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Petitioner: MUHAMMAD TANVEER VS Respondent: StateHonorable Justice Sohail NasirPrince Rehan Iftikhar Sheikh
2023 P Cr. L J Note 74 [Lahore (Multan Bench)] Before Sohail Nasir, J MUHAMMAD TANVEER---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 1129-J of 2019, heard on 29th November, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, causing disappearance of evidence of offence, abetment, common intention---Appreciation of evidence---Disclosure before police---Scope---Accused were charged for committing murder of the deceased whose dead body was brought out from the canal---Prosecution's case was that accused during investigation made disclosure and led the police party to the place from where dead body was recovered---Crime scene was not a secret before the accused led the police party there---Under Art. 40 of the Qanun-e-Shahadat, 1984, only such disclosure during custody made by accused was relevant which amounting to distinct fact that means a fact that was not in the knowledge earlier to the day when it was disclosed by the culprit---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. (b) Criminal trial--- ----Extra judicial confession---Scope---Extra-judicial confession was a weakest type of evidence, unless there was a strong corroboration to it. (c) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109 & 34---Qatl-i-amd, causing disappearance of evidence of offence, abetment, common intention---Appreciation of evidence---Unnatural conduct of witnesses---Scope---Accused were charged for committing murder of the deceased whose dead body was brought out from the canal---Record showed that three persons including father of deceased in the day time were sitting in their house---Said three persons appeared to be young---Accused along with another person came to the house of father of deceased and disclosed a fact that was breaking news for them as at that point of time they came to know that accused was the culprit---Despite that fact they were not able to apprehend the accused who was empty handed and they allowed him and his companion to go free---Said conduct of father of deceased and his nephew had been found highly unnatural and a strong barrier for them to be crossed, therefore, on that ground alone they could not be believed---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109 & 34---Qatl-i-amd, causing disappearance of evidence of offence, abetment, common intention---Appreciation of evidence---Conflict in the statements of witnesses---Scope---Accused were charged for committing murder of the deceased whose dead body was brought out from the canal---Record showed that the father of deceased and his nephew were in conflict on material facts of the case---Father of deceased in cross-examination maintained that they tried to catch hold of the accused but he was succeeded to escape---Nephew of father of deceased responded that they did not try to catch hold of the accused---Again father of deceased in cross-examination replied that he immediately told that fact to all his neighbours whereas other witness responded that they did not tell that fact to any area 'Nazim', 'Lumberdar or people of the locality---Father of the deceased admitted that prior to the occurrence there had been a quarrel between him and the accused on the dispute of electricity bill---If it was so, there was no reason whatsoever for accused to come to father of deceased for pardon and to make confession about the guilt---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109 & 34---Qatl-i-amd, causing disappearance of evidence of offence, abetment, common intention---Appreciation of evidence---Delay in recording the statement of witnesses before the police---Scope---Accused were charged for committing murder of the deceased whose dead body was brought out from the canal---Prosecution witness stated that he had seen the accused and deceased together near park---Other witness maintained that he had seen the accused and deceased together near grid station---Another witness maintained that when he was present at the bridge of canal, he had seen the deceased and accused together---Statements of said witnesses were of no worth at all for an important reason of their delayed appearance before the Investigating Officer---Although it was not in their statements before the court but on perusal of their statements, recorded under S. 161, Cr.P.C., it had been established that two witnesses first time opened their mouth after about 27 days---Similarly, other witness came before the police first time after three days and got his statement recorded---Witness, who was the real maternal uncle of the deceased, got the knowledge of murder on the same day when father of deceased came to know about the same---Said witness was supposed to disclose that fact to father of deceased but he did not do so---Had he told that fact to father of deceased, he was supposed to tell it to the Investigating Officer---Similarly another had received the information of that occurrence who also went to hospital to receive the dead body but as admitted by him he did not bother to disclose to father of deceased that he had seen the accused and deceased together---Said delay was fatal to the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. (f) Criminal Procedure Code (V of 1898)--- ----S. 161---Delay in recording the statements of witnesses before the police---Effect---Important witness if appeared before the police with delay without any explanation, his credibility was liable to be thrown out from consideration. (g) Penal Code (XLV of 1860)--- ----Ss. 302, 201, 109 & 34---Qatl-i-amd, causing disappearance of evidence of offence, abetment, common intention---Appreciation of evidence---Recovery of handkerchief---Reliance---Scope---Accused were charged for committing murder of the deceased whose dead body was brought out from the canal---Handkerchief was recovered but it had no evidentiary value for the reason that it was not sent for DNA so as to prove that the same was used to press the neck of deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. Prince Rehan Iftikhar Sheikh for Appellant. Adnan latif Sheikh, Deputy Prosecutor General for the State. Complainant in person. Date of hearing: 29th November, 2021. JUDGMENT SOHAIL NASIR, J.---Muhammad Tanveer (appellant) along with Muhammad Aslam and Muhammad Akbar had faced trial in First Information Report (FIR) No. 452 (PA) recorded on 18.07.2018 under sections 302/201/109/34, P.P.C. at Police Station Basti Malook district Multan on the complaint of Muhammad Rafiq ASI (PW-4) for the allegations of committing the 'Qatl-i-Amd' (murder) of Ahmad Waqas. On conclusion of trial vide judgment dated 27.07.2019 passed by the learned Additional Sessions Judge Multan, appellant was convicted and sentenced as under: i. Under section 302(b), P.P.C. imprisonment for life. He was ordered to pay Rs.300000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. In default of payment of compensation he was ordered to further undergo six months' SI. ii. Under section 201, P.P.C. to undergo 3 years' R.I and fine of Rs.50,000/-. In default of payment of fine he was ordered to further undergo 2 months' S.I. 2. It was directed that sentences of appellant shall run concurrently and he will be entitled for the benefit under section 382-B, Cr.P.C. By way of same judgment, Muhammad Aslam and Muhammad Akbar were acquitted. 3. Being dissatisfied from his conviction appellant has approached this Court through the instant criminal appeal. 4. In brief facts of the case are that on 18.07.2018 upon receipt of information of this occurrence, Muhammad Rafiq ASI (PW-4) arrived at Pull Sadiq Wali Masjid Mouza Jungle Faizpur where the dead body of a boy aged about 14/15 years was lying who was brought out from the canal. There were signs of oozing blood from nose of dead body besides violence mark on his neck. 5. Muhammad Rafiq ASI drafted the complaint (PF) and sent it to police station on the abs is of which FIR was recorded by Sher Shah Head Constable/HC (PW-1). 6. During investigation it transpired that dead body was of Ahmad Waqas who was son of Muhammad Akbar (PW-6). The evidence of last seen and extra judicial confession was collected by the Investigating Officers. Muhammad Tanveer (appellant) was arrested on 08.08.2018 whereas Muhammad Aslam and Muhammad Akbar were arrested on 11.11.2018. On conclusion of investigation the report under section 173, Cr.P.C. (Ghallan) was submitted in court. 7. A charge under sections 302/201/109/34, P.P.C. was framed against appellant and his co-accused on 11.04.2019 for which they pleaded not guilty and demanded their trial. 8. In support of its case prosecution had produced the following witnesses: - PW-1 Sher Shah HC being Moharrar recorded formal FIR, kept case property in Malkhana and transmitted to the office of PFSA. PW-2 lrfan Hayat draftsman prepared the scaled site plans. PW-3 Jameel Ahmad Constable was accompanying Muhammad Rafique ASI when he arrived at crime scene. PW-4 Muhammad Rafiq S.I was accompanying Mumtaz Hussain Constable and Muhammad Jameel Constable when he arrive d at crime scene? PW-5 Muhammad Arshad Constable got conducted the post mortem examination of deceased. PW-6 Muhammad Akbar who is the father of deceased maintained about confession by Tanvir Aslam and Muhammad Aslam. PW-7 Muhammad Shahzad is also a witness of extra judicial confession. PW-8 Muhammad Noman Ishaq had collected Buccal swabs of deceased for DNA. PW-9 Dr. Muhammad Azeem Riaz conducted the post-mortem examination of deceased. PW-10 Asif Shahzad S.I is the first Investigating Officer who also arrested the appellant. PW-11 Muhammad Iiaz is a witness who had seen the appellant and deceased together. PW-12 Khalil Ahntad is also a witness to last seen. PW-13 Muhammad Hussain too is a witness to last seen. PW-14 Taria Hassan S.I conducted the part investigation. PW-15 Akhtar Islam Inspector had arrested Muhammad Aslam and Muhammad Akbar and made final investigation. 9. Mumtaz Hussain Constable, Muhammad Asghar and Zafar Ahmad ASI were given up by the learned Assistant District Public Prosecutor whereafter prosecution's evidence was closed. 10. In his examination made under section 342, Cr.P.C, version of appellant was as under: - "Father of deceased and PWs falsely involved me and my father as well as my uncle due to previous enmity and family grudge that the engagement of sister of deceased with my brother namely Jameel was done. Prior to the occurrence, my father Muhammad Aslam refused to get marriage of his son with sister of deceased due to that grudge Muhammad Akbar father of the deceased involved me and my father and uncle in this case falsely. Father of complainant is brother in law of my father/co-accused and other Pif's are close relatives. I am innocent in this case." 11. Appellant opted not to produce defence evidence or to appear in terms of section 340(2), Cr.P.C. 12. Learned counsel for appellant contended that in case of circumstantial evidence the prosecution cannot deviate from the settled principles to establish each piece of evidence independently and then to present it like a chain; every hook of the chain must be connected with each other; breakage of link of any of the hooks shall destroy the entire chain; evidence of extra judicial confession and last scenes relied by prosecution in this case is weak, infirm, suffering from inherent defects, infirmities and self-contradictions, so it cannot be relied upon even in the case of minor offence but what to say about a case of capital charge. Acquittal of Muhammad Aslam who was also present with appellant at the time of confession is strong reason seeking acquittal of appellant from this case. Learned counsel for appellant finally added that as prosecution has badly failed to prove its case beyond reasonable doubt, therefore, appellant deserves clearance from this case. 13. On the other hand, learned counsel for complainant and learned Deputy Prosecutor General jointly argued that a young boy of 14/15 years of the age lost his life and for that appellant is responsible; the evidence of last seen, extra judicial confession, pointation of crime scene and recovery of a piece of cloth used for strangulation are so connected with each other that chain is complete without any flaw and breakage, therefore appellant, has been rightly convicted by the learned trial court; no enmity whatsoever exists between appellant and the private witnesses so question of his false involvement does not arise; the witnesses were firm in their depositions and defence was completely failed to shatter-their confidence and credibility despite reasonable cross-examination. Both finally contended that appellant has been convicted on the basis of a well-reasoned judgment and there is no occasion for this Court to reverse the same. 14. HEARD.
15. Prosecution's case is that on 16.08.2018 appellant during investigation made disclosure and led the police party to the place from where dead body was recovered. This piece of evidence requires no detail discussion for the simple reason that crime scene was not a secret before the appellant led the police party there. Under Article 40 of the Qanun-e -Shahadat Order, 1984 only that disclosure during custody made by accused is relevant which amounts to distinct fact that means a fact that was not in the knowledge earlier to the day when it was disclosed by the culprit. 16. The next piece of evidence relied by prosecution is extra judicial confession that has always been considered as weakest type of evidence unless there is a strong corroboration to it. 17. Muhammad Akbar the father of deceased while appearing as PW-6 maintained that on 04.08.2018 at about 10:00 a.m. he along with his brother Muhammad Asghar and nephew Muhammad Shahzad were present in his house where Tanvir Aslam (appellant) and Muhammad Aslam came; they were worried; appellant asked for pardon who maintained that on 17.07.2018 at 06:00 p.m. he had taken Ahmad Waqas with him to an isolated place; they set on the bank of Canal; when it was dark he/appellant strangulated the throat of Ahmad Waqas with a handkerchief resulting into his/Ahmad Waqas death. Appellant further disclosed that he threw the dead body into the canal and since then he was restless. Same facts were asserted by Muhammad Shahzad (PW-7). 18. Three persons including Muhammad Akbar in the day time were sitting in their house. All they appeared to be young. Appellant along with Muhammad Aslam came to their house and disclosed a fact that was breaking news for them as at that point of time they came to know that appellant was the culprit. Despite this fact they were not able to apprehend the appellant who was empty handed and they allowed him and Muhammad Aslam to go free. This conduct of Muhammad Akbar and his nephew Muhammad Shahzad has been found highly unnatural and a strong barrier for them to be crossed, therefore, on this ground alone they cannot be believed. 19. Before the court they maintained that Muhammad Aslam was also with appellant but on confrontation from their earlier statements to the extent of Muhammad Aslam they were found under improvement. 20. Both the witnesses are in conflict on material facts of the case. Muhammad Akbar (PW-6) in cross-examination maintained that they tried to catch hold the appellant but he was succeeded to escape. On the other hand, Muhammad Shahzad (PW-7) responded that they did not try to catch hold the accused Tanvir. Again Muhammad Akbar in cross-examination replied that he immediately told this fact to all his neighborers whereas Muhammad Shahzad responded they did not tell this fact to any area Wazim `Lumberdar' or people of the locality. 21. Muhammad Akbar admitted that prior to the occurrence there had been a quarrel between him and the appellant on the dispute of electricity bill. If it was so, there was no reason whatsoever for appellant to come to Muhammad Akbar for pardon and to make confession about the guilt. 22. The evidence of extra judicial confession in above circumstances is disbelieved. 23. Now prosecution is left with the last seen evidence. According to Muhammad Ijaz (PW-11) on 17.07.2018 he had seen the appellant and deceased together near park. Khalil Ahmad (PW-12) maintained that he had seen the appellant and deceased together on 17.07.2018 at 06:00 p.m. near grid station. Muhammad Hussain (PW-13) maintained that on 17.07.2018 at about 06:30 p.m. when he was present at the bridge of Nobahar Canal at Vehari Chowk Multan, he had seen the deceased and appellant together. 24. Statements of all above witnesses are of no worth at all for an important reason of their delayed appearance before the Investigating Officer. Although it is not in their statements before the court but on perusal of their statement recorded under section 161, Cr.P.C. it has been established that Muhammad Ijaz (PW-11) and Muhammad Hussain (PW-13) first time opened their mouth on 14.08.2018 after about 27 days. Similarly, Khalil Ahmad (PW-12) came before the police first time after three days that was on 20.07.2018 and got his statement recorded. 25. It is settled principle of law that an important witness if appears before the police with delay without any explanation his credibility is liable to be thrown out from consideration. 26. Muhammad Ijaz was the real maternal uncle of the deceased which means that he got the knowledge of murder on the same day when Muhammad Akbar came to know about it. He was supposed to disclose this fact to Muhammad Akbar but he did not do so. Had he told this fact to Muhammad Akbar, he was supposed to tell it to the Investigating Officer. 27. Similarly Khalil Ahmad had received the information of this occurrence on 19.07.2018 who also went to Nishtar Hospital Multan to receive the dead body but as admitted by him he did not bother to disclose to Muhammad Akbar that he had seen the appellant and deceased together on 17.07.2018. 28. Finally coming to the recovery of handkerchief (P7) it has no evidentiary value for the reason that it was not sent for DNA so as to prove that the same was used to press the neck of deceased. 30(sic.) The above discussion takes me to final conclusion that prosecution has badly failed to prove its case beyond reasonable doubt, therefore, this criminal appeal is allowed. Impugned judgment is set aside and appellant, Muhammad Tanveer is acquitted from the case. He is in custody and he shall be released forthwith, if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial court. JK/M-248/L Appeal allowed.