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Petitioner: Akhtar Ali VS Respondent: The State and another
Court Name: Peshawar High Court Judge(s): Ishtiaq Ibrahim, Sahibzada Asadullah Title: Akhtar Ali vs The State and another Case No.: Cr. Appeal. No. 1192-P/2022 Date of Judgment:2023-05-18 Reported As: 2023 PHC 221 Result: Appeal Allowed
JUDGMENT
JUDGMENT SAHIBZADA ASADULLAH, J.- Through this single judgment we intend to decide the instant as well as connected Cr.A No.1199- P/2022, titled as "Jauhar Ali Vs the State and another", as both the appeals are the outcome of one & the same judgment. The instant as well connected criminal appeal is directed against the judgment dated 19.11.2022, passed by the court of Additional Sessions Judge-II/Judge Model Criminal Trial Court (MCTC), Charsadda, whereby the accused/appellants were convicted, for the charges leveled against them in case FIR No.58, dated 21.02.2019, u/s 302/201/34 PPC, PS Prang (Charsadda), the operative para of which is reproduced in the following manner: i. Both the accused are hereby convicted under section 302(a) PPC, punished with death as Qisas with the direction that both the convicts be hanged by the neck till they are dead Execution of the sentence shall be subject to the confirmation by the Hon'ble Peshawar High Court, Peshawar, under section 374 Cr.P.C. The convicts shall also pay fine to the tune of Rs.500,000/- (Five Lac rupees)/each. The amount of fine realized, shall be paid to the legal heirs of the deceased, as compensation under section 544-A Cr.P.C. In case of non-payment of fine, the convicts shall further undergo simple imprisonment for a term of One(ol) year. The amount of fine shall be recoverable as arrears of land revenue from the person and estate of convicts. ii. Both the accused are also convicted under section 201 PPC for a term of seven (07) years/each and fine of Rs.100,000/- (one lac rupees)/each and in case of non-payment of fine, the convicts shall further undergo simple imprisonment of six(06) months. iii. Benefits of section 382-B Cr.P.C is extended to both the accused, so convicted. Convict Jauhar All is on bail while convict Akhtar Ali is in custody, they both be taken into custody and
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are sent to jail alongwith conviction warrants to carry their sentence. iv. A reference u/s 374 Cr.P.C be submitted before the Hon'ble Peshawar High Court, Peshawar. Both the convicts are warned to file an appeal within (07) days." 2. Facts in brief, as per the FIR, are that on 21.02.2019, the local police during mobile gasht received information regarding a dead body lying on the spot wrapped in a plastic, which was later on, taken to the hospital, where the complainant namely Haleem Jan reported the matter to the local police to the effect that on 17.02.2019 his brother namely Muzamil aged about 24/25 years had left his house for Charsadda Bazaar for the purchase of household/grocery items but he did not return and his mobile phone was also not connected after 18.02.2019. Report of the complainant was reduced in the shape of murasila, on the basis of which instant case was registered against the unknown accused. Later on, complainant charged accused facing trial in his magisterial statement for the commission of the offence. 3. After registration of case, accused Jauhar Ali and Akhtar Ali, were arrested and after completion of necessary investigation, challan was put in Court. Accused have been summoned, on attendance, provision of section 265-C,Cr.P.C, complied with and copies of the statements etc. provided to the accused/appellants. Charge was framed against the accused/appellants, to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced & examined as many as 12-witnesses in support of their claim. After closure of prosecution evidence, statements of accused u/s 342 Cr.P.C, were recorded, however, neither they wished to be examined on oath nor desired to produce evidence in their defense. After a full dressed trial, the learned Trial Court awarded death penalty to the appellants, which is mentioned in the earlier part of this judgment, hence the instant appeal. 4. Heard & record gone through. 5. It was in fact a tragedy which shocked all related and unrelated. It was because of the brutal act of the murderers which turned the atmosphere gloomy, and the same prevailed for a good length of time. The incident remained subject of discussion for many days those have gone by and the days that are yet to pass. No human being can deny the brutality committed in killing the deceased, and the shocking manner in which the dead body was cut into pieces and thrown away, but this is yet to be ascertained as to who had his hand in the affair and that who was responsible for doing so. 6. The unfortunate deceased went missing on 17.02.2019, and his whereabouts could not be traced. It was on 21.02.2019, when the half portion of his body was found, by the local police, in the graveyard of village Prang, District Charsadda, which was shifted to the hospital and attempts were made to trace out the claimants and ultimately, the complainant appeared who owned the dead body, and reported the matter. The local police started investigation in the matter, collected the Call Data Record (CDR) in respect of the mobile in use of the deceased, and the others, who might have contacted the deceased in the intervening period. It was because of the investigation, the local police suspected the accused/appellant and as such notices u/s 160 & 175 Cr.P.C, were issued for his appearance, but he did not appear. It was on 27.02.2019, that the police came across the accused/appellant (Akhtar Ali), who was arrested, searched and from his personal possession his mobile as well as some cash amount was taken into possession. The appellant was arrested and from the place of his arrest he was shifted to the local police station, where further investigation was made. The record tells that on the very day he pointed various places to the investigating officer and also led the police party to the place from where the half portion of the body of the deceased was recovered and it was also on his pointation that the remaining half portion was recovered from village Zareen Abad. The appellant was produced before the Court of competent jurisdiction and his physical custody was requested, which was granted. The appellant was
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interrogated and it was on 01.03.2019, that he pointed the godown, where the deceased was killed, to the investigating officer. During spot inspection, the investigating officer scratched the wall of the godown and preserved the blood for its chemical analysis. On the same day, the appellant/Akhtar Ali led the police party to his house and from the kitchen of the house, an axe and dagger was taken into possession as the weapons used in commission of the offence. The accused/appellant on 01.02.2019, led the police party to the Hujra of one Abbas Khan and on his pointation a Q-Mobile was recovered which was declared as the belonging of the deceased. The matter does not end here; rather during investigation the co-accused/Jauhar Ali also surfaced and in that respect the statement of the appellant/Akhtar Ali was recorded u/s 161 Cr.P.C. After the co-accused surfaced, he was also arrested and investigated. During investigation, the accused/Jauhar Ali led the police party to village Zareen Abad and pointed out the place, from where half portion of the dead body of the deceased was recovered, on pointation of the appellant/Akhtar Ali. The appellant was produced before the Court of Judicial Magistrate on 03.03.2019, where he confessed his guilt and the learned Magistrate recorded his confessional statement. It is pertinent to mention that the blood stained earth, blood stained scratches collected from the wall and a piece of blood stained sack, was sent to the laboratory, and after grouping the same with that of the deceased, it matched. 7. On 05.03.2019, the legal heirs of the deceased i.e. his father and brother recorded their statements u/s 164 Cr.P.C, before the court of competent jurisdiction where the appellants were held responsible for killing of the deceased. It was on conclusion of the trial that both the appellants were held responsible, so convicted & sentenced vide the impugned judgment. 8. The learned Trial Court considered the available record and also took into consideration the statements of the witnesses, after getting satisfied, convicted the appellants. There is no denial to the fact that it was one of the most brutal act of killing and even we cannot deny the manner in which the dead body was torn to pieces and disposed of, but we are to see as to what evidence has been collected by the prosecution and what consistency was observed in the statements of the witnesses, as it is the record that must be the guiding factor and not the emotions, if the emotions overpower then the results would be drastic with every and every possibility of miscarriage of justice, which the courts of law cannot afford and which the jurisprudence on the subject would not permit. We are to see as to whether this was the appreciation of available record which led the learned Trial Court to decide the lis in that fashion or that those were the attending circumstances and the brutal manner of killing the deceased which overpowered the judicial mind and faculty of the court. We are not left with the choice to travel away and beyond the record, rather we are to go by the book and so we intend, for this particular purpose we deem it essential to scan through the record and to see the connectivity of events and its result, as the entire case hinges on the circumstantial evidence. As in case of circumstantial evidence, the prosecution is under the bounden duty to collect the reliable pieces, to place them together, to shape and design, artistically, which under all circumstances must produce an organic whole. We do admit that the manner in which the unfortunate deceased was killed and disposed of, finds no match, but we as a court of law must not be influenced from the manner in which the brutality was committed, but we must be positive in our approach to the evidence on file and the recorded statement. Reliance can be placed on "NAVEED ASGHAR and 2 others Versus the STATE" (PLD 2021 Supreme Court 600), which reads as follows:- "12. Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined. In cases like the present one that rest entirely on circumstantial evidence, it is of the utmost importance that the circumstances should be ascertained with minute care and caution, before any conclusion or inference adverse to the accused person is drawn. The process of inference and deduction involved in such cases is of a delicate and perplexing
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character, liable to numerous causes of fallacy. This danger points the need for great caution in accepting proof of the facts and circumstances, before they are held to be established for the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, can create a specious appearance, leading to fallacious inferences. Hence, it is necessary that only such circumstances should be accepted as the basis of inferences that are, on careful examination of the evidence, found to be well-established. A high quality of evidence is, therefore, required to prove the facts and circumstances from which the inference of the guilt of the accused person is to be drawn" 9. The questions for determination before this Court are as to whether the prosecution succeeded in connecting the appellants with the death of the deceased; as to whether the deceased went missing on 17.02.2019 and killed on 19.02.2019; as to whether the Call Data Record (CDR) taken into possession, led to the identity of the accused involved and the accused charged; as to whether the appellant/Akhtar Ali, was arrested on the day in the stated manner and at the time; as to whether the incident occurred in the godown of the co-accused/Jauhar Ali, where the dead body was cut into pieces and transported to different areas; as to whether the recoveries were effected in the mode and in the manner; and as to whether the remaining half portion of the body of the deceased was recovered on 27.02.2019 from a dry drain in village Zareen Abad; as to whether the mobile of the deceased was recovered on pointation of the appellant from the Hujra of one Abbas Khan; as to whether the confession was voluntary, true and free from influence; as to whether while recording the confessional statement the required formalities were adhered to; as to whether the exculpatory confessional statement of an accused can be formed the basis for conviction of his co-accused; and as to whether the sequence of events could convince that the killers were the appellants and not the others. 10. The record tells that the appellant went missing on 12.02.2019, till his dead body was found by the local police and the matter was reported by the complainant. Initially, nobody was charged for the death of the deceased but it was the investigating agency which probed into the matter, collected the Call Data Record (CDR) and ultimately, suspected one of the appellant to have contacted the deceased prior and on the date of the incident, as per prosecution, the mobile SIM of one of the appellant was used for communication. Though some recoveries were made in pursuance of the pointation of one of the appellant and also various places were pointed out, but the prosecution is to tell as to whether the recoveries were effected in the mode, manner and on pointation of the appellant and as to whether the legal requirements for the same were fulfilled. No doubt the dead body was recovered from a graveyard easily accessible to all, more particularly, people of the locality and the dead body was lying at a distance of 22-feet from the road duly decomposed. If we admit that the body was decomposed then there was every possibility that the same was thrown at the place from which the same was recovered and in that eventuality its existence must have been noticed at the earliest, as the same would give foul smell. On one hand the exact date of the killing of the deceased is unknown and on the other it is unknown as to what time and as to on what day the same was thrown, in the like circumstances the liability cannot be fixed on the shoulders of the appellant and the subsequent pointation, when the dead body was already recovered, would be of a little consequence as the place was neither hidden nor secret, but the same got publicity after the dead body was recovered. This pointation would have been valid, provided the dead body was lying concealed and the appellant would point out the same, but once the dead body was recovered by the police on its own, then the pointation, if any, would lose its efficacy and the same cannot be pressed into service to such an extent to hang the accused/appellant. It pinches that why such a visible place was selected for throwing the dead body, knowing the fact that by throwing the same, there was every possibility of to be seen and identified, hence the
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conduct displayed by the appellant/Akhtar Ali does not appeal to the judicial mind of this Court. As in the instant case one recovery was made by the police from a graveyard, whereas the second half of the body was shown recovered on pointation of the appellant/Akhtar Ali. In order to know as to whether it was the appellant/Akhtar Ali who threw the same in the dry drain, we deem it essential to go through the confessional statement of the appellant, where he disclosed that the remaining portion of the body was took away by the co-accused and that it was he who disposed of the same. If this portion of his statement is taken into consideration, it troubles us, that how this accused could know the place as the same was disposed of by the appellant/Jauhar Ali and that on his arrest, Jauhar Ali let the police party to the dry drain. This anomaly between the disposal of the dead body and its recovery could not be resolved, and the prosecution failed to convince that this piece of evidence was valid and can be pressed into service for deciding the fate of the appellants, more particularly, that of the appellant/Akhtar Ali. On one hand the appellant in his confessional statement disclosed that the same was thrown away by the co-accused and on the other the same was not recovered on pointation of the co-accused/Jauhar Ali. On this particular issue the prosecution went in reverse. Had the recovery was effected on pointation of the appellant/Jauhar Ali, then the same could be taken into consideration, but its recovery on pointation of the one, who did not throw the same at the place of recovery, would hardly hold him responsible and as such, the efforts of the prosecution failed to be materialized and this piece of evidence has lost its utility. 11. Another intriguing aspect of the case which needs our attention, is the statement/report of the complainant where he disclosed that the deceased left the house on 17.02.2019, to purchase grocery and that till 18.02.2019, his phone was ringing, but soon thereafter the same went off. If we admit for a while that the deceased went missing on 17.02.2019, and that he did not return back, coupled with the fact that his phone went off on, 18.02.2019, then this is for the prosecution to tell that where the deceased spent the intervening period i.e. from 17.02.2019 to 18.02.2019, as per confessional statement of the appellant, he was invited on 18th and killed on 19th, but the prosecution remained clueless and answerless to this most crucial part of the confessional statement of accused. The discrepancies erupted cannot be ignored as being a case of circumstantial evidence, much is needed to collect, much is needed to discover and thereafter when all are discovered, the same must be read fluently and considered collectively. When the intervening period was not explained and when the phone of the deceased went off on 18th, then how this Court would accept that the deceased was talked to on 18th by the appellant/Jauhar Ali, by using the phone of the appellant/Akhtar Ali. Neither the complainant on the very next day of missing the deceased reported the matter, nor efforts were made to trace out the mobile phone of the deceased and the phone to which he was lastly connected, so these discrepancies are also casting its shadow on the confessional statement of the appellant. 12. This is important to explore as to how police succeeded in tracing the appellants, more particularly, the appellant/Akhtar Ali, as neither the relation between the two was known to the complainant, nor anything was available on record in that respect. As in the beginning the prosecution was in possession of no evidence, but subsequently, it succeeded in collecting the Call Data Record (CDR), which in turn took the investigating agency near the accused. The investigating agency worked on the data and on its conclusion reached to the killer and in consequence thereof, one of the appellant was arrested. Though the SIM number used by the appellant, Akhtar Ali, was found connected with that of the deceased a day earlier to his killing, yet the prosecution is to tell that what mobile phone was in the possession of the deceased and what SIM Number. In order to resolve the controversy, we went through a recovery memo where the mobile phone of the deceased was taken into possession, from the Hujra of one Abbas Khan, that too, on pointation of the appellant. The prosecution concluded that the SIM in use of the appellant was tested in the
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mobile phone of the deceased as the IMEI disclosed the same, but we are to see as to how the mobile was recovered and from whose premises. As the owner of the Hujra was the most important witness, so he must have been investigated and his statement must have been recorded, but the investigating officer did not. This lack of interest on part of the investigating officer tells nothing but that the phone was not recovered in the mode, manner and on the pointation of the appellant, Akhtar Ali. This is again surprising that when the place of recovery was away from the respective places from which rest of the recoveries were made and from the place where the deceased was killed, then what led the appellant to throw the mobile at a place which was neither related to him, nor was in his knowledge. The investigating officer went so carefree that he did not mention as to whether the owner of the Hujra was asked to cooperate or otherwise, when such is the state of affairs, we lurk no doubt in mind to hold that the prosecution failed to convince the manner in which the mobile phone was recovered. When this piece of evidence cannot be taken into consideration, then how this Court would say that the communication between the two has fully been established, rather this Court is not hesitant in holding that the prosecution failed to convince that it was the appellant who talked to the deceased before and on the day of the incident, so this piece of evidence has lost its utility and we are not in a happy mode to weigh it against the appellant. It is interesting to note that despite having ample time to associate independent witnesses, the investigating officer relied upon the official witnesses, but he did not mention that why no efforts were made to associate private witnesses to witness the recovery. We are conscious of the fact that the police officials are as good witnesses as the others are, but the legal requirement must be taken into consideration and the strict compliance of section 103 Cr.P.C must be made. The intent behind insertion of section 103 in the Code of Criminal Procedure was to pave the way for fair, transparent and impartial investigation, but it was the investigating officer who willfully avoided to investigate, strictly in accordance with law and in the like circumstances it is not the appellant to be punished, rather it is the prosecution to suffer. Reliance can be placed on "NAVEED ASGHAR and 2 others Versus the STATE" (PLD 2021 Supreme Court 600), which reads as follows:- "29. Even otherwise, recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case." 13. So far the remaining recoveries i.e. the bicycle from the godown and the axe alongwith the dagger from the house of the appellant are concerned the same by itself cannot help the prosecution to proceed, as the axe and dagger were not blood stained and also the bicycle. It surprises us that how an accused after killing the deceased and cutting his body into pieces, would provide the instruments in his house to be used in the kitchen, knowing the fact that with its help a man was killed and cut into slices. True that the investigating officer sent, blood scratches, collected from godown, a blood stained piece of sack, to the Forensic Science Laboratory to know as to whether the same had the same blood group as that of the deceased and that a report was received telling that the same was of the same human group, but once the recoveries are disbelieved then this piece of evidence would hardly play a decisive role, that too, for awarding death sentence to the accused charged. 14. The convict-appellant, Akhtar Ali, was shown arrested on 27.02.2019, from a local bazaar, and that subsequently he made numerous pointation, but the manner and time of his arrest were fully suppressed. Right from the beginning the defense tried to persuade that the appellant-Akhtar Ali was arrested much earlier and was placed in illegal confinement, but the learned Trial Court was not persuaded. In order to resolve the controversy, we went through the statement of the
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complainant, who was examined as PW-8; he stated that on 27.02.2019, when he visited the local police station, he found the convict-appellant, Akhtar Ali, in the police lockup. The witness further explained that it was 10am when he saw the appellant in the police lockup. When the police official was examined in that respect, he categorically denied of the availability of the appellant in the police station at 10am. As the complainant is the real brother of the deceased, so we would not expect that he would make concession to the appellant, but we are expecting that he would tell the truth. When the complainant does not support the stance of the police official and when the complainant was specific regarding the…
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