:00 p.m. his dead body was identified as that of Allah Yar Khan by Naseer Ahmad Abbas (PW-14) and Tahir Mehmood, PW; of them the former is deceased's maternal nephew, prosecution's star witness, who subsequently furnished details of circumstances leading to deceased's homicidal death. According to autopsy report Ex. PO, solitary injury on the head was blamed as cause of immediate death, occurred during preceding 24-36 hours. Muhammad Shamim, SI (PW-19) conducted initial investigation, according to him, he received application Ex. PW, purportedly moved by Naseer Ahmad Abbas (PW-14) wherein the appellants accompanied by an unknown person have been arrayed as accused for the crime. Atta Muhammad, ASI (PW-10) arrested Faisal Shabbir appellant on 16-12-2008 while he was driving a suspect motorcar within the precincts of Gujanyal District Khoshab; he was handed over to Muhammad Shamim, SI (PW-19) on 3-1-2009, who claims to have arrested both the appellants on the same day. Pursuant to separate disclosures, the appellants led to multiple recoveries, comprising of watch (P-11), keys (P-12/1-4), cell phone (P-13), secured vide inventory and identified as those of the deceased. On 12-1-2009, Faisal Shabbir appellant got recovered a sum of Rs.450,000/-; the Investigating Officer also took into possession crime empty (P-7) and a piece of seat cover (P-6) on the said date. Manzoor Ahmad appellant, on 15-1-2009, got recovered a sum of Rs.210,000/-; it is prosecution's case that the cash was a portion of amount looted by the appellants from the deceased. On 16-1-2009, Faisal Shabbir appellant pursuant to a disclosure got recovered pistol (P-14). Upon conclusion of investigation, the appellants were sent to face trial before a learned Addl. Sessions Judge at Lahore on 9-5-2009; they contested their indictment and claimed trial, pursuant whereto, prosecution produced as many as 19 witnesses to bring home the charge against them; of them Naseer Ahmad Abbas (PW-14), Ansar Nawaz (PW-15) and Zafar Iqbal (PW-16) jointly pointed their accusing finger upon them for having committed the murder; remainder of the witnesses indirectly supported the prosecution. On forensic side, report Ex. PGG is in the negative. The appellants confronted prosecution evidence with a unanimous denial, however, the learned trial Judge unimpressed by their plea proceeded to convict them under Sections 302 (b), 392 and 411 of the Pakistan Penal Code, 1860; on the charge of homicide, Faisal Shabbir is sentenced to death whereas Manzoor Ahmad to imprisonment for life, with payment of compensation in the sum of Rs.200,000/- each or to undergo six months simple imprisonment in the event of default whereas on the remainder charges they have been sentenced to 10-years rigorous imprisonment with a fine of Rs.20,000/- each and 3-years rigorous imprisonment with a fine of Rs.10000/- each or to undergo three months and one month simple imprisonment, respectively, in the event of default, vires whereof, have been challenged through Crl. Appeals Nos. 1744 and 648 of 2012 whereas Murder Reference No. 164 of 2012 seeks confirmation of death penalty; there being a common thread, these are being decided through this single judgment.

2. Learned counsel for the appellants contend that the appellants are not named in the crime report and their subsequent induction as accused is not free from doubt inasmuch as, according to him, there is no legal nexus to constitute their complicity; that witnesses hailing from a place as distant as Chakwal hardly could have knowledge about circumstances preceding the occurrence; that negative forensic report reflects heavily on the veracity of prosecution case, a circumstance ignored by the learned trial Judge; that reliance by the learned trial Judge on various pieces of prosecution evidence, patently inadmissible under the law, is not sustainable as these ought to have been excluded from consideration; the bottom line is that the appellants are being prosecuted on the basis of a misplaced suspicion and that prosecution has not been able to prove its case and it would be extremely unsafe to maintain the conviction. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has supported the impugned judgment on the ground that through various pieces of circumstantial evidence, prosecution has succeeded to constitute a nexus between the appellants and the deceased by excluding every hypothesis of their innocence; that last massage by the deceased to the witnesses confirming his presence in appellants' company shortly before his death validly constitute evidence of last seen, which according to the learned counsel, can be safely relied upon to maintain the conviction, as the witnesses had no axe to grind against the appellant. Confirmation of death penalty has been prayed for.

3. Heard. Record perused.

4. According to Naseer Ahmad Abbas (PW-14), deceased called him during the night between 15/16-12-2008 to inform that the appellants along with an unknown person were sitting with him and that he would accompany them for a dinner; he also disclosed upon query that a sum of rupees one million was present in the safe. Zafar Iqbal (PW-16) was also present in the sitting, however, did not accompany the deceased; the witness phoned the deceased on the following day at 10:00 a.m. with no response whereafter he contacted Zafar Iqbal PW to learn that the deceased had left previous night with the accused in a Toyota Corolla car within his view and that of Ansar Nawaz (PW-15); according to this witness, he rushed to Lahore to find Rs.one million missing in the safe, in the meanwhile, he received information about the dead body lying in Police Station Sabzazar, identified by him in the mortuary as that of the deceased. Both Ansar Nawaz (PW-15) as well as Zafar Iqbal (PW-16) joined Naseer Ahmad Abbas (PW-14) in his rendition as well as shared belief that no other than the appellants were responsible for the crime. Evidence of these witnesses warrants careful scrutiny; taken at his words, the deceased was alive during the night between 15/16-12-2008 when he last conversed with Naseer Ahmad Abbas (PW-14); assuming that he left for dinner with the appellants early in the evening, it could not be possibly before 8:00 p.m; this does not coincide with the interregnum suggested by the Medical Officer between death and postmortem as 24-36 hours, as autopsy was conducted on 16-12-2009 at 1:00 p.m. while the dead body was first seen at 7:05 a.m. Similarly, stomach contents comprising of 50-cc paste like food material do not point on a recent intake; thus, statements of the witnesses are not in line with the findings recorded by the Medical Officer. Circumstances do not purge. Even otherwise, the narrative furnished by the witnesses, though in unison, is far from being plausible. In a usual conversation, there was no occasion for the deceased to share details of cash with the witness, that too, in the presence of the appellants as well as an unknown person; inspection of safe by Naseer Ahmad Abbas (PW-14) to find the amount missing in preference to his concern to locate the deceased is really intriguing; deceased's departure for dinner leaving Zafar Iqbal (PW-16) behind, seemingly does not make any sense. Reliance by the learned trial Judge on a confessional statement, attributed to the appellants, merits outright rejection, as they were taken into custody by Atta Muhammad, ASI (PW -10) way back on 16-12-2008 and as such alleged disclosure is hit by Article 40 of the Qanun-e-Shahadat Order, 1984. Recoveries of article being non-specific and pistol (P-14) with a negative forensic report do not advance prosecution case. Argument that the appellants are being hounded on the basis of a misplaced and misconceived suspicion cannot be dismissed out of hand; various pieces referred to above, relied by the prosecution do not constitute nexus required to sustain conviction in a case based upon circumstantial evidence where prosecution must demonstrate that every hypothesis of innocence stood excluded to justify a guilty verdict; the entire edifice is structured upon suspicions; suspicions are after all suspicions that cannot replace evidentiary proof to justify conviction on a capital charge. It would be grievously unsafe to maintain conviction, therefore, by extending benefit of doubt to the appellants, Crl. Appeals Nos. 1744 of 2012 and 648 of 2012 are allowed; they are acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.164 of 2012 is answered in the NEGATIVE and death sentence is NOT CONFIRMED. JK/F-24/L Appeal allowed.