Full Judgment Text & Judicial Ruling

2018 P Cr. L J Note 140 [Lahore] Before Abdul Sami Khan, J EHSAN ULLAH and another---Appellants Versus The STATE and others---Respondents Criminal Appeal No. 1355 and Criminal Revision No. 814 of 2009, decided on 22nd December, 2017. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Charge against the accused was that he along with co-accused committed murder of nephew of the complainant---Motive behind the occurrence was illicit relation of the deceased with the sister of the accused---Record showed that in the FIR, the complainant had not expressed any suspicion on anybody, which indicated that it was a blind murder which remained un-witnessed---Said case was investigated by three Investigating Officers, who all found the story of prosecution to be false and prepared discharge report---Said discharge report was not agreed by the Judicial Magistrate and challan/report under S. 173, Cr.P.C. was submitted on 18.9.2006---Being dissatisfied with the investigation, the complainant instituted private complaint on 18.12.2006, after eight months and three days of registration of FIR and eight months and nine days after the occurrence---If the complainant was not satisfied with the outcome of all the three successive investigations, why he had taken such a long time to bring his stance through the present private complaint---Circumstances suggested that complainant had consumed time to cook up a false and frivolous story after due deliberation as well as consultation under legal advice at belated stage---Accused was not named in the FIR, but he had been introduced in the case for the first time along with his co-accused on 13.7.2006 after about two months and twenty-eight days of the registration of case through an application---No source of information had been disclosed by the complainant in the said application as to how he came to know about involvement of the accused in the murder of the nephew of complainant---Such application without source of knowledge had got no value in the eyes of law---Prosecution witnesses had deposed that the deceased was last seen by them in the company of co-accused persons, who were acquitted by the Trial Court, therefore, their evidence to the extent of accused was also not relevant---Witnesses who had shifted the dead-body of the deceased to the house from the place wherefrom the same was recovered had not named the appellant as accused---Statements of said witnesses were irrelevant about culpability of the accused---Sole statement of abetment adduced by witness was not against the accused and charge of abetment was levelled against acquitted co-accused persons---Nothing had been recovered from the accused during the course of three investigations---Deadbody of the deceased was admittedly recovered from the field of co-accused which place was not under exclusive possession of the accused---Evidence adduced by the prosecution witnesses with regard to recovery of deadbody was irrelevant to the extent of accused---Motive in the present case was jointly attributed to all the accused persons and not specifically to the accused---Admittedly, the witnesses, who had furnished evidence of last seen, shifting the dead body, conspiracy and extra-judicial confession were related to the complainant so they were interested and related witnesses and their testimony had not been supported or corroborated by any independent witness in the present case---Record transpired that on the same set of evidence, the Trial Court had acquitted as many as nine co-accused, so the same set of evidence could not be believed to the extent of the accused---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court. [Paras. 8, 9, 10 & 13 of the judgment] Naeem Akhtar v. The State 1996 SCMR 511 and Abid Ali alias Ali v. The State 2011 SCMR 161 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Extra-judicial confession--- Scope--- Prosecution had alleged that accused and his acquitted co-accused made extra-judicial confession before the prosecution witnesses---Prosecution had examined said witnesses to prove the extra-judicial confession made by the accused and his acquitted co-accused---Said witnesses had deposed before the Trial Court that both the accused made extra-judicial confession before them separately---Record showed that statements of said witnesses had not been recorded under S. 161, Cr.P.C. during all the three successive investigations conducted in the present case---Said fact showed that they had not associated themselves with the investigations and for the first time, they adduced evidence before the Trial Court---Worth and evidentiary value of their statement, in circumstances, was not convincing enough---Statements of said witnesses were an afterthought and brought at belated stage to strengthen the case of prosecution against the accused persons---Father of the accused was acquitted of the charge on the same evidence by the Trial Court---Said accused was alleged to have confessed his guilt before the witnesses and appeal against his acquittal had been dismissed---Evidence about the culpability of the accused could not be believed in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court. [Para. 12 of the judgment] (c) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Medical evidence had only to describe the physical position of deadbody, but could not point out any clue or connection with the commission of murder by the accused---Medical evidence was only used for confirmation of ocular evidence with regard to seats of injuries, time of occurrence and weapon of offence---Such evidence itself did not constitute any corroboration about the identity of an accused to prove his culpability. [Para. 14 of the judgment] Muhammad Sharif and another v. The State 1997 SCMR 866 rel. (d) Criminal trial--- ----Benefit of doubt---Principle---One circumstance creating doubt in the prosecution case was enough to acquit the accused. [Para. 15 of the judgment] 2009 SCMR 230 rel. Syed Ijaz Qutab for Appellants with the Appellants in person on bail. Mrs. Tahira Parveen, Deputy District Public Prosecutor for the State. Mian Qamar-uz-Zaman Mahar for the Complainant. Date of hearing: 22nd December, 2017. JUDGMENT ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. Ehsan Ullah appellant has challenged the vires of the judgment dated 15.07.2009 handed down by the learned Sessions Judge, Bhakkar wherein the appellant was convicted under section 302(b), P.P.C. and he was sentenced to undergo imprisonment for life. He was also ordered to pay compensation under section 544-A, Cr.P.C. to the legal heirs of Kalim Ullah deceased or in default of payment of compensation the appellant was ordered to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. is extended in favour of the appellant. The appellant has challenged his conviction and sentence before this Court through the instant appeal whereas the complainant has also filed Criminal Revision No. 814 of 2009 for enhancing the life imprisonment of the appellant to capital sentence of death. I propose to decide both these matters together through the instant consolidated judgment. 2. According to the prosecution story set forth in the private complaint instituted by Shah Rasool complainant Kalim Ullah was his real nephew (Bhanja). One Aman Ullah had suspicion that Kalim Ullah had illicit relations with the daughter of Aman Ullah namely Mst. Zulaikhan Bibi. On 06.04.2006 at about 06.00 p.m. Muhammad Iqbal alias Balli and Muhammad Sajid, brothers of Mst. Zulaikhan Bibi contacted Ehsan Ullah and Nasrullah, brothers of Kalim Ullah deceased so as to restrain the latter to meet their sister Mst. Zulaikhan Bibi whereat they had also issued threats of dire consequences. It has been mentioned in the private complaint that on 09.04.2006 at about 10.00 a.m. Shakir Ali and Allah Ditta were taking tea in hotel of one Mushtaq Ahmad situated at Notak Adda, Fazal-ur-Rehman and Aman Ullah accused were also sitting inside the hotel. Fazal-ur-Rehman accused was instigating Aman Ullah to commit murder of Kalim Ullah because despite of their discouraging behaviour he continued his affair with Mst. Zulaikhan Bibi for which their family honour in the locality had seriously damaged. That fact has been brought to the notice of the complainant by Allah Ditta and Shakir Ali upon which he after consultation with the family members of Kalim Ullah advised the latter to leave Notak and on 09.04.2006 at evening time Kalim Ullah left his house for Karachi to do labour. On the same night at about 12.00 midnight Asghar Ali and Muhammad Javed were standing at the Hotel of Abdul Manan where they saw Kalim Ullah along with Sana Ullah as well as Muhammad Akram proceeding towards Western side. On 14.04.2006 Muhammad Aslam and Hakim Ali came out from the Dera after saying Fajjar prayer and they witnessed that Muhammad Iqbal, Mushtaq Ahmad and Muhammad Sajid were taking waste (roori) on a cart towards their land and the cart was stinking very badly. On 15.04.2006 he along with Shah Sawar and Hakim Ali at about 4.00 p.m. went to take earth by a tractor trolley from the land of Aman Ullah and during digging they saw some part of human body. During further digging the earth around the deadbody they ultimately found deadbody of Kalim Ullah who had left for Karachi on 09.04.2006. On 15.04.2006 the complainant reported the matter to the police but the police was in league with the accused party and refused to record the statement of the complainant properly. It has been mentioned in the private complaint that the complainant had informed the police in detail about motive, abetment and last seen evidence of the PWs but the police had taken signatures of the complainant on blank paper and later on after distorting the real story registered the FIR. On 08.07.2006 after Maghrib prayer Muhammad Ramzan and Liaquat Ali were present in former's house where Aman Ullah and Ehsan Ullah accused persons came and separately confessed their guilt before them. At that time Aman Ullah accused went out of house and Ehsan Ullah disclosed before Muhammad Ramzan and Liaqat Ali that on 09.04.2006 at about 12.00 midnight they brought Kalim Ullah deceased with the help of Sana Ullah and Muhammad Akram accused in their home on the pretext that they were going to marry Mst. Zulaikhan Bibi with Kalim Ullah and when Kalim Ullah reached in their home Imdad Ullah, Sana Ullah, Muhammad Akram and Aman Ullah caught hold of Kalim Ullah and Ehsan Ullah inflicted blow of iron rod on the backside of head of Kalim Ullah who sustained injury and died at the spot. They covered deadbody of Kalim Ullah with roori placed in their house and thereafter on 14.04.2006 Muhammad Iqbal alias Balli, Mushtaq and Muhammad Sajid shifted the deadbody of the deceased on a cart from their house by concealing the same in roori and buried him into a pit in their land. At the time of shifting the deadbody on cart Muhammad Aslam and Hakim Ali PWs have seen them. Both these accused also confessed that they have also approached Shah Rasool to patch up matter and also gave bribe to police to get favour. Thereafter Ehsan Ullah went outside the house thereafter Aman Ullah came and confessed that they have committed the murder of deceased due to revenge of their insult inasmuch as he has also reiterated the story narrated before the witnesses by Ehsan Ullah. On next day he produced Liaqat Ali and Muhammad Ramzan PWs before Mumtaz Ali, SI and Rustam Ali, Inspector who assured them, that their statements would be got recorded. Thereafter the police got conducted post-mortem examination of deadbody of Kalim Ullah and also prepared site-plan. During investigation of this case the complainant has also produced a cassette wherein voice of Sana Ullah has been recorded, who issued threats to Kalim Ullah during his life time for carrying on illicit liaison with Mst. Zulaikhan Bibi which cassette was duly produced to the police. The police was in league with the accused party so after finding accused to be innocent a discharge report was prepared but the learned Area Magistrate did not agree with the discharge report and consequently report under section 173, Cr.P.C. (challan) was submitted before the learned trial court. The motive stated in the private complaint was illicit relations of Kalim Ullah deceased with Mst. Zulaikhan Bibi. After recording cursory statements Mushtaq Ahmad, Ehsan Ullah, Imdad Ullah, Atta Ullah, Sajid Ullah, Sana Ullah, Muhammad Akram, Naik Muhammad and Fazal-ur-Rehman accused were summoned to face trial by the learned trial court. Charge was framed under sections 302/201/ 109/148/149, P.P.C. to which the accused persons claimed not guilty. 3. The prosecution in order to prove its case against the appellant examined as many as fifteen prosecution witnesses before the learned trial court whereas Mumtaz Ali, SI appeared as (CW 1) and Muhammad Rustam, Inspector appeared as (CW2). The evidence of extra-judicial confession has been furnished in this case by Liaquat Ali (PW13) and Muhammad Ramzan (PW14) whereas evidence of last-seen has been furnished by Muhammad Javed (PW6) and Muhammad Asghar (PW7) whereas evidence with regard to concealing deadbody was furnished by Muhammad Aslam (PW10) and Kahim Ali (PW11). The complainant himself has appeared as (PW15) and he deposed the whole prosecution story which the witnesses have told him. Shakir Ali appeared as PW12 and told about conspiracy hatched by Fazal-ur-Rehman to commit the murder of deceased. The medical evidence in this case was furnished by Dr. Abdul Razzaq Ghouri (PW9) who had conducted post-mortem examination on the deadbody of deceased Kalim Ullah. Mumtaz Ali, SI and Muhammad Rustam, Inspector (CW1) and (CW2) respectively have conducted investigation in this case and deposed about various steps taken by them during investigation of this case. Remaining evidence produced by the prosecution witnesses is more or less formal in nature. 4. In his statement recorded under section 342, Cr.P.C. the appellant had controverted the allegations levelled against him by the prosecution and he had also professed his innocence. He has neither opted to appear before the learned trial court to adduce evidence under section 340(2), Cr.P.C. on oath nor has opted to produce defence evidence to prove his innocence. 5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above whereas the learned trial court has acquitted co-accused of the appellant namely Mushtaq Ahmad, Imdad Ullah, Atta Ullah, Sajid Ullah, Sana Ullah, Muhammad Akram, Naik Muhammad and Fazal-ur-Rehman. Hence, this appeal before this Court. 6. Learned counsel for the appellant submits that the prosecution has miserably failed to prove the case against the appellant beyond any reasonable shadow of doubt. Learned Deputy District Public Prosecutor assisted by learned counsel for the complainant submits that the prosecution has proved the guilt of the appellant to the hilt. Learned counsel for the complainant maintains that the sentence of life imprisonment awarded to the appellant may be enhanced to capital sentence of death. 7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance. 8. According to the prosecution story the occurrence in this case has taken place on 09.04.2006 at about 12.00 midnight whereas the matter was reported to the police by Shah Rasool complainant on 15.04.2006 at about 5.30 p.m. and on the same day FIR in this case has been lodged after one hour at about 6.30 pm. In the FIR the complainant has not expressed any suspicion on anybody meaning thereby that it was a blind murder which remained unwitnessed. After registration of criminal case the case was investigated by three investigating officers who all found the story of prosecution to be false and prepared discharge report which was not agreed to by the learned Area Magistrate and challan/report under section 173, Cr.P.C. was submitted on 18.09.2006. Being dissatisfied with the investigation the complainant instituted the instant private complaint on 18.12.2006, i.e. after 8 months and 3 days of registration of FIR and 8 months and 9 days after taking place of occurrence. I may observe here that it is not understandable that if the complainant was not satisfied with the outcome of all the three successive investigations then why he has not instituted the instant private complaint immediate after the police have submitted discharge report before the learned Area Magistrate and he has taken such a long time to bring his stance through the instant private complaint. The only answer of this peculiar circumstance is that he has consumed time to cook up a false and frivolous story after due deliberations as well as consultations under legal advice at belated stage. 9. The appellant is not named in the FIR which has initially been registered simply under sections 302, 201, P.P.C. at a time when the deadbody of Kalim Ullah deceased was found from the field of Aman Ullah co-accused after six days of the alleged occurrence, i.e. on 15.04.2006. The appellant has been introduced in this case for the first time along with his co-accused on 13.07.2006 after about two months and twenty-eight days of registration of case through an application moved by the compliant to the police. Even in that application moved to the District Police Officer no source of information has been disclosed by the complainant as to how he came to know about involvement of the appellant in the murder of his nephew. Law is quite settled on the point that such an application without source has got no value in the eyes of law. Reliance can be placed on the cases of Naeem Akhtar v. The State (1996 SCMR 511) and Abid Ali alias Ali v. The State (2011 SCMR 161). 10. From the evidence of the prosecution available on record, it is clear that the case of the prosecution hinges upon extra-judicial confession, last seen evidence, evidence with regard to shifting the deadbody to the field of Aman Ullah co-accused, recovery of deadbody, evidence of conspiracy and medical evidence. Before discussing the evidence adduced by the prosecution witnesses I would like to point out here that the witnesses of last-seen evidence, i.e. Muhammad Javed (PW6) and Muhammad Asghar (PW7) have not named the appellant rather both of them have deposed that the deceased was lastly seen by them in the company of Sana Ullah and Muhammad Akram co-accused who both were acquitted by the learned trial court, therefore, their evidence to the extent of appellant is not relevant. Similarly, Muhammad Aslam (PW10) and Shakir Ali (PW12) also not named the appellant as the accused who shifted the deadbody of the deceased from the house to the place wherefrom the same was recovered rather they have deposed that Muhammad Iqbal, Mushtaq Ahmad and Muhammad Sajid were taking roori on a bullock cart towards the land of Aman Ullah, therefore, their statements are also irrelevant qua culpability of the appellant. Likewise, sole statement of abetment adduced by Shakir Ali (PW12) is also not against the appellant rather charge of abetment was levelled against acquitted co-accused namely Fazal-ur-Rehman and Aman Ullah, therefore, the evidence adduced by him was discarded by the learned trial court and the same has no relevancy to the extent of the appellant. I would also like to point out here that during course of three investigations nothing has been recovered from the appellant and the deadbody was admittedly recovered from the field of Aman Ullah co-accused which place was also not under exclusive possession of the appellant, therefore, evidence adduced by the prosecution witnesses with regard to recovery of deadbody was also irrelevant to the extent of appellant. Now the only evidence against the appellant remained is in the shape of extra judicial confession and medical evidence. 11. Now I shall first discuss the extra-judicial confession allegedly made by the appellant and his acquitted co-accused namely Aman Ullah before the prosecution witnesses. The prosecution has examined Liaquat Ali (PW13) and Muhammad Ramzan (PW14) to prove the extra-judicial confession who deposed before the learned trial court that both the accused made extra-judicial confession before them separately. They during their deposition before the learned trial court they have specifically attributed roles to every accused and they have also stated about motive part of the occurrence yet the fact remains that they themselves have not seen the occurrence and their deposition is based, upon the fact which allegedly Ehsan Ullah and Aman Ullah brought to their notice through their alleged extra judicial confession. They have categorically stated that Kalim Ullah deceased was called by the appellant party at their home on the pretext that the deceased would be married with Mst. Zulaikhan Bibi but when the deceased reached their home Sana Ullah, Imdad Ullah, Aman Ullah and Akram caught hold of Kalim Ullah and the appellant inflicted blow with iron rod hitting Kalim Ullah on back side of his head due to which he died at the spot. Meaning thereby that the roles were attributed to the appellant and his acquitted co-accused for the first time by these two witnesses before the learned trial court because Shah Rasool, complainant (PW15) made statement on the information supplied by these two witnesses, he himself is nowhere mentioned in the whole story carved by the prosecution against the appellant and his acquitted co-accused. According to them when the appellant and his co-accused Aman Ullah have confessed their guilt they were empty-handed and there is no explanation that why they have not apprehended the appellant and his acquitted co-accused so as to produce them either before the complainant or before the police. It is significant to point out here that Liaquat Ali (PW13) and Muhammad Ramzan (PW14) have not got recorded their statements under section 161, Cr.P.C. during all the three successive investigations conducted in this case which fact clearly shows that they have not associated themselves with the investigations and for the first time they adduced evidence before the learned trial court, therefore, the worth and evidentiary value of their statements is not convincing enough to persuade this Court to be considered it as a strong circle required in chain of circumstantial evidence. I am confident in my mind that their statements are result of an afterthought and that too have been brought at belated stage to strengthen the case of prosecution against the appellant and his acquitted co-accused. Even otherwise on the same evidence adduced by these two witnesses father of the appellant namely Aman Ullah was acquitted of the charge by the learned trial court who alleged to have confessed his guilt before them and appeal against his acquittal has also been dismissed by this Court, therefore, their evidence qua the culpability of the appellant cannot be believed upon. An overwhelming analysis of the evidence with regard to extra-judicial confession gives an implied impression to this Court that the prosecution has manufactured extra-judicial confession in this case to strengthen the case against the appellant under legal advice in this regard. Thus, the evidence of extra- judicial confession produced by the prosecution is disbelieved. 12. The medical evidence has been furnished in this case by Dr. Abdul Razzaq Ghouri, Medical Officer, District Headquarter Hospital, Bhakkar (PW9). According to the prosecution story set forth in the private complaint the deceased after receiving the solitary iron-rod injury on the back of his…

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