PLJ 2022 Cr.C. (Note) 21
Testimony of witness--
----Untrustworthy--It is a settled proposition of law that a witness who improves his statement on material aspects of the case is untrustworthy. [Para 12] A
1985 SCMR 685, 2008 SCMR 6, 2011 SCMR 474 & 2017 SCMR 344.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 34, 364 & 201--Conviction and sentence--Challenge to--Benefit of Doubt--Qatl-i-amd--Blind murder--Circumstantial evidence--Comprising on last seen evidence--Recovery of incriminating material--Motive--Benefit of doubt--Medical evidence--Wrist watch was of common pattern and in absence of receipt thereof cannot be connected with deceased--Even otherwise, provisions of Section 103, Cr.P.C. were not complied with and no independent witness from public was associated with recovery proceedings which make entire exercise dubious--In circumstances, it can hardly be used for any corroboration--Motive did not relate to appellant and during trial prosecution did not lead any evidence to prove it--More importantly, ‘M’ was not any of legal heirs of Complainant and was not entitled to inherit from him even if deceased was killed--Prosecution version that he perpetrated his murder for sake of property is fallacious--Held: It is by now well settled that in a case based on circumstantial evidence every piece of evidence should be so inter-connected that it proves a continuous chain and its one end should touch dead body of deceased and other should clench neck of accused thereby excluding all hypothesis of his innocence--In instant case, prosecution has failed to produce any tangible evidence to connect Appellant with offence--As such, he is entitled to benefit of doubt--Appeal allowed.
[Para 14, 17 &18] B, C & D
Mr. Muhammad Ijaz Khan, Advocate for Appellant.
Mr. Ikram Ullah Khan Niazi, Deputy Prosecutor General for State.
Mr. Salman Haider Hashmi, Advocate for Complainant.
Date of hearing: 7.3.2018.
PLJ 2022 Cr.C. (Note) 21
[Lahore High Court, Lahore]
Present: Tariq Saleem Sheikh, J.
HABIB-UR-REHMAN--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 1267 & Crl. Rev. No. 718 of 2013, decided on 7.3.2018.
Judgment
Appellant Habib-ur-Rehman was tried by the Additional Sessions Judge/Juvenile Court, Hafizabad, for committing Qatl-i-Amd of Faisal Raza in case FIR No. 815/2011 dated 18.8.2011 registered at Police Station City Hafizabad for offences under Sections 302, 364, 201, PPC. The learned trial Court, vide judgment dated 28-06-2013, convicted and sentenced the Appellant as under:
i) Under Section 302(b)/34, PPC:
Imprisonment for life with direction, to pay Rs. 2,00,000/- to the legal heirs of the deceased as compensation in terms of Section 544-A, Cr.P.C. and in default thereof .to undergo simple imprisonment for a further period of 6 months.
ii) Under Section 364/34, PPC:
Rigorous imprisonment for 10 years along with fine of Rs. 50,000/- and in default thereof to undergo simple imprisonment for a further period of four months.
iii) Under Section 201/34, PPC:
Rigorous imprisonment for three years along with fine of Rs. 20,000/- and in default thereof to undergo simple imprisonment for a further period of three months.
The sentences of imprisonment were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended to the Appellant.
The Appellant has assailed his conviction and sentence before this Court through Crl. Appeal No. 1267/2013. On the other hand, Complainant Irshad Muhammad has filed Crl. Revision No. 718/2013 for the enhancement of his sentence. I propose to decide both these matters by this single judgment.
2. Brief facts of the case are that on 18.8.2011 Complainant Irshad Muhammad (PW-1) submitted an application (Exh.PA) at Police Station City Hafizabad stating that he was an overseas Pakistani working abroad. On 16.8.2011 his son Faisal Raza aged 14/15 years went to see his friends but did not return home. His family searched for him when they came across Aamir son of Aslam, Yasin son of Muhammad Anwar and Mehmood Ahmad son of Sardar Muhammad who informed them that Faisal Raza was abducted by three unknown persons in a white car. Faisal Raza had a mobile phone Nokia-5230 with SIM No. 0306-5507629 which was also taken away by the accused. On receipt of information regarding abduction of his son, he rushed to Pakistan and reported the matter to the police. Mubashar Ahmad/ASI (PW-14) received application Exh.PA and registered FIR No. 815/2011 (Exh.PA/1) against unknown accused persons for an offence under Section 365, PPC. Investigation of this case was initially entrusted to Muhammad Ashfaq/SI (PW-8). He visited the place wherefrom Faisal Raza was abducted and prepared its rough site plan (Exh.PN). On 20.8.2011 the Complainant moved another application (Exh.PB) before him stating that PW-Nadeem Abbas (given up) and Ghulam Abbas (PW-2) had informed him that they had seen Faisal Raza in the company of Appellant Habib-ur-Rehman and co-accused Mudassam-ur-Rehman, and Muhammad Irfan in a white car near the WAPDA office on 16.8.2011. In the said application the Complainant also set up the motive behind the occurrence. He alleged that Mudassam-ur-Rehman, who was the son of his sister-in-law and was living in his house, wanted to grab his property after removing Faisal Raza. He further alleged that he had abducted him with the aid of the Appellant and co-accused Muhammad Irfan to commit his murder.
3. Meanwhile, on 18.8.2011 at about 12:00 noon, one Mubarak Ali along with Muhammad Imran (PW-6) and Muhammad Arshad was cleaning the watercourse of the oil factory in Batairy, District Hafizabad. They saw a sack lying there which was stinking. They opened it and found dead body of an unknown 24/25 years old man. On the statement (Exh.PP) of Mubarak Ali case FIR No. 491/2011 dated 18.8.2011 (Exh.PP/1) was registered at Police Station Saddar Hafizabad for an offence under Section 302, PPC. Muhammad Mansha/SI (PW-9) of the said police station reached the place of recovery of dead body, took it into custody and prepared Injury Statement (Exh.PQ), Inquest Report (Exh.PR). Then he drafted an application for past-mortem (Exh.PS) and prepared rough site plan (Exh.PT) and summoned a photographer named Muhammad Ashraf who took snaps of the dead body Exh.P.5/1-3. After all these proceedings Muhammad Mansha/SI dispatched the corpse to hospital for autopsy. He also recorded the statements of the witnesses under Section 161, Cr.P.C. On 19.8.2011 when the post-mortem was done Basharat Ali constable produced before him the last worn clothes of the deceased P.1 to P.4 which he secured vide Memo Exh.PU. Thereafter, Muhammad Mansha/SI submitted application (Exh.PV) to the TMA Hafizabad for burial of that unknown dead body.
4. On 30.8.2011 Complainant Irshad Muhammad received information about the burial of an unclaimed corpse by the police of P.S. Saddar Hafizabad. He went to that police station along with Nadeem Abbas and Muhammad Akram and identified last worn clothes P.1 to P.4 and photographs P.5/1-3 to be of Faisal Raza deceased. Identification Memo Exh.PC was duly prepared. On the same day the Complainant submitted another application Exh.PD to the SHO Police Station City Hafizabad and informed him about the factum of identification of the dead body of the deceased. He added that Appellant Habib-ur-Rehman and his co-accused had thrown the corpse in the watercourse to screen their offence. Consequent thereupon, Sections 302 and 201, PPC were added in FIR No. 815/2011 (Exh.PA/1) and investigation of the case was handed over to Sajid Mehmood/SI (PW-12).
5. On 18.9.2011, Sajid Mehmood/SI arrested the Appellant co-accused Mudassam-ur-Rehman and Muhammad Irfan. On 28.9.2011, during interrogation Mudassam-ur-Rehman got recovered Chadar (shawl) P.6, while Muhammad Irfan and the Appellant respectively led to the recovery of Nokia mobile phone P.7 and wrist watch P.8 belonging to the deceased. Sajid Mehmood/SI found that the Appellant and his co-accused were involved in the murder of Faisal Raza. Report under Section 173, Cr.P.C. was submitted accordingly. The learned Additional Sessions Judge indicted the Appellant on 23.5.2012. He denied the charge and claimed trial.
6. During the trial the prosecution produced 14 witnesses to prove its case. The Court also examined the Appellant under Section 342, Cr.P.C. in which he refuted the allegations leveled against him and professed innocence. He maintained that he had been implicated in this case owing ‘to suspicion. However, he neither got his statement recorded on oath under Section 340(2), Cr.P.C. nor produced any evidence in his defence. On the conclusion of the trial the learned Additional Sessions Judge, vide judgment dated 28-06-2013, convicted and sentenced the Appellant as mentioned hereinabove.
7. In support of the Crl. Appeal No. 1267/2013, Mr. Muhammad Ijaz Khan Advocate, contended that Appellant was innocent and the Complainant had falsely implicated him in this case. He argued that, firstly, it was an unseen occurrence and there was no trustworthy evidence to connect him with the offence. Secondly, Ghulam Abbas (PW-2) and Mehmood Ahmad (PW-3), who furnished the last seen evidence were chance witnesses and had failed to justify their presence near the WAPDA office at 2:00 p.m. on 16.8.2011. Even if the said witnesses were believed, last seen evidence being a weak type of evidence could not be made a basis for conviction without independent corroboration. Thirdly, the testimony of Muzaffar Ahmad (PW-7) did not advance the prosecution case because there was nothing on the record to establish that co-accused Mudassam-ur-Rehman was, in fact, running a clinic in Mohallah Rehmatabad, Hafizabad. Fourthly, wrist watch P.8 was not recovered from Appellant and the police had foisted it on him in collusion with the complainant party. Fifthly, medical evidence was of no avail to the prosecution as it was only confirmatory and could not be used to identify the culprits. Lastly, even the motive set up by the prosecution was not proved. The learned counsel prayed that this appeal be accepted and the Appellant may be acquitted of the charge.
8. The learned Deputy Prosecutor General vehemently opposed the aforementioned appeals. He argued that the prosecution had proved the charge against the Appellant beyond any shadow of doubt. Ghulam Abbas (PW-2) and Mehmood Ahmad (PW-3) proved that Faisal Raza was abducted by the Appellant and his co-accused Mudassam-ur-Rehman & Muhammad Irfan. Their testimony was corroborated by Muzaffar Ahmad (PW-7) and recovery of wrist watch P-8 from the Appellant and the extra-judicial confession of Mudassam-ur- Rehman. All the PWs were consistent on material points and the motive was also proved. He prayed that the appeal in hand may be dismissed.
9. In support of Crl. Revision No. 718/2013 the learned counsel for the Complainant/Revision Petitioner argued that the convict and his co-convicts had committed Qatl-e-Amd of the Complainant’s son Faisal Raza in a gruesome manner and then threw his dead body in a watercourse to screen their offence. The motive was very strong and was duly proved during the trial. He submitted that the prosecution had established its case to the hilt and there were no extenuating circumstances for which the Appellant could be given lesser punishment. He prayed that the sentence of the convict under Sections 364 and 201, PPC be enhanced to the maximum and compensation amount in all the three offences may be increased.
10. Arguments heard. Record perused.
11. Admittedly, it was a blind murder. On 18.8.2011, dead body of an unknown person was found in the watercourse near an oil factory in Batairy, District Hafizabad. One Mubarak Ali informed Police Station Saddar, Hafizabad, whereupon Muhammad Mansha/SI (PW-9) reached the site. He took the corpse into custody and then got it buried after completing legal formalities. On 30.8.2011, Complainant Irshad Muhammad (PW-1) had previously lodged FIR No. 815/2011 (Exh.PA/1) about the abduction of his son Faisal Raza at Police Station City Hafizabad. On receiving information about the burial of an unclaimed corpse by the police as aforesaid went to the Police Station Saddar Hafizabad along with Nadeem Abbas and Muhammad Akram where he saw the last worn clothes P.I to P.4 and photographs P.5/1-3 of the deceased and identified them to be of his son Faisal Raza. The prosecution relies on circumstantial evidence comprising of last seen evidence, medical evidence, recovery of incriminating articles P.6 and P.7, the extra-judicial confession of co-accused Mudassam-ur-Rehman and, finally, the motive to prove guilt of the Appellant.
12. The last seen evidence was furnished by Ghulam Abbas (PW-2) and Mehmood Ahmad (PW-3). The former deposed that on 16.8.2011 at about 2:00 p.m. he along with PW-Abbas (given up) was present near the WAPDA office situated in Bijli Mohallah, Hafizabad, when the Appellant along with his co-accused Mudassam-ur-Rehman and Muhammad Irfan and Faisal Raza deceased went past him in a white car. On the other hand, Mehmood Ahmad (PW-3), who was a relative of the Complainant, deposed that he was present in the Haveli of Complainant along with PWs Aamir and Yasin about the same time when Faisal Raza went out and boarded a white car in which three unknown persons were present and they drove towards the WAPDA office. The testimony of these witnesses does not inspire confidence for a number of reasons. First, they did not give any reason for their presence at their stated places on the relevant date and time. Ghulam Abbas worked in the grain market from 8:00 a.m. to 6/7:00 p.m. daily. Similarly, Mehmood Ahmad admitted in his cross-examination that there was no special occasion for him and PWs Aamir and Yasin to assemble in the Complainant’s Haveli in the middle of the day. Secondly, the witnesses neither stated the registration number nor the make of the white car in which Faisal Raza was being taken. Thirdly, during the course of investigation the alleged car was not recovered. Even the name of the owner of the car did not surface. Fourthly, although Ghulam Abbas deposed that the three persons in the car were not known to him, the prosecution is conspicuously silent on the question as to how he learnt about the names of the Appellant and his co-accused. Fifthly, FIR No. 815/2011 (Exh.PA/1) was registered on 18.8.2011 when the Complainant returned from abroad. There is no explanation for these witnesses, particularly Mehmood Ahmad, why they did not inform the Complainant that they had last seen the deceased with the Appellant and his co-accused. Last but not least, PWs Ghulam Abbas and Mehmood Ahmad both made material improvements in their previous statements that they got recorded with the police under Section 161, Cr.P.C. with which they were duly confronted. It is a settled proposition of law that a witness who improves his statement on material aspects of the case is untrustworthy. Reliance is placed on “Amir Zaman v. Mahboob and others” (1985 SCMR 685), “Akhtar Ali and others v. The State” (2008 SCMR 6), “Muhammad Saleem v. Muhammad Azan and another” (2011 SCMR 474) and “Sardar Bibi and another v. Munir Ahmed and others” (2017 SCMR 344).
13. In order to buttress the last seen evidence the prosecution produced Muzaffar Ahmad (PW-7) who testified that on 16.8.2011 at about 2:45 p.m. he along with PW-Mehmood Ahmad son of Abdul Rehman (given up) was passing by the clinic of co-accused Mudassam-ur-Rehman situated at Mohallah Rehmatabad when he saw him and his co-accused loading a sack in a white car. They looked perplexed and on his inquiry they told him that the sack had clinic waste and they were going to dispose it of. He added that the Appellant and his co-accused drove away with that sack which he subsequently learnt contained the corpse of Faisal Raza. The testimony of Muzaffar Ahmad too does not inspire confidence. To start with, the prosecution did not lead any evidence to prove that co-accused Mudassam-ur-Rehman ran any clinic in Mohallah Rehmatabad. Complainant Irshad Muhammad alleged that he was a tenant of one Tanveer but he was not examined at the trial and even the rent deed was not adduced. Further, Muzaffar Ahmad lived 3 to 4 kilometers from the alleged place and he did not justify his presence there at that hour of the day. More importantly, he did not explain what stopped him from informing the police or the Complainant immediately about it. The following excerpt from his cross-examination casts shadow on his credibility:
“The factum of loading packed sacks by the accused persons in the car was told by me to the Complainant on 12.9.2011 and I was produced before the IO on the same day i.e. 12.9.2011 by the Complainant. From 16.8.2011 till 11.9.2011, I did not tell the said fact to anybody. I did not furnish any explanation in my statement Ex.DC regarding making such statement with certain delay. It is correct that I did not mention any reason in my statement Ex.DC regarding my visit to Mohallah Rehmatabad on 16.8.2011. I have also not explained in my statement Ex.DC that how I came to know the names of accused persons on 16.8.2011. During the course of investigation, I have not been confronted with the accused. I only made statement before the IO but did not go with the IO on the alleged clinic during investigation.”
14. The prosecution seeks corroboration of its case from the recovery of wrist watch P-8 allegedly effected from the Appellant. Complainant Irshad Muhammad (PW-1) and Sajid Mehmood/SI (PW-12) testified about the said recovery. It is observed that wrist watch
P-8 was of common pattern and in the absence of receipt thereof cannot be connected with the deceased. Even otherwise, the provisions of Section 103, Cr.P.C. were not complied with and no independent witness from the public was associated with the recovery proceedings which make the entire exercise dubious. In the circumstances, it can hardly be used for any corroboration.
15. The medical evidence furnished by Dr. Basharat Rasool Ghuman (PW-10) does not advance the prosecution case either because it has failed to establish the identity of the culprits. It is well settled that medical evidence can only furnish details of the injuries received by a person, living or dead, and the kind of weapon used in the occurrence but it cannot raise an accusing finger towards anybody.
16. The prosecution claims that on 01-09-2011 co-accused Mudassam-ur-Rehman made an extra-judicial confession before Muhammad Anwar (PW-4) and Muhammad Arif (PW-5) and its seeks corroboration for its case against the Appellant from it. The said extra-judicial confession is tainted and even otherwise is inadmissible qua the Appellant.
17. Finally, the motive. Mudassam-ur-Rehman was the son of the Complainant’s sister-in-law and he had adopted him. The Complainant alleged that he wanted to grab his property after killing Faisal Raza. The motive did not relate to the Appellant and during the trial the prosecution did not lead any evidence to prove it. More importantly, Mudassam-ur-Rehman was not any of the legal heirs of the Complainant and was not entitled to inherit from him even if Faisal Raza was killed. Therefore, the prosecution version that he perpetrated his murder for the sake of property is fallacious.
18. It is by now well settled that in a case based on circumstantial evidence every piece of evidence should be so inter-connected that it proves a continuous chain and its one end should touch the dead body of the deceased and the other should clench the neck of the accused thereby excluding all the hypothesis of his innocence. In the instant case, the prosecution has failed to produce any tangible evidence to connect the Appellant with offence. As such, he is entitled to the benefit of doubt.
19. For what has been discussed above, the instant appeal is allowed. The impugned judgment is set aside and the Appellant is acquitted of the charge. He is in jail. He shall be released forthwith if not required to be detained in any other case. As a sequel, Crl. Revision No. 718/2013 stands dismissed. Since Habib-ur-Rehman Respondent No. 1 in Crl. Revision No. 718/2013 has been acquitted, there is no question of enhancement of his sentence.
(A.A.K.) Appeal allowed
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