P L D 2005 Peshawar 46 (PLP)

(9) One fire‑arm exit wound 1 x 1 c.m. oval in shape. 2" posterior inferior to above wound i.e. No.8. (10) to (13). Fire‑arm exit wounds size 1 x 1 c.m. each over the back on left side within the area of 3"x 3" in lumber region. Cervical plus lumber vertebrae‑ along with brain and its membranes plus spinal cord were injured. Walls, ribs and cartilages injured. Cavity full of blood. One plastic cord was recovered. Similarly pleurae, larynx and trachea, left lung, right lung was injured and one plastic cord was recovered from it. All contents of abdomen were injured. However, bladder was intact. Organs of generation were fully developed. Abdominal cavity contained blood. One plastic cord was recovered from wound No. 1 i.e. from mandible. Small intestines contained digested material and gasses, while large intestines contained faecal material and gasses. Mandible, cervical, lumber, vertebrae, ribs, tracheal rings were fractured. In the opinion of doctor, the cause of death was due to injuries to vital organs i.e. heart, lungs and brain leading to haemorrhage, shock and death. Time between injury and death: Instantaneous. Time between death and PM: Within 12 hours.

9. Lady Doctor Zahida Atta (P.W.2) on 17‑4‑1998 at 1200 Noon conducted autopsy on the dead body of Mst. Sakina Bibi resident of Kirri Khaisore and noted following injuries:‑ There were three wounds of entrance, one oval of about 1 "x 1‑1/2" in size with black margins inverted was in epigastric region, near and left to mandible. Round of about 1"x 1" in size with black margins inverted was in the iliac region. Distance between two wounds was about 4 to 5 inches. Third wound of entry was on the dorsal aspect of left upper arm. It was about 3"x 2‑1/2" in size and was triangular in shape. It was in middle of upper arm. Another wound very closed to this wound and was to the posterior side. Size was about 2"x 2". Another 4 small wounds were present in left lateral region below the axilla, their sizes were about 1 c.m. and distance was about 1 c.m. to half inch. WOUNDS OF EXIT.‑‑They were 11 in number, scattered on right side of back in the thorax region. Their sizes were about 1/2 c.m. 1 c.m. and half inches. The doctor has taken 7 pellets from the right lateral region. THORAX.‑‑Walls, ribs and cartilages, pleurae, trachea, right lung, left lung, pericardium and heart, blood vessels injured. Walls, peritoneum, oesphagus, diaphragm, stomach and its contents, pancreas, small intestines, large intestines, liver, spleen, kidneys injured. In the opinion of lady doctor, death occurred due to injuries to vital organs and main blood vessels and bleeding and shock. Probable time between injury and death: Spontaneous. Probable time between death and PM: About 12 hours.

10. In their statements recorded under section 342, Cr.P.C. the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed; their innocence. Responding to question regarding confession, appellant Shafiullah stated. "I had not made confession voluntarily, I was arrested on 17‑4‑1998 whereas the alleged confession was recorded on 21‑4‑1998. I was remanded to police custody for three days and was physically tortured by the police. I was also promised by the Investigating Officer that in case I will make tutored statement, I would be free. Moreover, the confession is inadmissible in evidence as the same was recorded on Oath and the legal formalities as required by sections 164/364, Cr.P.C. were not observed and all these facts have been admitted by the Magistrate in his cross‑examination. The alleged confessional statement being illegal and inadmissible, could not implicate me as made involuntarily." In answer to questions as to what is your statement and why P.Ws. have deposed against you, appellant Abdul Qayyum replied:‑ "There is no ocular evidence in this case. The close relations of the deceased were procured later on to create a motive for the murder. The occurrence was unseen one and since both the deceased were done to death in the Baithak, therefore, I have been involved falsely. No report was lodged by any heir of any of the deceased nor anybody has witnessed the occurrence. The police officials have made efforts to make the prosecution case successful. There is no independent witness of any quarter. I am innocent and have been falsely charged. Someone close relative of deceased Mst. Sakina Bibi might have caused the death of both the deceased seeing them in objectionable position committing Zina with each other in same room." However the appellants opted not to make any statement on Oath under section 340(2), Cr.P.C and they also did not produce any evidence in their defence.

11. At the conclusion of the trial, trial Court found the prosecution case against the appellants to have been proved beyond reasonable doubt and thus, the appellants were convicted and sentenced as mentioned and detailed above.

12. Arguing the case on behalf of accused‑appellants, Mr. Muhammad Karim Anjum Qasuria, Advocate vehemently contended that there is no direct evidence against them on the record and the prosecution has merely relied upon circumstantial evidence furnished by P. Ws. Muhammad Khan and Arshad Bilal and the same could easily be procured to give stand to the prosecution case; that though such an evidence can be made basis of conviction of an accused but all its chains must on the record tightly led to the, hypothesis of guilt of accused and when it may not be so, then benefit of doubt is to be given to accused; that the circumstantial evidence has not been corroborated by any independent evidence and recovery of dead bodies, cycle, torch and Chappal of Muhammad Iqbal deceased from the Baithak of Abdul Qayyum accused do not connect the appellants with the commission of crime in any manner. The learned counsel added that the motive put forth by the prosecution has not been satisfactorily proved and Shafiullah appellant had no reason to kill his wife without any justifiable reason. The learned counsel also criticized the confession of Shafiullah appellant and contended that neither it is true nor voluntary and nor was recorded according to law. To support the plea, he relied on the judgments of this Court titled Muhammad Israf and another v. The State (2002 PCr.LJ 1072 Peshawar) and State through Advocate General N.‑W.F.P., Peshawar v. Mumtaz and two others (1987 PCr.LJ 1796). 12‑A. Conversely, Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate General for the State has supported the impugned Judgment maintaining that the prosecution as per its circumstantial evidence on record furnished by the independent witnesses and corroborated by the medical evidence, recoveries from the Baithak of Abdul Qayyum appellant, the reports of Forensic Science Laboratory and Firearms Expert, Peshawar coupled with the confessional statement of appellant Shafiullah fully prove the involvements of the appellants and that in any case the conviction and sentence is perfectly right and warrants no interference of this Court. Mr. Sanaullah Khan Gandapur, Advocate for the complainant adopted the arguments of learned Deputy Advocate‑General and supported the impugned judgment whole heartedly. He placed reliance on Muhammad Islam and another v. The State (1995 SCMR 1615), Muhammad Bakhsh v. The State (PLD 1956 SC 420) and Khan Muhammad and others v. The State (1999 SCMR 1818).

13. We have heard and gone through the evidence in entirety. For re‑appraisal of evidence, we have also taken everything into our full consideration in the light of arguments addressed by both the sides.

14. There is no direct evidence in this case and the prosecution evidence rests on the circumstantial evidence which has totally failed to connect the appellants with the commission of offence. The statement of P. Ws. Muhammad Khan and Arshad Bilal are discrepant and pregnant with serious infirmities which cannot be relied upon and made basis of conviction of the appellants in absence of strong corroborative evidence which is lacking in this case. It is well‑settled that in a case resting on the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. The circumstantial evidence for securing conviction must be irreversible, authentic and shall exclude all the possibilities of the innocence of the accused, which is not the case here. In case of an un-witnessed crime, all possible circumstances are taken into consideration and thereafter a conclusion is drawn and on that basis the investigation starts. The statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. Haroon alias Harooni, v. The State and others (1995 SCMR 627). As already stated there is no direct evidence in the case and the appellants are sought to be linked with the crime only by the statements of witnesses, confession of Shafiullah appellant and recoveries etc. Neither evidence was led by the prosecution to show the place of occurrence nor were the appellants alleged to have been seen near any such place. The recovery of gun or matching of the crime empty with the gun is not sufficient ground by itself to prove the commission of murders by the appellants. There is no evidence of the deceased having been last seen in the company of the appellants. To get the accused convicted in an offence of capital punishment, the prosecution is bound to prove its case, wherein no weakness could be found to give the benefit of doubt to the accused. There should be no dispute with the proposition when an accused person is charged with an offence then the 'entire onus has to be discharged by the prosecution and it is obligatory that the offences should be proved beyond any reasonable doubt. The onus never shifts to the defence. Last seen evidence is a weak type of circumstantial evidence and solely on this basis, conviction cannot be sustained. The circumstantial evidence for securing conviction must be irreversible, authentic and shall exclude all the possibilities of the innocence of the accused, which is not the case here. In case of an un-witnessed crime, all possible circumstances are taken into consideration and thereafter a conclusion is drawn and on that basis the investigation starts, as pointed out earlier. 14‑A. One of the pieces of evidence relied upon is confessional statement of Shafiullah appellant recorded by Mr. Qaisar Rahim Magistrate. The learned trail Court by convicting the appellants has placed an implicit reliance on the said confessional statement but has legally erred in not making its assessment in its true perspective. The confession was recorded on oath which is hit by the provisions of section 5 of the Oaths Act (X of 1873) and as such is inadmissible in evidence. Moreover, the Magistrate has failed to observe the legal mandatory provisions of sections 164/364, Cr.P.C. Besides, the said confession was recorded after three days of police custody of Shafiullah appellant as he was arrested on 17‑4‑1998 and his confessional statement was recorded on 21‑4‑1998. Moreover, the said confession was retracted which further remains uncorroborated from other material evidence. The other legal formalities, though stated to have been fulfilled, yet do not seem to have been complied with. In Manzoor v. The State (PLD 1973 Lahore 714), it was observed: "The accused's prolonged detention in police custody was illegal on the face of it, but Magistrate had not bothered to inquire from the appellant as to when in fact he was arrested, for how long and where and under what circumstances he had been kept by the police during this period or what had induced him to create such a serious situation for himself by making a confession, as prescribed in Chapter 13 of Volume III of the High Court Rules and Orders and highlighted in the under-noted authority laying down a guideline for the Magistrate in discharging this solemn duty.. It requires them to make a real endeavour to find our the voluntary nature of the confession by suggesting a number of questions other than those printed in the prescribed form for putting to such persons so that it is not performed in a mechanical manner. If any of these questions had been put to the appellant at the time of his production before the Magistrate it might have created in him a sense of free atmosphere and encouraged him to seek the protection of the Court against the highhandedness of the police and would perhaps have brought the cat out of the bag. The Magistrate had no doubt sent him to the, judicial Lock‑up for a day to disabuse his mind of any extraneous influence before recording his statement under section 164, Cr.P.C but he failed in his duty by omitting to put the necessary questions to him with that end in view which had left no string in this confessional statement although it bore the stamp of all the legal formalities.

15. Motive over money affair was between Abdul Qayyum and Muhammad Iqbal and not between Shafiullah and the deceased whereas Mst. Sakina Bibi wife of Shafiullah was killed with the deceased in the same room. In the circumstances, how could Shafiullah manage to kill his own wife for a money dispute between his co‑accused Abdul Qayyum and deceased Muhammad Iqbal. It has come in evidence that relations between Shafiullah and his wife Mst. Sakina Bibi deceased were not cordial and owning to it she was residing in the house of her parents. It is not discernable how she happened to come to the Baithak of Abdul Qayyum. When attention of learned State counsel was drawn to this aspect of the case, he had no reply to make.

16. Muhammad Saeed maker of the F.I.R. has not appeared in this case which has also made the prosecution story doubtful. It is not denied that unless tie lodger of F.I.R. deposes in the Court, the F.I.R. itself containing the statement of a maker is not to be taken against the accused i.e. the narration in the F.I.R. against him as the F.I.R. is not substantive piece of evidence and its contents are not proved unless the maker states as such in the Court. Asal Muhammad v. The State (PLD 1994 Peshawar 227).

17. As far as medical evidence is concerned, suffice it to say that the medical evidence itself without further corroboration cannot connect an accused person with the crime. It only establishes death and does not indicate at all as to who has a hand in the commission of offence. If an authority is needed on the point, reference can be made to Masood Ahmad and others. v. The State (1995 SCMR 127) and Saifullah and others v. The State (1986 PCr.LJ 2794).

18. From whatever angle the prosecution evidence is looked at, it does not inspire confidence and as such the charge against the appellants cannot be held to have been proved beyond any shadow of reasonable doubt. The occurrence is unseen and the corroborative evidence is so weak and untrustworthy that it cannot remove the inherent defects in the prosecution story. The occurrence in this case took place in an unknown manner and the case is based on circumstantial evidence. In a case of circumstantial evidence, every chain of evidence of prosecution must be linked with the other chain of evidence of prosecution. If one chain is broken, then the case of prosecution automatically falls on the ground.

19. The upshot of the above discussion is that there being no satisfactory basis for upholding the conviction and sentences of the appellants, the appeal is allowed, the conviction and sentences of the appellants are set aside and they are acquitted of the charge. They be set free forthwith if not required in any other case. Death sentences awarded to the appellants are not confirmed. Murder Reference is answered in the negative.

20. We had, by our short order dated 29‑9‑2004 allowed this appeal and acquitted the appellants for reasons to be recorded later. Above are the detailed reasons. H.B.T./267/P Appeal allowed.