2014 PLP 782 (YLR)

SALAHUDDIN PANHWAR, J.

The appellant Akbar Ali Shah has assailed the Judgment dated 31st January, 2006, passed by learned Additional Sessions Judge, Moro, in Sessions, Case No. 64 of 1998 (Re. The State v. Akbar Ali Shah and another), under sections 302, 364, 34 P.P.C. (Crime No.39 of 1998 of Police Station, Moro), whereby the trial Court, convicted the appellant and sentenced him to suffer penal servitude for life imprisonment under section 302(b), P.P.C. and to pay Rs.50,000,00 (Fifty Thousand Rupees) to the legal heirs of deceased Muhammad Ali as compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. was extended to him.

2. Succinctly, fact of the prosecution case are that on 1-5-1998 at 1500 hours, the complainant Haji Muhammad Anwar lodged F.I.R; wherein he contended that he owns a shop in the name of Al-Shahbaz Tube-well Spare Parts, on main road, Moro Town; his son Muhammad Ali, aged about 20 years, runs the business of said shop, while one Pir Muhammad Bux is partner, who also used to sit at the shop. Complainant also owns a Chilli Factory in the Town, which is being looked after by his another son Nasir and for transportation of articles he has one Mazda vehicle, which was driven by Akbar Shah son of Hadan Shah R/o Moro. On 10-3-1998 complainant proceeded to Saudi Arabia for performing Umrah and on 18-4-1998, returned back to his house; where his sons and relatives met him, but his son Muhammad Ali was not there, on his inquiry, his maternal-nephew Muhammad Aslam son of Muhammad Ilyas informed him that on 11-4-1998; he was available at the shop of Muhammad Ali, where Pir Muhammad Bux, came there, they sold articles of the shop and collected Rs.50,00,000, which amount was kept by Muhammad Ali in his pocket, with intention to deposit the same in the bank, on the next day; Muhammad Ali used to wear gold ring in his finger and gold locket in his neck, while at about 6-00 p.m Akbar Shah driver and Ghulam Ali Soomro came at the shop, Akber Shah disclosed that he is not feeling well and Muhammad Ali, should drop him on his motorcycle to his home, on which Muhammad Ali picked up, Akbar Shah and Ghulam Ali on his motorcycle CD-70 red colour and proceeded to his house, but did not return; thereafter Pir Muhammad Bux after closing the shop went away. On the next day, P.W Aslam came in Moro Town, went on his shop, where he noticed that Muhammad Ali had not come back to his house, thereafter he went to Chilli factory along with Nasir and Muhammad Bux and inquired about Muhammad Ali from Akbar Shah, who replied that after leaving Akbar Shah to his house Muhammad Ali returned back; Pir Muhammad Bux was in search, when on 14-4-1998, P.W Nasir Ali received a chit, from his factory, wherein it was contended that Seth Sarwar your son is with us and after payment of Rs.700,000-00 he should be released, if amount will not be arranged or any information conveyed to the police, your son will be killed, hence he remained silent and was searching, through private sources. On the day of lodging the F.I.R, he came to know that in the jurisdiction of Ali Abad Police Station, one dead body has been found, thus, accompanied his witnesses, went to Police Station, Ali Abad and met with the S.H.O, who disclosed that one dead-body was found from Daulatpur Minor and after having some photographs the dead body has been buried, he identified the dead body through photographs of his son Muhammad Ali, therefore, he went to Police Station and lodged such F.I.R. that accused Akbar Shah and Ghulam Ali Soomro in furtherance of their common intention due to greed of cash had taken his son tactfully from his shop and have committed his murder and thrown his dead body in Daulatpur Minor and decamped his motorcycle at unknown place. He has also come to know that one Wahid Bux son of Haji Khaskheli, neighbourer of Akbar Shah is also involved in the murder of his son.

3. After usual investigation, police arrested accused Akber Shah on 10-5-1998 whereas accused Ghulam Ali and Wahid Bux were also arrested on 14-5-1998; accused Akber Shah produced incriminating articles viz. One hatchet (blood-stained), one Scissor; he also pointed out the temporary grave of deceased Muhammad Ali; on the same date accused Akbar Shah in presence of Sub-Divisional Magistrate, Moro, Chairman Khidmat Committee, Moro Pir Muhammad Bux, Muhammad Aslam, pointed out the place which was situated inside the room of the house of accused Akbar Shah, where he pointed out that by causing injuries with hatchet and Scissor, they committed the murder of deceased Muhammad Ali and buried him in a grave, while putting its dead-body, his motorcycle, gold ring, gold locket, his footwear, photocopy of registration book of Motorcycle, were buried inside the room and thereafter they took out the dead- body of deceased and thrown it after removing his clothes in Daulatpur Minor, all the accused persons, were arrested and sent up for trial.

4. The case of co-accused Ghulam Ali was bifurcated being juvenile and proceeded in the Juvenile Court, Naushahro Feroze, whereas the case of appellant Akbar Shah and Wahid Bux was sent to the ordinary Court for its disposal according to Law.

5. The charge against the appellant/accused was framed at Exh.2, to which they pleaded not guilty and claimed their trial vide their pleas were recorded at Exhs.3 and 4.

6. To substantiate its case, prosecution examined P.W.1 Haji Muhammad Anwer at Exh.5, he produced F.I.R. at Exh.5/A; P.W.2 Pir Muhammad Bux at Exh.6, he produced chit, 164, Cr.P.C., statement at Exh.6/A and 6/B; P.W.3 Inspector Azizullah at Exh.8; P.W.4 Dr. Muhammad Ali at Exh.9, he produced post-mortem report of deceased at Exh.9/A; P.W.5 Tapedar Altaf Ali Raza at Exh.10, he produced sketch of vardat at Exh.10/A; P.W Nasir, which was allowed and P.W.6 Nasir Ali was examined at Exh.11; P.W.7 Nazar Muhammad Kalhoro, SDO, Moro (DCO Naushahro Feroze) at Exh.12, he produced mashirnama of recovery of motorcycle, golden ring, golden chain, Footwear, Photocopy of documents of motorcycle, Spade and seeing the murder place, buried and digging out the place of deceased Muhammad Ali at Exh.12/A; mashirnama of recovery of recovery of hatchet and Scissor at Exh.12/B; P.W.8 Nisar Ahmed at Exh.13, he produced mashirnamas at Exh.13/A to D respectively; P.W.9 Allah Jurio at Exh.14, he produced further statement under section 162, Cr.P.C. at Exh.14/A; P.W.10 Abdul Raheem at Exh.16. Thereafter the side of the prosecution was closed at Exh.17.

7. The statement of appellant/accused and co-accused were recorded under section 342, Cr.P.C, wherein they professed their innocence and did not examine themselves on oath nor led any evidence in defence.

8. Learned counsel for the appellant, inter alia, contended that the impugned judgment is against the settled principles of law, there was no direct evidence; F.I.R was recorded with delay of Nineteen days, same is not plausibly explained, thus false implication of the appellant/accused cannot be ruled out. It is admitted position that after completion of other proceedings F.I.R was recorded, such aspect is fatal to the prosecution; it is also strange that the demand slip issued by the dacoits reveals that it was addressed directly to the father of deceased Muhammad Ali, thereby demand of Rs.700,00,000 was made, but it is strange that when appellant was servant of deceased and complainant; complainant was at that time in Saudi Arabia to perform Hajj, then how appellant can make such type of demand from a person who was not available in Pakistan at the time of incident, in spite of that, this aspect was not considered by the trial Court; it is astonishing that when complainant came in Pakistan, his relatives went to receive him at Karachi Airport, but they did not disclose him about such incident of abduction or murder of his son Muhammad Ali. It is also not believable that how it is possible that his son Nasir who is brother of deceased Muhammad Ali and son of complainant also not disclosed to his father about this incident; though recovery was effected from the house but requirements under section 103, Cr.P.C. were not completed; prosecution also failed to prove the death of the deceased as admittedly deceased was buried as unknown person and according to prosecution photographs were taken but such photographs were not produced before trial Court; thus, this is a case of no evidence and evidence on the point of last seen is completely contradictory and mysterious, therefore, on this evidence a person cannot be convicted. Admittedly according to prosecution two persons identified the photograph of deceased, who were not examined by the prosecution. He has relied upon case of Muhammad Nadeem v. The State 2011 SCMR 1517; case of Munir Ahmad Dar v. Imran and others (2001 SCMR 1773) and case of Mir Muhammad v. The State (1995 SCMR 614).

9. Conversely, learned A.P.-G. on behalf of State contended that the appellant/ accused has committed the murder of deceased, because lastly he being a servant of the deceased and complainant had come to his shop and requested him to drop him as he was not feeling well, as such the deceased took him and one Ghulam Ali Soomro for dropping him at his house; the deceased had taken cash of Rs.50,00,000 so also motorcycle, therefore, in greed the appellant along with co-accused have committed his murder in a brutal manner by causing him hatchet and Scissor injuries. It is further contended that a demand chit was also issued to the father of the deceased namely Haji Muhammad Anwer demanding ransom of Rs.700,000-00 for his release, though the father of deceased was not available in Pakistan and had gone for performing Hajj; ocular evidence is corroborated by medical evidence; on the pointation of appellant/ accused Akber Shah the recovery was Affected from him, therefore, the Judgment passed by learned trial Court is liable to be upheld and the appellant/accused is not entitled for any concession: He has relied upon case of Shah Jahan v. The State (2012 YLR 1355), Qaiser Muhammad v. The State (2012 PCr.LJ 930) and Gul Muhammad v. The State (2011 SCMR 670).

10. Heard the counsel and perused the record.

11. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the instant matter ocular evidence is not available except circumstantial evidence.

12. It is worth to add here that general principle is that conviction cannot be based on any other type of evidence, howsoever, convincing it may be, unless direct or substantive evidence is available because the guilt cannot be based on high probabilities, but circumstantial evidence, which is also known as indirect evidence is an exception to above principle. The requirement of proof such cases, basing on circumstantial evidence only, is that every link has to be proved by good and convincing evidence. Broadly speaking the circumstantial evidence is based on last seen, extra-judicial confession, recovery of stolen good, recovery of incriminating material i.e. weapon of offence, pointation of dead body at instance of accused, recovery of articles belonging to deceased. Above all, it is to be established on record that every piece of circumstantial evidence fits in with another piece of such evidence in the chain and corroborates each other. In that contest, the role of prosecution agency collecting evidence against the accused is very important and it is to be seen that the same is above board and free from any doubt and suspicion.

13. In order to examine the case in hand on above touchstone, it is important to refer the relevant portion of evidence brought on record by the prosecution to prove its case and examine whether the prosecution successfully established an unbroken chain of links of events free from any doubt and suspicion which could safely hold the conviction.

14. P.W/complainant Haji Muhammad Anwer deposed in his cross-examination that:-- "when I returned from Saudi Arabia after performing Hajj, the incident was already taken place about 13/14 days back, on reaching by me at Moro. P.W Pir Muhammad Bux always remained with my son as he was partner with me. Pir Muhammad Bux had not disclosed anything about my son only Aslam disclosed regarding my son." The evidence of complainant makes it clear that he was at Saudi Arabia at the time of alleged incident so has not claimed to have seen the deceased lastly in company of the accused but he has claimed to have acquired such knowledge from his relatives on inquiry, therefore, it is quite safe to say that evidence of complainant to the extent of last seen is not worth reliance being hearsay one.

15. It has also become obvious from evidence of complainant that he has named the accused/appellant in the F.I.R. only because of suspicion. The evidence of complainant also goes to suggest that he was not sure about the dead body to be of his son because he stated in his chief that "Photographs shown to him by Police Station, Daulatpur, where I came to know from people/shop-keeper who was known to my son as he used to go there for selling of chilies and his dead-body was buried at Kazi Ahmed was my son. The dead body of my son was not taken out from the grave as I confirmed that from the photograph and the evidence of people of area that dead-body which was buried at Kazi Ahmed was of my son". This piece of the statement of the complainant makes it quite clear that photographs alone were not sufficient for identification of the dead body, therefore, the complainant had to refer to evidence of the people of area that dead-body which was buried at Kazi Ahmed was of his son. At this point it is also worth to add that per evidence of the Medical Officer the dead body was also not identifiable. Though complainant claimed that people of the area knew his son (deceased) but admittedly the dead body was buried as that of unknown person. Here it is also important to mention that P.W Inspector Azizullah, S.I.O Kazi Ahmed admitted in his cross-examination that "It is correct that I have not produced the photograph of deceased during my evidence before this court nor in court where juvenile trial is pending. It is correct that I have not produced any Karwai which I had prepared at Police Station regarding receiving the dead-body from Daulatpur Minor". Such attitude on part of the prosecution is quite strange that such important document (photo graphs) were not brought on record though the identification of the dead body was claimed through it. Needless to add here that no charge of murder can safely be established in absence of dead-body of the claimed deceased because one is specifically alleged to have murdered specific person, therefore, this aspect of the accusation carries its own weight and significance but in the instant case this remained under clouds.

16. The prosecution has examined the P.W. Pir Muhammad Bux only to establish last seen evidence who has stated in his examination that on 1-4-1998 in his presence and that of Muhammad Aslam the deceased was last seen going with appellant Akber Shah and Ghulam Ali Soornro. The attitude of the witness for keeping silent for an indefinite period, despite threat to life of deceased also makes his testimony doubtful, P.W. Pir Muhammad Bux does not corroborate evidence of P.W. Nasir regarding inquiry from Akber because P.W. Pir Muhammad Bux claimed that they had called Akber at shop while P.W. Nasir stated that they had gone to Factory for inquiry purpose from appellant Akber. Besides the manner in which the P.W. Nasir, a real brother remained silent about missing of his real brother and not discussed the matter with complainant is also quite strange particularly when there was a demand of ransom with a life threat to deceased. The P.W. Nasir is not a witness of last seen but his evidence is resting on information received from Muhammad Aslam and P.W. Pir Muhammad Bux hence his evidence is of no help for prosecution.

17. The prosecution further examined P.W Inspector Azizullah, S.I.O Kazi Ahmed to produce the factum of recovery of dead body from the Minor who also claimed to have prepared such documents and that of taking photographs of dead body but admittedly he produced nothing on record to substantiate that it was the dead body of the deceased which is evident from his cross-examination that "It is correct that I have not produced the photograph of deceased during my evidence before this court nor in court where juvenile trial is pending. It is correct that I have not produced any Karwai which I had prepared at Police Station regarding receiving the dead-body from Daulatpur Minor, though I have not produced any receipt of dead-body which I handed over to administrative Kazi Ahmed for funeral ceremony.

18. Now there comes the evidence of recovery of articles on alleged pointation of the appellant Akber Shah for which the prosecution produced examined the P.W Nazar Muhammad, Nisar Ahmed, Allah Jurio (Investigation Officer) and Abdul Raheem (Movie Maker).

19. P.W Nazar Muhammad has deposed in his examination-in-chief that he was posted as S.D.M. Moro. On 10-5-1998 S.H.O. Police Station Moro namely Allah Jurio Khokhar came to him, wherein stating that appellant Akbar Shah was arrested; confessed his guilt and wanted to produce motorcycle and other articles belonging to the deceased Muhammad Ali which he buried inside the room of his house. On which he, Chairman Khidmat Committee namely, Abdul Sattar Mughal, P.Ws. Pir Muhammad Bux, P.W. Muhammad Aslam accompanied with the SDM to the house of accused Akbar Shah which was situated in the eastern side of the National Highway near Drainage of Moro Town who in their presence pointed out the place which was situated in room of his house and on his pointation earth was dug out and motorcycle CD-70 Honda bearing No.2115, Engine No.1620815, Chassis No.124493, one golden ring, one locket and one white paper photocopy on the name of Ghulam Ali duly blood-stained, one Spade and one Bicycle and blood-stained earth were secured and so also cash amount of Rs.25,000-00 such mashirnama was prepared by the S.H.O. in presence of mashirs, such mashirnama was arrested by me/before me.

20. Here one thing is very alarming that not only the S.H.O is supposed to he very much aware with the rules, procedure and law but also the P.W. Nazar Muhammad, being S.D.M. but despite this neither the S.H.O bothered to properly approach the SDM for supervising search proceedings nor the SDM took any trouble to ask for such requirement of law. The admission of I.O. to the effect that I personally went to the S.D.M, Moro and requested to accompany with us for the recovery of articles from the possession of accused" is material that how he dared to ignore the requirement of law. It is also surprising that when the appellant Akber Shah had voluntarily confessed his guilt and was prepared to produce the articles then why the I.O. did not consider it necessary to get his confession recorded or least to have approached the S.D.M. with a written request for such purpose; Worth to add here that provision of section 103 Cr.P.C. is mandatory in nature hence it should be followed in its letter and spirit.

21. The perusal of the evidence of said P.W. further shows that he nowhere spoke about making of movie of such proceedings and even did not claim that any movie maker was in their company. Without prejudice to above, it is also quite surprising that why the I.O. did not consider it necessary to have put such recovered belonging of deceased for identification. The concealment of the motorcycle by digging earth within the room is also improbable and against the logic because it would have been rather easy for the accused persons to have disposed of concealed the motorcycle as was done with the dead body. Even the allegedly recovered motorcycle from beneath the earth it was not mentioned in the mashirnama of recovery that it was found rusted rather mashirnama shows that it was otherwise. Further, P.W. Allah Julio, Investigation Officer stated about recovery that "on the pointation of accused Akbar Shah earth of ground of the room was dug out one motorcycle, one golden ring, golden chain, Chappal of deceased, one Spade" while the Mashir Nisar Ahmed stated that "Motorcycle produced by the accused Akbar Shah from inside the house room along with key, registration book (PS copy), one Spade, One Bicycle, One golden ring, one golden locket of the deceased in presence of S.D.M Moro and such mashirnama was prepared by the police and had put my signature". The I.O. and Mashir do not support each other in respect of manner of securing of articles. It is worth to add here that neither mashir Nisar Ahmed nor S.D.M. as well the movie maker have spoken about recovery of Chappal of deceased. Therefore under these circumstances recovery cannot be relied upon in instant case. On this proposition, honourable Supreme Court in case of Muhammad v. State, held that: "From above it is evident ,that it is not only that the recovery officer and marginal witness have shown different places of arrest and recovery of the crime weapon from the appellant but they have also contradicted each other in other material aspects be that as it may, it does not appeal to common sense that an accused of a heinious crime of murder, in this case the appellant, would instead of swiftly getting rid of the weapon used in commission of crime, prefer to carry the same all along after 10/11 days to be arrested in a dubious manner leading to its recovery to be used against him as a strong corroboratory piece of evidence. The recovery of pistol in the circumstances cannot be said to have been established." Further, the I.O. in his statement stated that appellant admitted before him that "hatchet and Scissors, motorcycle, golden ring, Olden locket of the deceased are in his possession and he is ready to produce the same while the dead body of deceased Muhammad Ali was thrown in the minor canal" and as per statement of the I.O. they directly were led by the appellant to his house from where articles were recovered after digging the earth but the mashir Nisar Ahmed speaks otherwise as he first speaks about recovery of hatchet and scissors on pointation of appellant Akber from bank of the Minor and then states that on the same police also recovered other articles from house of appellant Akber. The I.O. in his examination, even, has not stated about recovery of scissor and hatchet. This also brings clouds over testimonies of these material witnesses in respect of manlier of recovery of articles, places of recovery and even alleged extra-judicial confession of the appellant.

22. Further, it also appears from the record that movie does not specifically prove that it was the house/room of the appellant from where recovery was effected as is evident from admission of the movie maker, the P.W. Abdul Raheem that "It is incorrect that I have not picturized/shown other houses situated adjacent to the house of accused". This also brings cloud over place of recovery to be house of appellant Akber.

23. The above discussion of the evidence of the witnesses, it is manifest that the prosecution failed in establishing all the links properly and neatly fitted with each other in a above board manner and also failed in building a chain of unbroken links of circumstances hence in such like situation the appellant Akbar is entitled for benefit of doubt because no evidence could rest on circumstantial evidences if some of the links are either missing or under clouds/ doubts.

24. These are the reasons of the short order dated 15-4-2013, whereby the appellant Akbar was acquitted. HBT/A-146/K Appeal allowed.