2017 PLP 176 (YLRN)

TARIQ SALEEM SHEIKH, J.

By this consolidated judgment we propose to decide Crl. Appeal No.212 of 2015 and Murder Reference No.87 of 2011 arising from case FIR No.01/2006 dated 7-9-2006 registered at Police Station BMP Post Lakhani for offences under sections 302/395/148/149/34, P.P.C.

2. Briefly, facts of the case as set out in complaint Ex.PA (and FIR No.01/2006 Ex.PA/1 which was registered pursuant thereto) are that on 7-9-2006 at about 10.00 a.m. the Complainant, Ghulam Murtaza, along with Zahoor Ahmad, Abdul Ghafoor, Abdul Shakoor and Muhammad Jan, were grazing their cattle in the area of Tall Lazdan. All of a sudden Said Muhammad (the Appellant) along with co-accused Allah Dad (P.O), Qadir, Ghulam Rasool (P.O) and Ghulam Akbar, who were all armed with Kalashnikovs, came there and raised a Lalkara that Abdul Shakoor and Abdul Ghafoor had not returned the loan and had instead extended threats to them. Therefore, they had come to teach them a lesson. The accused persons caught hold of the camel of Abdul Ghafoor with a view to take it away. Abdul Shakoor offered resistance whereupon Appellant Said Muhammad fired at him with his Kalashnikov and he fell down. When Abdul Ghafoor saw this, he stepped forward whereupon Allah Dad shot at him and he also fell down. The Appellant and his co-accused then took away the camel of Abdul Ghafoor and fled towards the north of NWFP firing in the air. Abdul Shakoor and Abdul Ghafoor both succumbed to their injuries at the spot. The Complainant alleged that the motive of the occurrence was that Abdul Shakoor and Abdul Ghafoor deceased had a money dispute with the accused party and a few days before the occurrence they also had a quarrel with them. The Complainant alleged that the Appellant and his co-accused had killed the deceased in revenge.

3. Initially, PW-1 Muhammad Akhtar Khan Dafedar investigated this case. He was, however, transferred where-after various other officers investigated it. Appellant Said Muhammad, Allah Dad and Ghulam Rasool absconded. During their investigation the police found that the Appellant and Allah Dad were guilty of the aforementioned crime while Ghulam Rasool, Ghulam Qadir and Ghulam Rasool were innocent. Therefore, they initiated proceedings under Section 87 Cr.P.C. against the Appellant and Allah Dad and they were declared proclaimed offenders. The Appellant was later arrested on 12-10-2009. The Investigation Officer submitted his report under section 173, Cr.P.C. The learned Additional Sessions Judge, Taunsa Sharif, summoned the Appellant and all his co-accused for trial. Since Ghulam Rasool was still absconding, after due process the Court, vide order dated 28-5-2010, declared him a proclaimed offender as well.

4. On 9-6-2010, the learned Additional Sessions Judge, Taunsa Sharif, indicted the Appellant, Ghulam Akbar and Ghulam Qadir for offences under sections 302/395/34, P.P.C. All of them pleaded not guilty and claimed trial.

5. The prosecution produced 12 witnesses to prove its case which inter alia included the Complainant, the eye-witnesses, the medical officer, and the police officers who investigated the case from time to time. The learned Assistant District Public Prosecutor gave up PWs Sajjad Ahmad and Muhammad Jam being unnecessary and Liaquat Ali Sawar because of his death and, vide statement dated 10-6-2011, closed the prosecution evidence.

6. After the completion of the prosecution evidence, the learned Additional Sessions Judge recorded the statements of the Appellant and the other accused facing the trial under section 342, Cr.P.C. All of them refuted the evidence recorded during the trial and pleaded innocence. Talking specifically about the Appellant, when he was asked as to why the case in hand was registered against him, he stated that those were blind murders. The deceased traded in camels and for that purpose they used to go to the NWFP and were murdered there by some unknown persons. He stated that he did not have anything to do with those killings and that the Complainant had implicated him in this case owing to enmity and political rivalry. Neither the Appellant nor his co-accused recorded their statements under section 340(2), Cr.P.C. in disproof of the charge levelled against them. They also did not opt to produce evidence in their defence.

7. After the conclusion of the trial the learned Additional Sessions Judge held the Appellant guilty of the Qatl-i-Amd of Abdul Shakoor and Abdul Ghafoor with common intention of co-accused Allah Dad (P.O). Accordingly, he convicted him under section 302(b), P.P.C. on two counts and sentenced him to death on two counts with payment of Rs.100,000/- as compensation in terms of section 544-A, Cr.P.C. to the legal heirs of each of the two deceased. In case of non-payment, it was ordered, the Appellant shall undergo simple imprisonment for a further period of six months on each count. The learned Additional Sessions Judge acquitted the other two accused facing the trial, namely, Ghulam Akbar and Ghulam Qadir giving them benefit of doubt. He, however, held that the offence under section 395, P.P.C. was not proved. Therefore, he acquitted him of the said charge. The Appellant has filed Crl. Appeal No. 212/2015 against his conviction and sentence. On the other hand, the learned Additional Sessions Judge has also sent Murder Reference No.87/2011 to this Court under section 374, Cr.P.C for confirmation of the death sentence of the Appellant.

8. The learned counsel for the Appellant argued that the Appellant was innocent and had been falsely implicated in the instant case. He contended, firstly, that the occurrence did not take place where it was alleged. Secondly, these were blind murders. PW-5 Ghulam Murtaza (who was also the Complainant of this case) and PW-6 Zahoor Ahmad were not present at the place of occurrence at the relevant time and were not the eye-witnesses. Thirdly, PW-5 and PW-6 were interested witnesses and the prosecution had not produced any independent witness to prove that it was the Appellant who killed the deceased. Fourthly, there were material contradictions in the prosecution evidence which made it untrustworthy. Fifthly, the prosecution had not placed on record report of the Chemical Examiner and the Forensic Science Laboratory. As such, there was no corroboration of the ocular account which itself did not inspire confidence. Sixthly, the weapon of offence was not recovered from the Appellant which could connect him with the murders. And lastly, motive for the offence was not proved and it remained shrouded in mystery. According to the learned counsel, the conviction recorded by the learned trial Court was illegal and could not be sustained.

9. On the other hand, the learned Deputy Prosecutor General (the DPG) assisted by the learned counsel for the Complainant supported the impugned judgment and argued that the prosecution had successfully proved its case against the Appellant beyond reasonable doubt. He contended that there was no material contradiction in the depositions of the prosecution witnesses. According to him, they were reliable and inspired confidence. He also contended that the ocular account was fully corroborated by medical evidence. Finally, he argued that the police had also found the Appellant guilty during their investigation and the fact that he absconded after the occurrence was a proof of his guilt.

10. We have heard the learned counsel for the parties and have perused the record.

11. At the very outset, we have noted that the FIR Ex.PA/1 was registered about 12-1/2 hours after the occurrence took place. The DPG argued that the place of occurrence was situated at a distance of 38 kilometres from the police station and it was a hilly terrain where the means of transport were scarce. Therefore, in the peculiar circumstances of the case, there was no delay in lodging the FIR for which any adverse inference could be drawn against the prosecution. This explanation appears plausible at first sight but becomes doubtful when considered in juxtaposition with other facts as we shall see in the sequel.

12. We start our discussion with the place of occurrence and the contention of the Appellant that those were blind murders and PW-5 Ghulam Murtaza and PW-6 Zahoor Ahmad were not the eye-witnesses thereof.

13. According to the prosecution, the PWs and the two deceased, Abdul Shakoor and Abdul Ghafoor, were grazing their cattle at Tall Lazdan within the territorial limits of BMP Post Lakhani when the Appellant and his co-accused assaulted them. This area borders the Province of NWFP (now Khyber Pakhtoon Khawa). After committing the crime the Appellant and his co-accused fled to the north of NWFP, taking the camel of Abdul Ghafoor deceased with them. On the other hand, the Appellant's case was that the deceased persons had camels for business and they used to go to NWFP for trade and were murdered there by some unknown persons. In his examination-in-chief the Investigation Officer, PW-1 Muhammad Akhtar Dafedar, deposed that on 7-9-2006 when PW-5 Complainant Ghulam Murtaza reported the occurrence to him, he started for the spot with him but they were still on their way when they learnt that the legal heirs of the deceased had already removed the dead bodies to the house of the Complainant in Muslim-Abad near Vahova which was 30/35 miles away. Therefore, PW-1 Akhtar Dafedar and PW-5 Ghulam Murtaza diverted to the house of the latter where they reached around 11:00 p.m. Then, on the following day, i.e. 8-9-2006, he prepared the Injury Statement of Abdul Shakoor deceased Ex.PB and that of Abdul Ghafoor deceased Ex. PC and sent the dead bodies to the THQ Hospital Taunsa Sharif for autopsy. Then in his cross-examination he admitted that during his investigation he learnt that these dead bodies were taken on camels. PW-1 Akhtar Dafedar further deposed that it was on 8-9-2006 that he visited the place of occurrence which PW-5 Ghulam Murtaza and the other PWs pointed out to him. The testimony of PW-1 Akhtar Dafedar was very striking and an excerpt therefrom is reproduced hereunder in extenso:-- "On 08-09-2006 when I visited the place of occurrence, I was on dala along with Complainant and witnesses. I inspected the same. I found no mark of blood-stained earth on the place of occurrence. No signs of scuffle or presence of PWs, deceased and accused were present at the place of occurrence. There were also the foot prints of camels were not visible. There was also no grazing field near the place of occurrence. No empties of Kalashnikovs or any other weapon was recovered from the place of occurrence. After visiting the place of occurrence, I feel that complainant did not indicate the actual situation of the occurrence. What I have seen/observed at the spot, I write in my case diary No. 2 dated 8-9-2006. When I visited the place of occurrence, near-about 11-persons were present there. Peoples of the locality gathered there when they saw me. Peoples of the locality told me that the alleged occurrence was not occurred there but in fact, occurrence was occurred in Tribal area of NWFP at the distance of 10/15 kilometers away from there... When I came to know that the alleged occurrence was not occurred at the place where it was stated by the PWs, I asked the complainant to accompany with me to visit the actual place of occurrence, but complainant asked that he is busy and he is going to appear before the court of law at D.G.Khan and refused to accompany with me ".

14. PW-1 Akhtar Dafedar was transferred on 16-9-2006 and after that the investigation of the case was entrusted to Dafedar Lakhani (not examined) and then to various other officers from time to time. The prosecution produced PW-9 Azhar Hussain Tippu, Circle Incharge Lakhani, who deposed that Dafedar Lakhani recorded the statements of the eye-witnesses for the first time on 27-9-2006. He visited the place of occurrence with the PWs on 12-11-2006. He too did not find sign of any scuffle or blood-stained earth there. Non-availability of blood-stained earth at the site is of particular significance in the peculiar circumstances of this case because PW-5 Ghulam Murtaza specifically admitted in his cross-examination that blood oozed out from the bodies of the deceased and fell on the ground. PWs Ghulam Murtaza and Zahoor Ahmad tried to explain that blood and other evidence was washed away by rain and hill torrents. However, no evidence was adduced to show that it rained on any of the relevant days.

15. According to the FIR Ex.PA/1, the Appellant and his co-accused indulged in heavy firing at the place of occurrence with their Kalashnikovs. However, not a single bullet empty was recovered from the site, a fact which PW-5 Ghulam Murtaza candidly admitted during his cross-examination. Absence of crime empties at the spot, non-availability of blood-stained earth and admitted removal of dead bodies from the crime scene combined with the revelations of PW-1 Akhtar Dafedar and PW-9 Azhar Hussain create serious doubts about the prosecution's claim that the murders actually took place where it alleged. These misgivings are further reinforced by the delay in lodging the FIR which, as we have already seen, was registered 12-1/2 hours after the occurrence.

16. Since we have already questioned the prosecution's version regarding the place of occurrence, for obvious reasons, its claim that the PWs had witnessed the crime too cannot be accepted. PW-5 Ghulam Murtaza reinforced doubts about their presence when he deposed that the clothes of the PWs were smeared with blood of the deceased persons and they changed them before going to the police and did not produce the same before the Investigation Officer at any point of time. Without prejudice to other ramifications that it has, this statement was also significant because the house of the PWs was 30/35 miles away.

17. There is another lacuna in the prosecution story that needs our comment. PW-5 and PW-6 maintained that the Appellant tried to take away Abdul Shakoor's camel and when he resisted he shot him dead. This camel was never recovered.

18. The learned counsel for the Complainant vehemently argued that the medical evidence fully supported the prosecution case and the Appellant's conviction could be upheld on the basis thereof. We are afraid, we cannot agree with this submission. Since we have already held that ocular account does not inspire confidence and have disbelieved the eye-witnesses, medical evidence is of no avail to the prosecution. It is a settled law that medical evidence is only corroborative and it cannot be a substitute for ocular evidence. It can only furnish details of the injuries sustained by a person living or dead and the kind of weapon used in the occurrence but it does not identify the culprits. Reliance is placed on Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410), 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), Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), Akbar Ali v. The State (2007 SCMR 486) and Machia and 2 others s. The State (PLD 1976 SC 695).

19. Now we advert to the alleged recovery of crime weapon from the Appellant. PW-8 Iftikhar Ahmad Zad Dafedar testified that on 12-10-2009 on the disclosure and pointation of the Appellant he recovered 3 x 3 rifle P.6 along with five live cartridges P.7 to P.11 from his house during investigation which he secured through Recovery Memo Exh. PG attested by the PWs. This recovery had absolutely no bearing on the case because, according to the prosecution version, the Appellant had used a Kalashnikov to kill deceased Abdul Shakoor. The recovered rifle had no nexus with the crime.

20. Next comes the motive. The prosecution alleged that Abdul Shakoor and Abdul Ghafoor deceased had a money dispute with the accused party and a few days prior to the day of occurrence they also had an altercation with them. The Appellant and his co-accused killed them in revenge. At the very outset, it is pointed out that the alleged motive contradicted the Lalkara attributed to the Appellant in which, PW-5 and PW-6 claimed, the Appellant and his co-accused said that Abdul Shakoor and Abdul Ghafoor should be taught a lesson for not returning the loan. Be that as it may, the prosecution did not lead any evidence to prove that any money dispute existed between the parties or because of it any altercation ever took place. In the circumstances, the motive of the occurrence remained shrouded in mystery.

21. The final contention of the prosecution was that the Appellant absconded after the occurrence and he was arrested after about three years and that his co-accused Allah Dad was still at large. It was argued that this fact alone was sufficient to prove his guilt. This argument again is fallacious. It is a settled proposition of law that abscondence by itself is never sufficient to prove the guilt of the absconder. In Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), the august Supreme Court of Pakistan explained: "

13. Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. "

22. After a thorough re-appraisal of evidence, we conclude that the prosecution has failed to prove its case against the Appellant beyond reasonable doubt. Therefore, we allow Crl. Appeal No.212 of 2015 and acquit the Appellant of the charge. He shall forthwith be released from the jail if he is not wanted in any other case.

23. As a sequel, death sentence awarded to the Appellant, Said Muhammad is not confirmed. Murder Reference No.87 of 2011 is answered in the negative. JK/S-23/L Appeal allowed.