2022 PLP 192 (YLRN)

MUHAMMAD AMJAD RAFIQ, J.

Facing the allegation of committing Qatl-i-Amd of Naveed Akhtar, son of the complainant, appellants Sakhawat Ali and Mst. Nasreen Bibi were prosecuted in case FIR No.77 dated 26.06.2013 in respect of offences under sections 302 and 34, P.P.C. registered at Police Station Ahmadabad, District Narowal and were finally convicted and sentenced by the learned trial court vide judgment dated 22.10.2015 as under:- > Imprisonment for life each under section 302(b)/34, P.P.C. with compensation of Rs.1,00,000/- each under section 544-A, Cr.P.C., in default thereof, to further undergo six months' simple imprisonment each. > Rigorous imprisonment for seven years each under section 201/34, P.P.C. with fine of Rs.20,000/- each and in default whereof, to further undergo simple imprisonment for two months each. Benefit of section 382-B, Cr.P.C. was extended to them and their sentences were ordered to run concurrently.

2. Against the above said judgment, complainant Abdul Ghafoor has, preferred Criminal Revision No.1151 of 2015 seeking enhancement of sentence of respondents Nos.2 and 3 therein, which is being decided through this common judgment.

3. It was stance of complainant that on 14.06.2013 at 04:00 p.m. his son Naveed Akhtar went missing, he started search when Adnan Mehmood and Muhammad Ashraf told him that his son was seen in the company of Sakhawat Ali (appellant) while entering in his rented house. The complainant approached the said house but it was locked. However, on 26.06.2013 at 04:00 p.m. he was informed by his brother Manzoor Ahmed that Sakhawat Ali and his wife Mst. Nasreen Bibi (appellants) are missing since the above incident but he felt some foul smell coming from their house; upon which the complainant along with witnesses Muhammad Aslam, Muhammad Asghar broke out the lock of outer door of the house and entered into the house; after digging the earth from the courtyard of said house found dead body of Naveed Akhtar with a cut throat injury by way of a sharp edged weapon. The complainant was under the strong belief that his son was murdered by Sakhawat Ali, Mst. Nasreen Bibi (appellants), Abdul Razzaq, Sajjad, Bhola and by two unknown accused persons. Motive behind the occurrence was that Naveed Akhtar had purchased a house situated in Muhallah Muhammadpura from Sakhawat Ali accused about two years back and accused wanted to take back the said house from him and due to that grudge, they committed murder of Naveed Akhtar.

4. On receiving information about the occurrence, Muhammad Riaz S.I./I.O. (PW-10) reached at the place where the dead body was lying, took into possession the dead body, he also took into possession earth from the place where dead body was buried, drafted application for postmortem examination, injury statement, inquest report and dispatched the dead body to the mortuary through Zulfiqar Ali 55/C and Adnan Ali 519/C along with witnesses of identification. He inspected the place of occurrence/ recovery of dead body and prepared rough site plan. After postmortem examination he took into possession last worn clothes of the deceased. Thereafter the investigation was entrusted to Muhammad Amin S.I./I.O. (PW-9) who on 06.07.2013 arrested both the appellants. During investigation, on 12.07.2013, appellant Sakhawat Ali led to the recovery of "Churri" (P-4) from the same house, appellant also produced mobile phone (P3) which were taken into possession vide respective recovery memos. After finding both the appellants guilty, they were challaned, put to trial and charge sheeted where they pleaded not guilty and claimed to be tried. Prosecution produced as many as eleven witnesses but mainly relied upon complainant Abdul Ghafoor (PW-4), Manzoor Ahmed (PW-5), Muhammad Aslam (PW-7), Muhammad Ashraf (PW-8), Muhammad Amin S.I/I.O. (PW-9), Muhammad Riaz, S.I./I.O. (PW-10) and Dr. Jamil Ahmad Tahir (PW-11). After conclusion of prosecution evidence, statements of both the accused/appellants were recorded under section 342, Cr.P.C. wherein they have controverted all the allegations levelled against them and claimed their innocence; however, in response to a particular question that why this case is registered against you and why the PWs have deposed against you? appellant Sakhawat Ali has replied as under:-- "I have been falsely implicated this case to save the real culprits. The actual facts of the case have been suppressed by complainant and his PWs. The deceased had illicit relations with the wife of Manzoor Ahmad (PW-5), for that reason Manzoor Ahmad (PW-5) left his village. Naveed Akhtar (deceased) has been murdered in that pretext. PWs are related to the complainant. I am innocent." Whereas in reply to same question, appellant Mst. Nasreen Bibi has replied as under:- "I have been falsely implicated in this case to save real culprits. The actual facts of the case have been suppressed by complainant and his PWs. The deceased had illicit relations with the wife of Manzoor Ahmed (PW-5), for that reason Manzoor Ahmad (PW-5) left his village. Naveed Akhtar (deceased) has been murdered in that pretext. I being wife of Sakhawat Ali co-accused have falsely been implicated in this case. PW's are related to the complainant. I am innocent." After conclusion of trial, co-accused Abdul Razzaq, Muhammad Sajjad and Pervez alias Bholla were acquitted whereas, the accused/appellants were convicted and sentenced as forecited.

5. Heard. Record perused.

6. Naveed Akhtar, deceased went missing but complainant did not try to make efforts for his search despite the fact one witness Muhammad Ashraf has told the complainant that he had seen the deceased entering into the house of appellants. They did not enter into the house of the appellants on the pretext that it was locked. Site plan shows that in front of house of appellants a house was under construction and probably the mason and the labourer are supposed to be available, yet no activity has observed by them and even Manzoor Ahmed witness who informed on 26.06.2013 that he observed foul smell coming from inside the house of appellants is not supported by any other witness at or around the place of occurrence. The learned counsel for the appellants contends that Manzoor Ahmed was uncle of deceased Naveed Akhtar who had suspicion of his illicit relation with her wife; therefore, there is every likelihood that he was the man who had committed murder of Naveed Akhtar. Be that as it may, the evidence brought on record by prosecution about the recovery of dead body of Naveed Akhtar which was the result of information provided by Manzoor Ahmed shows that witnesses themselves entered the house and reached right at the targeted place where the dead body was buried and surprisingly they succeeded to disinter the dead body of Naveed Akhtar. This private recovery of dead body is of no help for the prosecution. Investigating officer while appearing in the dock stated that place was pointed out by the witnesses where the dead body was buried and he picked up the earth from there. Learned counsel for the complainant tried to impress the Court that the dead body was recovered in the presence of police which fact is belied in the circumstances. Had it been the situation the police has produced the witness who had excavated the earth and also took into possession the implements used for such purpose but no such articles or the witness is available in this case. No direct reply was brought on record through the mouth of investigating officer that he has ever participated in the proceedings for recovery of dead body. When the recovery of dead body was not effected in the presence of independent witness it cannot be said with certainty that it was the recovery from that very house. If it is believed that the dead body was found from the house as alleged by the prosecution even then duty cast upon the prosecution to establish that house was in the possession of appellants. In this regard no rent deed was produced on the record to show that the appellants were residing in that house as tenants, even the statement of owner of the house has not been recorded nor any neighbourer was produced to confirm the factum that appellants were residing in that house. Show of prosecution fails through which they set the stage against the appellants on the criminal charge of murder of the deceased. All facts deposed through the statements of Abdul Ghafoor, complainant (PW-4) and Manzoor Ahmed (PW-5) do not help to explain any evidence that could point even a finger against the appellants as the real culprits.

7. Medical evidence in this case was brought through the statement of PW-11 Dr. Jameel Ahmed Tahir who observed that dead body was at the putrefied stage, however, there was a deep wound on neck; the trachea, esophagus and major vessels were cut down. He observed duration between death and postmortem as one to three weeks. This tentative assessment stands not in conformity with the ocular version particularly when doctor states that putrefaction starts after four to five days. Process of putrefaction produces foul smell, gasses, had the dead body been buried there, since the date of missing, smell whereof, could have been attracted earlier, the people of locality or the labourer working in front in the constructed house. Medical evidence is only of conformity in nature and it does not point to a particular accused for commission of murder when there is no eye-witness of commission of murder or burial of the dead body by the appellants, medical evidence cannot catch their neck with the criminal charge.

8. The other evidence which the prosecution procured in support of charge is the recovery of churri on the lead of Sakhawat Ali appellant, but surprisingly, from the same house on 12.07.2013 when such house has already been examined not by the witnesses at the time of recovery of dead body but inspected by the police as well and it is not expected that police had not searched out the whole house, availability of Churri at the site is not believable and that too in between the beddings placed on a cot. Further surprising fact that such Churri was blood stained. Though Punjab Forensic Science Agency report observed human blood on said Churri but prosecution has not tendered original report and no evidence is available that how duplicate report was brought on record without first requesting the Court to bring on record secondary evidence in this regard, so recovery in this case is inconsequential. Moreover, such recovery, was effected after about one month of the occurrence and duplicate report of Punjab Forensic Science Agency report showing presence of human blood on the weapon is of no avail for the prosecution in the light of dicta laid down by Hon'ble Supreme Court of Pakistan in case law reported as "Faisal Mehmood v. The State" (2016 SCMR 2138) wherein it has been held that human blood would have disintegrated in a period of about three weeks.

9. In this case on the same set of evidence already three accused persons namely Abdul Razzaq, Muhammad Sajjad and Pervaiz alias Bhola, stood acquitted, therefore, appellants cannot be convicted under the principle of falsus in uno falsus in omnibus. Reliance is placed on judgment passed in "Notice to Police Constable Khizar Hayat son of Hadiat Ullah" in the matter of "Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013 vide order dated 04.03.2019" (PLD 2019 SC 527).

10. As a whole the prosecution has no case, learned trial court was not justified to convict the accused/appellants on such scanty evidence. It is trite that an accused can be convicted on the basis of circumstantial evidence but golden principle as set out by Hon'ble Supreme Court of Pakistan is that one end of chain should be connected to the place of occurrence or the dead body and other to the neck of accused and there should not be any break in the chain of circumstance, any missing link or chain break gives a big favour to the accused in the form of benefit of doubt which is also available in this case. Reliance is placed on judgment reported as "Imran alias Dully and another v. The State and others" (2015 SCMR 155).

11. In view of the above, I have no option except to allow the instant appeal, resultantly, the same is ALLOWED, the conviction and sentence of the appellants is set aside and they are acquitted of the charge by giving them benefit of doubt. Appellants are in custody, they are directed to be released forthwith if not involved in any other criminal case. The case property, if any, be disposed of in accordance with law and the record of the learned trial court be sent back immediately. Crl. Revision No.1151 of 2015

17. For the reasons recorded above, the criminal revision in hand is without any merit, the same stand dismissed in limine. SA/S-29/L Appeal allowed.