2002 PLP 3535 (YLR)

4. Ali Mardan, S.I. P.W.20 while he was posted as S.H.O. at Police Station Factory Area, Sargodha received telephonic message from S.H.O. Police Station Gunjial, P.W.19 regarding arrest of Javed Masih accused and his disclosure for commission of the instant offence. He proceeded to the said police station and took Javed Masih into custody who while in police custody on the same day, led to the recovery of dead body of Muhammad Bashir driver of Car No.3665‑LOU from Chak No.25/DB, which was taken into possession vide memo. Exh.P.O and prepared the inquest report vide memo. Exh.P.M. On the, same day he got the post‑mortem examination conducted through Dr. Riaz Qadir Niazi, P.W.4, who found that:‑‑ " It was the dead body of a male in advanced stage of decomposition, wrapped in Razai. The dead body was full of mud and maggots were present all over dead body. Grey colour Shalwar and Kameez and a shoe of left foot was present. All the long bones and skull were separated from main trunk of the body. There was no marks of identification. Tissues from the area of neck were taken, sealed and sent to Bacteriologist for his to pathology while thyroid cartilage and hyoid bone were absent from the area of neck. A piece of rope was recovered from the body. Right tibia, fibula were absent. Rope was also sealed. Bones represent the‑body of a strong built person. Hairs present in the area of skull and the chest show that the body was of a male person decomposed, brain matter was coming out of the foremen of skull: In his opinion the cause of death could not be given as the dead body was in advanced decomposed." On 15‑4‑1998, Ali Mardan, P.W.20 took into possession car bearing Registration No.3665‑LOU vide memo. Exh.P.F. On the same day, he produced the prosecution witnesses for identification parade of Javed Masih in District Jail, Shahpur which was conducted/supervised by Ch. Liaqat Ali Chatha, Executive Magistrate, P.W.17. Thereafter, investigation was transferred to Rana Ibrar‑ul‑Hussain, A.S.I, who arrested Shahbaz accused and got declared Ulfat Hussain, co‑accused as proclaimed offender. He concluded the investigation and challaned the accused. The accused denied the allegations and claimed the trial.

5. During the trial, the prosecution examined as many as‑20. witnesses to prove the guilt of the accused.

6. Sajid Naeem, complainant was examined as P.W.8, he supported the version of the F.I.R. Nazir Ahmad was examined as P.W.9, who stated that on 3‑11‑1997, he was present at Taxi Stand alongwith Saeed Mubarik and in his presence, a man of description mentioned in the F.I.R. who later on identified as Javed Masih hired Car No.3665‑LOU for Qaidabad and took the said car alongwith driver Muhammad Bashir; deceased. On 15‑4‑1998, he held he identification parade in District Jail Shahpur and identified Javed Masih as an accused. Ijaz Ahmad was examined P.W.10, who was the witness of extra‑judicial confession. He stated that on 8‑1‑1998, he was present at the Ulfat Hussain, accused (P.O.) arrived and in his presence they one by one confessed their guilt and asked to get them pardoned from the complainant party. Suhail Masood was examined as P.W.11, he also supported Ijaz Ahmad, P.W.10 for extra‑judicial confession of Shahjaz accused and Ulfat Hussain. Ghulam Rasool, P. W.12 was another witness of last seen of deceased with the accused on 3‑11‑1997 when he was coming back to Sargodha from Harnoli alongwith Muhammad Munir, P.W. and saw the accused and deceased standing on the way as their car was punctured. He was also witness of recovery of dead body of Muhammad Bashir, Muhammad Bakhsh, S.I. P.W.15 had also partly investigated the case, Liaqat Ali Chatha, Executive Magistrate, P.W.17 had supervised the identification parade conducted in District Jail Shahpur on .15‑4‑1998 where Javed Masih, accused was identified Nazir Ahmad, P.W.9. Muhammad Sarwar, P.W.2 identified the dead body of Muhammad Bashir deceased after post‑mortem examination. Khan Muhammad; P.W.18 attested the, recovery memo. Exh.P.L through which Car bearing No.3665‑LOU was taken into possession. The remaining witnesses are of formal nature.

7. The statements of the accused were recorded under section 342, Cr.P.C., they denied the charge and claimed their innocence and false involvement.

8. The trial culminated into conviction of the appellants/accused as mentioned above. They have filed Criminal Appeal No. 10‑J of 1999 while the trial Court has sent up Murder Reference No.393‑T of 1998. Both the matter are being decided, by this judgment.

9. Learned counsel for the appellants has argued that dead body was in decomposed position according to the statement of Dr. Riaz Qadeer Niazi, P.W.1. It was not identifiable, therefore, the statement of Muhammad Sarwar, P.W.2, is not true, who claimed that he had identified the dead body, therefore, the appellants cannot be connected with the commission of the murder of Muhammad Bashir, deceased, that Javed Masih accused had taken specific objection before the `Magistrate at the time of identification parade that he was shown to the prosecution witnesses at the police station, therefore, the evidence of his identification in parade cannot be relied upon. It is further contended that Nazir Ahmad is a witness who claims that in his presence Javed Masih, appellant had hired Taxi from Taxi Stand Sargodha, but there is no evidence that the appellants committed the murder after hiring the Taxi. The recovery of car is also doubtful as recovery memo. Exh.P.L does not bear the engine of chassis number; that in statements Ijaz Ahmad, P.W.10 and Suhail Masood, P.W.11 are material contradictions and their evidence is not confidence‑inspiring as none of them was man in authority before whom the accused would have confessed their guilt; that the prosecution case is doubtful and benefit of doubt be extended in favour of the appellants.

10. Conversely, the appeal has been opposed by the learned counsel for the State, who has supported the impugned judgment. Heard. Record perused

11. The prosecution case is based on circumstantial evidence. It is settled law that in circumstantial evidence no link in the chain should be missing or broken and all the circumstances must lead to the guilt of the accused. (1995 SCMR 955, Ali Khan v. The State). The conviction on circumstantial evidence can only be made when it excludes all hypothesis of innocence of the accused (1999 PCr.LJ 764, Abdul Sattar v. State).

12. In the instant case, evidence of last seen of the deceased in the company of Javed Masih, accused has been furnished by Nazir Ahmad, P.W.9, he had seen Javed Masih at the Taxi Stand, who hired car on 3‑11‑1997. Subsequently, the deceased was also seen by Ghulam Rasool P.W.12 and Muhammad Munir, P.W.13 near Qaidabad. Nazir Ahmad had also identified Javed Masih during the identification parade, but accused Javed Masih was not put to identification to Ghulam Rasool and Muhammad Munir, therefore, the statement of Nazir Ahmad cannot be considered as evidence of last seen, to connect the accused with the murder of Muhammad Bashir.

13. The other evidence against Shahbaz accused is of extra judicial confession, alleging that he and co‑accused Ulfat Hussain (P.O.) confessed their guilt before Ijaz Ahmad, P.W.10 and Suhail Masood, P.W.11, but none of these witnesses is a person in authority. Ijaz Ahmad, P.W.10 in his statement has stated that no other person was available in the clinic of Suhail Masood when the accused confessed before them, but Suhail Masood, P.W.11 states that the other patients were also available at the relevant time. The material contradiction in the statement of two witnesses also casts serious doubt about the evidence of extra‑judicial confession made by Shahbaz accused.

14. The recovery of the car is also, doubtful as according to the prosecution case laved Masih got the car belonging to Sajid Naeem, recovered from Haveli of Salamat Masih and nothing has been brought on record that said Haveli was in exclusive possession of Javed Masih, accused. The person of the locality were also not associated in the recovery proceedings which is clear violation of section 103, Cr.P.C.

15. Another important fact in the instant case is about the identification of the dead I body. Dr. Riaz Qadeer Niazi, P.W.1 who conducted the post‑mortem examination stated that the dead body was decomposed and its identification was not possible, but Muhammad Sarwar, P.W.2 stated that he identified the dead body of Muhammad Bashir at the tune of post‑m3rtem examination. In the light of statement of the Doctor, no reliance can be placed on the statement of Muhammad Sarwar, P.W.2. We are of the view that the alleged occurrence took place on 3‑11‑1997 and post‑mortem examination was conducted on 8‑11‑1998 and the dead body was in advanced stage of decomposition and its identification was not possible and if the identification of the dead body was not possible then recovery of the same at the instance of Javed Masih becomes immaterial.

16. In view of the above circumstances, we are convinced that the prosecution has failed to establish its case against the present appellants beyond shadow of doubt, therefore, we allow Criminal Appeal No. 10‑J of 1999 filed by Javed Masih and Shahbaz Masih and set aside their conviction and sentence. Resultantly, death sentence of Javed Masih is not confirmed. The appellants are ordered to be released forthwith if they are not required to be detained in any other case. Murder Reference is answered in the negative. H.B.T./S‑512/L Appeal allowed.