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Petitioner: MUHAMMAD BASHIRs VS Respondent: THE STATE
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Sardar Muhammad Ashraf Khan, Abdul Majeed Malik Title: MUHAMMAD BASHIRs vs THE STATE Case No.: Criminal Appeal No, 26 and Criminal Revision 67 of 1983 Date of Judgment:1984-07-15 Reported As: 1985 P Cr. L J 391 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SARDAR MUHAMMAD ASHRAF KHAN, J.-- Muhammad Bashir, appellant has been convicted by the Sessions Judge Kotli vide his judgment dated 30-7-1983 for the offences under sections 364 and 302, A.P.C. And sentenced to ten years rigorous imprisonment and a fine of Rs,500 on the first count and to life imprisonment and to fine of Rs,500 on the second count. The appellant has further been directed to undergo two months' simple imprisonment on each count in case of default in payment of fine. ' The appellant has come up in appeal against the above convictions and sentences while the State has filed revision petition against the above judgment of the Sessions Judge for conversion of sentence of life imprisonment to one of death under section 302, A.P.C. This order will dispose of both the above appeal and the revision petition. ' The brief facts giving rise to the above appeal and revision petition are that on 18-6-1981, Qazi Muhammad Yusuf, complainant made a written report to the Station House Officer, Police Station Kotli to the effect that on 16-6-1981 at afternoon his three and half years old daughter named Shabana went along with her minor sisters and few other children for the purpose of grazing sheep near the houses of Malick Yusuf and Noor Muhammad, situated at the distance of 1000 to 1500 yards from his house and that at about sunset, only his two other daughters came back home unaccompanied by her. It was further alleged in the report that on inquiry by his son, Ilyas, his daughter named Dadoo told that she was coming after them. The report also contained the information that despite the search, missing daughter had not been found so far and that from the circumstances it appeared that she had been kidnapped by somebody with intention to murder her.
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' On receipt of the above report, a case under section 364, A.P.C. Was registered by the police. During the investigation, on 26-6-1981 the appellant and one Ali Dad, who were detailed by the police for the search of the missing girl. On the same morning informed the police that the garment of the missing child's hair and bones were lying in the forest known as 'Bangari' situated at the distance of one and half miles from the place of occurrence. On this information, the police party went on the spot and took into possession one blood-stained shirt, one Shalwar, one plastic Chappel of right foot, five plastic bangles, bunch of hairs and some bones of human body which were lying scattered there. The complainant, who was accompanying the police party, identified the above articles to be belonging her missing daughter. The bones discovered from the place were identified by the complainant to be of the dead body of his said daughter on the basis of left canine on the bone of the lower jaw which was overlapping anteriorly. The bones were sent by the Investigating Officer to the Medical Specialist Kotli for his examination and report who gave the opinion in his postmortem report that the bones were of the female human body of about four years of age. ' The appellant was arrested on 3-7-1981 by the police on whose instance, on 7-7-1981 one plastic Chappel of left foot, six steel bangles, one four-inch steel nail, one empty half plastic bag and a cot were recovered from an unattended house of Mian Sakhi Muhammad situated at village Athroian. The appellant again on 12-7-1981 led to the recovery of one blood-stained 'Perna' from his house which was taken into possession through recovery Memo. Exh.P.M. And on the next day three Chhatank of sulphioanamide powder was also recovered from the shop of the appellant at his instance. The 'Perna' and shirt discovered from the forest were found to be stained with human blood by the Serologist out of which 'perna' contained blood-stains of group 'B' while the group of blood on shirt was undeterminable due to insufficient material. After the completion of the investigation, the appellant was sent to the Court of Sessions Judge, Kotli for facing his trial for the offences under sections 364 and 302, A.P.C. For having kidnapped and murdered the deceased, Mst. Shabana. ' The prosecution in support of his case examined as many as 20 witnesses namely; Muhammad Yusuf, Muhammad Ilyas, Mst. Zeenat Bibi, Muhammad Naseem, Nasim Akhtar, Muhammad Sadiq, Dr.Asghar All Mian, Muhammad Saddiq Patwari, Muhammad Latif, Muhammad Maqsood, Tasweer Hussain, Badur-uz-Zaman, Muhammad Fazal, Major (Retd.) Iqbal Khan, Muhammad Ghafar, Iftikhar Khan, Tassadiq Hussain, A.S.I., Raja Abdul Aziz, Inspector and Sardar Aftab, Sub-Inspector of Police. ' The appellant both in his statements under sections 242 and 342, Cr.P.C. Denied the charges levelled against him and put forth the plea that he had been falsely implicated in the case by the complainant as he had refused to satisfy his demand that he (appellant) should give his house to him. No evidence was produced in defence. The learned Sessions Judge found the appellant guilty of the commission of the offences with which he was charged by the prosecution and convicted and sentenced him as stated above. ' We have heard the learned counsel for the appellant, Additional Advocate-General and the counsel for the complainant and have also gone through the record of the case. The learned counsel for the appellant first of all contended that the prosecution has failed to prove that the missing daughter of the complainant had in fact been murdered and as such no conviction can be recorded for the offence of murder. In this connection, it is contended that the bones alleged to have been found from the forest have not been proved to be of the dead body of the said missing girl. It is further contended by the learned counsel for the appellant that the circumstantial evidence led by the prosecution against the appellant does not at all give rise to any inference that the accused had kidnapped and murdered the missing daughter of the complainant. It is also argued by the learned counsel for the appellant that the extra-judicial confession of the accused cannot be relied upon for the purpose of convicting him as the evidence with regard to it is
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furnished by the close relatives of the complainant which even otherwise does not appear to be true being inconsistent with the human conduct. ' On the other hand, the learned counsel for the State has contended that the circumstantial evidence led in this case leads to the conclusion that it was none but the appellant who had committed the murder of the deceased after kidnapping her from a place where she had gone to graze her sheep along with her minor sisters and other female children of the locality. It is also contended by him that circumstantial evidence find further support from the extra-judicial confession made by the appellant to his brother-in-law, Monzoor Qureshi and overheard by Bader-uz-Zaman and Muhammad Ghafar P.Ws. Who happened to be the relatives of both the complainant and the appellant. In this case, there is no direct evidence in respect of commission of the offences by the appellant and only circumstantial evidence has been adduced by the prosecution against him which has been relied upon and used by the trial Court for convicting him. The circumstantial evidence consists of the following particulars:- (1) The discovery of some bones of the human dead body from the 'Bangari' Forest. (2) Discovery of five bangles, a plastic Chappel of one foot, shirt, Shalwar and bunch of hairs from the said 'Forest'. (3) The appellant was seen near the house of one Muhammad Zaman, situated in village Chowki Teenda, going upwards to the forest at about afternoon on the day of occurrence. (4) The shop of the appellant was found closed at about afternoon on the day of incident. (5) The recovery of 'chappel' of one foot and six steel bangles from the unattended house of one Mian Sakhi Muhammad situated at village Athroian at the instance of the appellant. (6) The recovery of one 'Perna' stained with human blood at the instance of the appellant from his house. (7) The recovery of Sulphamide Powder from the shop of the appellant at his instance. (8) The extra-judicial confession of the appellant to his brother-in-law, Manzoor Ahmad Qureshi, to the effect that he had picked up the deceased from the place where she was grazing sheep and after taking her to the house of Mian Sakhi Muhammad had murdered her by throttling. ' Now we proceed to examine and discuss the above pieces of circumstantial evidence one by one to see as to how far the same can be used against the appellant for the purpose of basing his conviction. ' As regards the discovery of some bones of the human body from the forest of 'Bangari' this does not in any way connect the appellant with the commission of offences with which he is charged. In the first place, there is no reliable proof that the bones found in the forest were of the dead body of the missing daughter of the complainant. The complainant and his wife have identified these bones to be of the dead body of their missing daughter solely on the basis that the left canine in the bone of the lower jaw was overlapping anteriorly which in other words means that they recognized the bones to be belonging to their missing daughter because the left canine in mandible was overlapping anteriorly which was also the case with the left canine of their said daughter. The above identification mark relied upon by the complainant and his wife for the identification of the dead body of their missing daughter cannot be held to be conclusive proof of their being so as the left canine overlapping anteriorly can also be of any child other than the daughter of the complainant. It cannot be said that only the daughter of the complainant had a canine anteriorly overlapping and no other child could have such a canine. Even otherwise, there is no other evidence except the evidence of the complainant and his wife that their missing daughter had a canine enteriorly overlapping. No such indentification mark is mentioned in the report which was lodged with the police by the complainant about the disappearance of his minor daughter and
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thus on the mere evidence of the interested witnesses to that effect it is not sufficient to hold that the complainant's daughter under discussion in fact had a canine anteriorly overlapping. For the above reasons, the death of the missing girl of the complainant is not proved with the result that the discovery of the bones from the forest does not provide an incriminating circumstance against the appellant so as to hold him responsible for murdering the daughter of the complainant after kidnapping her. ' Even if, it is assumed for the sake of argument that the bones discovered from the forest were that of the dead body of the daughter of the complainant, still their discovery cannot be used as an incriminating circumstance leading to the inference that it was the appellant who had kidnapped and murdered her. These bones were not recovered at the instance of the appellant and according to the prosecution case itself, these were first of all seen scattered in the forest by Muhammad Siddique P.W. While making a search for the missing girl. It was this witness who had called the appellant who was conducting a similar search on other side of the ravine and informed him about the discovery of the bones and other articles. In these circumstances, we fail to see how the discovery of these bones from a place in a forest accessible to every body can be used as a circumstance incriminating the appellant in the commission of offences of kidnapping and murder of the missing daughter of the complainant. Had the appellant led to recovery of these bones, then it could be said that he had the exclusive knowledge of the place from where they were recovered which fact might lead to inference that he had placed them there after murdering her but no such inference can be drawn for the reasons mentioned above. ' From the perusal of the judgment of the trial Court, it appears that the learned Sessions Judge had used the discovery of the bones under discussion and other articles from the forest against the appellant on the grounds that he had deputed Muhammad Siddique P.W. Towards the site from where they were found for the search of the missing girl and that he had also asked the said witness to make further search on the discovery of the shirt saying that more articles would be found. The above alleged conduct of the appellant, in our view, does not lead to the only inference that he had the knowledge that the bones and other articles were lying at the place from where they were discovered or that he had placed them there. Such a conduct of the appellant might have been innocent one without his having previous knowledge that the bones and other articles under discussion were lying there and cannot be said to be inconsistent with his innocence. Even otherwise, from the circumstances of the case, it appears to us that the above conduct and utterances have wrongly been attributed to the appellant by the said prosecution witness as the truthfulness of his evidence in this regard is highly doubtful. In his statement before the Investigation Officer recorded under section 161, Cr.P.C. This witness did not depose that the appellant had detailed him for the search of the missing child towards the place from where the bones and other articles were discovered or that the appellant had asked him to make further search saying that more articles belonging to the deceased would be discovered. These omissions which amount to the material contradictions make his statement before the Court which pertains to the conduct of the appellant under discussion highly doubtful and cannot be relied upon to draw any adverse inference against the appellant. The other witnesses who were accompanying Muhammad Siddique P.W. For the search of the girl could corroborate the above evidence of this witness, but they were not produced by the prosecution. For the above reasons, the discovery of the bones from the forest as a piece of circumstantial evidence against the appellant deserves to be discarded altogether from consideration. ' So far the discovery of bunch of hair, bangles, plastic Chappel of one foot, shirt and Shalwar from the forest is concerned, it also does not furnish any incriminating circumstance against the appellant for most of the reasons as stated above while discussing the discovery of bones from the said place. The evidence that the above articles belong to the missing daughter of the
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complainant is furnished only by the complainant and his wife and is uninterested witnesses. Apart] from their evidence, there is nothing on the record to show that garments and other articles found scattered in the forest were worn by the daughter of the complainant on the fateful day of her disappearance. In the F.I.R. It is not mentioned that these garments, Chappel and bangles were being worn by the missing girl on the day of incident, although in such like report the description of wearing apparel is usually given for the purpose of facilitating identifications of the missing person. The articles under discussion are of common use and unidentifiable. They were not got recovered at the instance of the appellant and as such their discovery from the open and accessible place cannot be used as circumstances pointing to the implication of the appellant in the commission of any offence. Moreover, the possibility of the police or complainant having manoeuvred their implantation there is not even ruled out. The shirt and Shalwar were found to have been turned inside outside which fact shows that it was done by someone before they were discovered. If these garments were worn by the missing girl on the day of incident then they would not have been found in a condition in which they were discovered. There appears no apparent reason for the appellant to have done so after murdering the girl and placing her dead body in the forest. ' The bones discovered from the forest were found to have been broken from the ends by the Doctor who examined them and according to him they appear to have been eaten by the animals. If the animals have eaten the flesh of the dead body then these garments would not have been found turned inside outside because in that case They would have been torn into pieces. For the reasons stated above, the discovery of these articles from the forest is not such a circumstance from which inference of the appellant being the murderer of the missing daughter of the complainant can be drawn. The next piece of circumstantial evidence which consists of recovery of one plastic Chappel and six steel bangles from the house of Mian Sakhi Muhammad at the instance of the appellant also in no way connect- the appellant with the commission of any crime. These articles were recovered from an unattended and abandoned house which is also situated near a thoroughfare. These articles are unidentifiable and of common use freely available in the open market and as such it is not possible to hold conclusively that these were being worn by the deceased on the day of occurrence. Especially, in view of the fact that there is no reliable and independent evidence to that effect except that of the parents of the missing girl. These articles were recovered on 13-7-1981 that is about 16 days after the arrest of the appellant. In the above-mentioned circumstances, the recovery of these articles is not of any significance and does not provide an incriminating circumstance against the appellant. ' The recovery of one 'Perna' alleged to be stained with human blood from the house of the appellant has also been relied upon by the trial Court as a circumstantial evidence, connecting him with the commission of the offences of kidnapping and murder but in our view this piece of evidence is also of no value to the prosecution so as to be used as a circumstance indicating appellant's implication in the said offences. In the first place its recovery from the house of the appellant at his instance appears to us to be very much doubtful. It is in the evidence of the witnesses of recovery of this article that the house of the appellant was found locked when the police took him there for the purpose of effecting its recovery; that there was complete darkness inside the room of the house when the appellant opened the lock of the door and police and the witnesses of recovery went inside it and that a lantern was lit by the policeman in the light of which search for 'Perna' was conducted by him alongwith the appellant during which it was found lying beyond a box and picked up by the appellant. The article recovered under the circumstances mentioned above cannot be said to have been recovered at the instance of the appellant. When the) police party and public men accompanying it, went inside the room of the house when there was darkness in it without being first searched out, the possibility of 'Perna' having been placed
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there either by the police or some other person accompanying it by taking advantage of such darkness is not ruled out. The recovery of 'Perna' under such circumstances from the house of the appellant cannot be used as an incriminating circumstance against him. This 'Perna' is also an article of common use and as such it cannot be held to be belonging to the appellant. Even otherwise, its recovery from the house of the appellant is not such a circumstance which may tend to show 'the connection of the appellant with the kidnapping and murder of the missing daughter of G the complainant'. The allegation of the prosecution that it was used for carrying away the dead body of the complainant's daughter to the place from where bones were discovered, is based on the fact that it was found stained with human blood at the time of its recovery. But in our view, the evidence of its being blood-stained at the relevant time is not above suspicion. The perusal of its recovery Memo. Exh.P.M. Would clearly show that the words {{URDU TEXT}}(blood-stained) finding place twice in it have been written with an ink quite different from one used in writing the remaining recovery Memo, and that too once above the line and second time at its end. ' The above fact leads to the conclusion that words 'blood stained' were included and added after the preparation and signing of the recovery memo, by its attesting witnesses. If the 'Perna' had in fact been found stained with blood at the time of its recovery then there is no reason, as to why the words 'blood stained' in its recovery memo. Would not have been written in the line and in the same ink with which the remaining recovery memo. Was written and also signed by its attesting witnesses. Once the fact of its being stained with blood at the time of its recovery becomes doubtful, its recovery from the house of the appellant loses all its significance as a piece of cricumstantial evidence giving rise to the inference about the appellant's implication in the commission of the offences with which he is charged. ' Even if, it is assumed for the sake of arguments that it was blood-stained at the time of its recovery from the house of the appellant still this fact does not help the prosecution in establishing that the same was used in carrying the dead body of the deceased after murdering her to the place from where some bones and other articles belonging to the deceased were discovered as the human blood found on it, was not proved to be belonging to the blood group of the deceased. It is even not proved that the group of human blood found on it was the same as that found on the shirt discovered from the forest and alleged to be worn by the deceased at the time of her kidnapping and murder. ' The existence of stains of human blood on the wearing apparel like 'perna' is not a conclusive proof of such stains being the blood of some victim of the crime, as it is a common knowledge that the garment of a person even sometimes become stained with his own blood having oozed out on account of some incidental cut with sharp-edged substance or even by scraching of a body. So, the recovery of the blood-stained 'Perna' from the house of the appellant does not per se go to prove that the same was stained with the blood of the deceased thereby leading to inference that it was the appellant who had kidnapped and later murdered her. ' The circumstantial evidence that the shop of the appellant was found closed at about afternoon on the day of occurrence also dues not give rise to the inference that the same was closed by the appellant because he had gone to abduct and murder the daughter of the complainant. There may be so many other reasons for closing the shop at the said time. Moreover, the fact of the appellant's shop being closed at afternoon on the day of incident is not satisfactorily and reliably proved. The solitary witness who has deposed to have found the shop of the appellant closed when he went there to get a medicine, for his headache is a close relative of the mother of the missing girl being her cousin. This witness was living in the house of the complainant in those days. He did not disclose this fact to anybody before his statement to the police which he made after the arrest of the appellant and that too not on his own but on being asked by the police to do so. How the
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police could know that he had found the shop of the appellant closed at a certain time or the fateful day when this witness had never told this fact to anybody remains a mystery to us. ' The learned Sessions Judge has also used as an incriminating circumstance against the appellant, his conduct in asking the daughter of his brother, Miss Saeeda, not to disclose to the Investigating Officer that she had heard somebody calling 'baji baji' twice from the place from where the daughter of the complainant had disappeared when she was going to record her statement in response to a summon by the said officer. There is no legal evidence on the record about this conduct of the appellant and the learned Sessions Judge has used the circumstance against the appellant on the basis of the evidence of Raja Abdul Aziz, Inspector, P.W. To the effect that during the investigation, the aforesaid niece of the appellant had made such a statement. This evidence of the above-named P.W. Is not admissible under law as it amounts to hearsayH evidence as well as consisting of a statement made to the Investigating Officer by a witness during the investigation under section 161, Cr.P.C.…
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