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Petitioner: Aftab Hussain and another VS Respondent: The State and another
Court Name: Islamabad High Court Judge(s): Athar Minallah, Miangul Hassan Aurangzeb Title: Aftab Hussain and another vs The State and another Case No.: Criminal Appeal No. 55 of 2016 Date of Judgment:2020-05-04 Reported As: KLR 2021 Criminal Cases 318, 2021 P Cr. L J 761 Result: Order accordingly
JUDGMENT
JUDGMENT ATHAR MINALLAH, C.J.--- Aftab Hussain, son of Altaf Hussain [hereinafter referred to as the "Appellant No. 1] and Amraiz Ahmed, son of Mukhtar Ahmed [hereinafter referred to as the "Appellant No. 2"], have preferred the instant appeal and Jail Appeals Nos. 46/2016 and 47/2016 respectively [collectively they shall be referred to as the "Appellants "]. Zubair Iqbal Khan, son of Rab Nawaz Khan (PW-11) thereinafter referred to as the "Complainant "] has filed Criminal Appeal No. 60/2016, titled "Zubair Iqbal Khan v. Mst. Saba Altaf", challenging the acquittal of Ms Saba Altaf, daughter of Altaf Hussain thereinafter referred to as the "Acquitted-Accused]. The former has also filed Criminal Revision No. 24/2016, seek ing enhancement of sentences handed down by the learned trial Court. The appeals and the petition seeking enhancement of sentences shall be decided through this consolidated judgment. On conclusion of the trial the learned trial Court convicted Appellant No. 1 and Appellant No. 2 while a verdict of acquittal was handed down in favour of the Acquitted-Accused. Appellant No. 1 is the brother of the Acquitted-Accused and Appellant Mo. 2 is his friend. 2. The proceedings relating to the gruesome murder of a young man, Qaiser Iqbal [hereinafter referred to as the "Deceased "], commenced pursuant to the complaint (Exh.PW) of the Complainant which led to the registration of the criminal case i.e. FIR No. 342, dated 11-12-2010, at Police Station Bharakahu, Islamabad [hereinafter referred to as the "FIR"] (Exh.PU). The Complainant, in his complaint (Exh.PW), had stated that he was a student at one of the Universities in Islamabad and the Deceased was his uncle. He tried to contact the Deceased telephonically for two days prior to the date of occurrence but there was no response. He inform ed his other uncle, namely Atta Muhammad Khan, and the latter advised him to visit the residence of the Deceased. The Complainant has stated in the complaint that at about 9:30 a.m. on 11.12.2010 he, along with two friends, namely Asad Ali Shah, son of Muhammad Obaidullah (who did not enter the witness box) and Muhammad Ajmal son of Ghulam Muhammad (PW-15) visited plot No. 3, street No. 1, Banni Gala, Islamabad i.e. the house of the Deceased [hereinafter referred
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to as the "crime scene "]. They found the main gate and the door of the room locked from outside. After breaking the locks they entered the premises and found the body of the Deceased lying in his bedroom. His hands were tied to one of his legs. It was also stated that some personal items belonging to the Deceased, such as his mobile phone and laptop as well as cash in his wallet, were missing. They informed the Police Emergency 15 and, in response, Gulzar Sub-Inspector (PW-16) [hereinafter referred to as the "Investigating Officer "] reached the crime scene. According to the deposition of the latter he had reached the crime scene at about 10:15 a.m. The body of the Deceased was sent to the Pakistan Institute of Medical Sciences [hereinafter referred to as the "Hospital "]. At the crime scene the Investigating Officer prepared the inquest report (Exh.PN). According to his deposition he was informed by people present there that a "chowkidar" (watchman) also lived in the house but was not present. But there is no mention of the persons who had given this crucial infofmation. The watchman, namely Haq Nawaz (PW- 10), arrived at the crime scene after a short time. A special team of police officials took finger print impressions and the card was handed over to the Investigating Officer. The latter prepared an unsealed site plan (Eh.PG) and took some articles/items into possession from the crime scene vide recovery memo (Exh.PH). The Investigating Officer recorded supplementary statements of the Complainant and other witnesses and, in the light thereof, Appellant No. 1 and the Acquitted-Accused were nominated. The postmortem report (Exh. PM) was taken into possession by the Investigating Officer vide recovery memo (Exh.PB). The autopsy was conducted by Dr Muhammad Farrukh Kamal (PW-6) and the injuries described in his report (Exh.PM) were as follows: i. Scar mark of strangulation on neck two in number each 38 cm circumference with difference of 2 cm in between the scar marks. ii. Scar mark on both wrists and left leg above ankle. Rigor mortis and levedity present. Nail and lips bluish in colour ." The witness (PW-6) was of the opinion that death of the Deceased was cause d due to strangulation. It is the prosecution's case that sketches of the accused were prepared on 12.12.201 0 by Head Constable, Dilawar Hussain (PW 1), who claims to be an expert. The sketches were stated to have been drawn on the basis of a description given by Haq Nawaz (PW-10) and Tariq Mehmood (PW-12). The sketches were brought on record as Exh.P-1 and Exh.P-2. According to the testimony of the Investigating Officer he collected the two sketches and photos from the Police Emergency 15. On 14.12.2010 the record of the cellular data relating to the phone in the use of the Deceased was taken into possession. On 16.12.2010 the draftsman, namely Bashir Ahmed Awan (PW- 7), visited the crime scene and prepared the scaled site plan Exh.PT . It is the case of the prosecution that on 18.12.2010, the Appellants were traced through the data of the cellular phone which was in the use of the Deceased and that on the same date the Acquitted-Accused was summoned, interrogated and later arrested. According to the deposition of the Investigating Officer she confessed and, therefore, was accordingly arrested. But, admittedly , she stated that she lived in her parents' house in Lahore and was married to the Deceased. On 21.12.2010, the finger print card was sent to the Crisis Management Cell of the Ministry of Interior , Islamabad. On 23.12.2010, the Appellants were arrested and a 30-bore pistol and .20-bore rifle were recovered from them and taken into possession. Appellant No. 2 was sent to a judicial lock up while the physical remand of Appellant No. 1 was obtained. The identification parade of Appellant No. 2 was conducted on 28.12.2010 under the supervision of Hussain Bahadur , Magistrate Islamabad Capital Territory (PW-9). The report of the latter was placed on record as Exh.PV . In response to a question, Appellant No. 2 had stated that he had been photographed at the Police Station after his arrest. On 01.01.201 1, Appellan t No. 2 led the Investigating Officer to the recovery of a knife (Churri) Exh.P AB while the laptop was recovered on 02.01.201 1 from a' flat said to have been rented by the Acquitted- Accused and the same was taken into possession vide Exh.P AD. Pursuant to the direction of the High Court, two photographs, which were already available on the police file, were made part of the evidence as Exh.DA and Exh.DB, respectively . The charge against the Appellants and the Acquitted-Accused was framed on 18.07.201 1 and, after the conclusion of the trial, the former were convicted and sentenced to 'life imprisonment' while the latter was handed down the verdict of acquittal by the learned Additional Sessions Judge-III, East-Islamabad vide impugned Judgment, dated 22.02.2016.
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3. The learned counsel for the Appellants has argued that; the prosecution had failed to prove its case beyond a reasonable doubt; it was an unseen murder; the medical evidence contradicts the circumstantial evidence brought on record; the story of the prosecution does not appeal to a reasonable prudent mind; there is nothing on record to suggest that the Complainant and the others who were accompanying him had made any effort to verify the whereabouts of the Deceased or to inquire from the neighbours before breaking the locks of the outer gate and the room; the breaking of the locks of the outer gate is also shrouded in mystery because the testimonies of the witnesses are contradictory; the police was not informed before breaking the locks; the Complainant was a close relative of the Deceased and had been frequently visiting the crime scene prior to the occurrence but he did not inquire about the watchman i.e. Haq Nawaz (PW-10); the identification parade was not conducted in accordance with the settled law and there is no explanation as to why Appellant No, 1 had not been identified through an identification parade; the presence of Tariq Mehmood (PW-12) as a chance witness has not been explained; the photographs of the Appellants were available on the police file prior to conducting the identification parade; the photographs were brought on record as exhibits; the witnesses and the Deceased belonged to the same area. 4. The learned counsel for the Complainant, on the other hand, has argued that; the prosecution had established its case beyond a reasonable doubt; the circumstantial evidence was sufficient to hand down capital punishment; the prosecution witnesses were not cross-examined on material points; the last seen evidence is reliable and was sufficient to hand down a conviction; PW-12, namely Tariq Mehmood, was the most important independent witness who saw the Deceased in the company of the Appellants on the fateful night; the motive stood admitted; the finger print report was positive; Appellant No. 1 was not idintified through conducting an identification parade because he was already known to the witnesses. The learned counsel has placed reliance on the judgments reported as "Binyamin alias Khari and others v. The State [2007 SC M R 778], "Babar Ali v. Bashir Ahmad and another " [2007 SCMR 184], "Sheraz Tufail v. The State " [2007 SCMR 518), "Muhammad Ashraf v. The State " [1998 SCMR 80], "Gulzar Shah v. The State " [2002 SCMR 1168J, "Manzoor Ahmed v. Fazal Ahmed and 3 others" [2013 SCMR 1403 ], "Muhammad Nawaz v. Muhammad Nawaz al as Naji and 4 others " [1997 SCMR 1521 ], "Farhat Azeem v. Waheed Rasul and others " [PLD 2000 SC 18], "Bashir Ahmed v. Zulfiqar Ahmed and another " [PLD 1992 SC 463], "Lazar v. The State " [2008 YLR 2710 ], "Shahid v. The State" [2008 SCMR 1599 ], "Ahmad Subhan alias Bana and another v . The State " [1994 SCMR 1 176]. 5. The learned State Counsel has adopted the arguments advanced by the learned counsel for the Complainant. 6. The arguments have been heard and the record perused with the able assistance of the learned counsel. 7. The prosecution's case is entirely based on circumstantial evidence because the crime of the gruesome murder of the Deceased was not witnessed by any person. It was a blind unseen murder . It is the case of the prosecution that the Appellants and the Acquitted-A ccused, along with a three or four month old infant, had visited the Deceased on 07.12.2010. Haq Nawaz (PW-10) had been employed as a watchman a few days prior to the date of occurrence on the recommendation of a friend of the Deceased. He had deposed that the visit on 07-12-2010 had lasted for about forty five minutes and that during this time he had heard the Appellants and the Acquitted-Accused having a heated argument with the. Deceased. He further deposed that, after their departure, the Deceased had told him that the Acquitted-Accused was blackmailing him by claiming that the infant was his child. The role and conduct of Haq Nawaz (PW-10) and his deposition raises serious questions regarding the credibility of the prosecution's story . Moreover , despite being a star witness of the prosecution no effort was made during investigations to establish whether he had actually been employed by the Deceased, because other witnesses did not know him nor had seen him prior to the occurrence. According to his testimon y the Appellants again came to the house of the Deceased on 09.12.2010 at about 10:30 p.m. They had brought raw fish which was cooked by them in the kitchen. He had been asked by the Deceased to fetch water and thus he remained absent from the crime scene. During his absence another witness, namely Tariq Mehmud (PW-12) claims to have come to deliver bread. The time during which the witness i.e. PW-10 remained absent has not been mentioned. On his return he found the Appellants and the Deceased together . At 12:30 a.m. he asked the Deceased whether his services were required and the latter answered in the negative, after which hd went to his room and fell asleep at about 2 am. He further deposed that on the morning of the next day i.e. 10.12.2010, he was woken up at 9:45 a.m. because of
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noises coming from outside. When he came out of his room he saw the Appellants locking the room of the Deceased. According to his testimony the Appellants appeared confused and they asked him to get tea for them from outside. The latter had told him that the Deceased had left in urgency because one of his relatives had died. As per his version, when he returned after a short while he found the main gate locked from the outside while the Appellants had left. He accessed the premises by jumping over the wall. It was quite odd and not the expected behavior of a reasonable prudent person not to have suspected mischief because, according to his own testimony , the Appellants had acted nervously when he saw them last and the Deceased had also told him after their visit on 07.12.2010 that he was being blackmailed. It is also unlikely for anyone to believe that his employer would have left without informing him when, according to the scaled site plan, his room was situated at the entrance gate. Also, Haq Nawaz (PW-10) did not mention in his deposition that Appellant No. 2 was carrying a laptop when he saw them locking the room of the Deceased. From the morning of 10.12.2010 i.e. when , according to Haq Nawaz (PW 10), the Appellants had sent him to fetch tea and then mysteriously disappeared, locking the main gate from outside, till the Complainant and the police officials arrived the next day, the witness kept going in and out of the locked premises by jumping over the wall. He did not inform anyone nor did he make any attempt to inquire about the sudden mysterious disappearance of his employer i.e. the Deceased or the Appellants. The testimony of the Complainant is also questionable. There is nothing on record to suggest that the latter and those who were accompanying him had made any inquiry regarding the Deceased before breaking the locks and, that too, without informing the police. The Complainant had stated in his testimony that a hammer was used to break the locks while he had simultaneously deposed that no one in the neighborhood could be contacted because it was a weekend. The police, led by the Investigating Officer, had reached the crime scene shortly after the locks were broken but the evidence is silent about the hammer referred to by the Complainant. Mohammad Ajmal, PW 15, had accompanied the Complainant to the crime scene but he did not say a word about how the locks had been broken, rather , he had confirmed that they did not have any tool or instrument for that purpose. It has also not been explained by the Investigating Officer as to why he did not interview or inquire from the other persons who were present at the crime scene when he had arrived there for the first time on 11-12-2010. According to the evidence brought on record, the Complainant had reached the outer gate of the house at about 9:30 a.m. while the Investigating Officer arrived at 10:15 a.m. During this short period the Complainant and the two friends accompanying him had broken the locks with a mystery hammer without making any inquiry , had searched the premises and had managed to ascertain what items were missing, including cash from the wallet. They had also informed the Police Emergency 15 and, obviously , it must have taken some time for the Investigating Officer to reach the crime scene. The matter had reached at about 10.15 a.m. If the testimo nies were to be believed then all this happened within the span of about forty five minutes. Moreover , the Complainant stated in his testimony that two other witnesses, i.e. Saifullah Khan, son of Ghulam Rasool, (PW-13) and Saifullah Khan, son of Mohammad Ameer (PW14) were his relatives and thus they were related to the Deceased as well. Their depositions will be discussed later . 8. The testimony of Tariq Mehmood (PW-12) and his role also raises doubts. The witness was employed' as a driver in the company where the Deceased was working. The office of the company was located at "Peshawar More" in Islamabad, which is at a conside rable distance from the crime scene. It is obvious from the deposition of Haq Nawaz (PW-10) that there were eating outlets near the crime scene. According to the testimony of Tariq Mehmood (PW-12), on 09-12-2010 he was asked by the Deceased to get "six naans" i.e. bread from Islamabad. During cross-examination, when he was asked about the details of the ' vehicle used by him to deliver the bread from Islamabad to the crime scene, he stated that it was the private vehicle of the Deceased which was parked outside the office. There is no plausible explanation for the Deceased to have left his privately owned vehicle outside the office when he was at home. From the testimony of Haq Nawaz, PW.10, it appears that it was not in his knowledge prior to the arrival of the Appellants at 10:30 p.m. on 09-12-2010 that the latter would be coming to have dinner and that they would be bringing raw fish to be cooked at the crime scen e. It was after the arrival of the Appellants at the crime scene that he was sent by the Deceased to get water from outside. On the other hand, according to the prosecution's story , Tariq Mehmood, PW-12, had already been told to bring six pieces of bread from a considerable distance. It is difficult to fathom that a person would be asked to bring six pieces of bread from
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a considerable distance when it could have been arranged from near the crime scene. There is also no explanation as to how Appellant No. 1 was already known to the witness Tariq Mehmood (PW -12). 9. The testimony of Saif Ullah Khan, son of Ghulam Rasool (PW-13), who admittedly was a relative of the Deceased, does not inspire confidence. The Acquitted-Accused was a stranger to him and according to the testimony of the witness the Deceased was not present in his office. It is unlikely that a woman would approach a stranger and seek his help in settling her marital disputes and then, in the presence of the latter , she would call her brother i.e. Appellant No. 1 and tell him to come from Lahore to teach the Deceased a lesson. In the language of the witness 'usko thekaney lagana hai' . According to the witness he had met the Acquitted Accused on 07-12- 2010. It was the same day when according to PW 10 the Appellants and the Acquitted Accused had visited the Deceased. Surprisingly , Saif Ullah (PW-13) did not share such important information with anyone nor did he warn the Deceased. The deposition of the other witness, Saifullah Khan, son of Muhammad Amir (PW-14), has also not been found to be reliable and trustworthy . He was also acknowledged as a relative of the Complainant. According to his testimony , the distance between the crime scene and his business office was about twenty kilometers. He has vaguely stated that his purpose was to see a plot but he did not give sufficient details to substantiate his claim. He also did not explain how Appellant No. 1 was already known to him. There is yet another crucial piece of evidence i.e. the sketches of the Appellants, Exh.P-1 and Exh.P-2 and the presence of their photographs in the police file which were later exhibited as Exh.DA and Exh.DB. There is no explanation as to how and when the photographs of the Appellants were taken and made part of the police file. But the interesting aspect is the extent of similarity between the sketches and the photographs. The posture, expressions and details are so alike that it would raise doubts in the mind of a reasonable prudent person regarding the sketches having been genuinely drawn by an expert without having had access to the photos. The similarities are so obvious to the naked eye of a person of ordinary prudence that it raises doubts regarding the probity of the investigations. Moreover , the Head Constable Dilawar Hussain (PW 1), who is said to have drawn the sketches, could not give a satisfactory explanation regarding his expertise in this field nor about similarities of the sketches with the photographs which were available on record. The presence of the photographs has consequences for the reliability of the identification parade as well. 10. The contradictions between the un-scaled site plan Exh.PG and scaled site plan Exh.PT also cannot be ignored. The former does not indicate the presence of the watchman's cabin while the latter does. The measurement of the cabin in the scaled site plan (Exh.PT) prepared by the Draftsman is 6'-9" x 6'-9". The site plan does not show any other room or a toilet for the use of the watchman. This also makes the testimony of Haq Nawaz (PW 10) doubtful because he had stated that when he came out of his room on the morning of 10-12-2010 he saw the Appellants locking the room of the Deceased. The motive for committing the gruesome murder of the Deceased could not be proved by the prosecution by bringing on record cogent and reliable evidence. The Acquitted Accused had taken a specific stance regarding her relationship with the Deceased in her statement recorded under section 342 of the Cr.P.C. But by no stretch of the Imagination could such a stance be taken as establishing the motive for a gruesome crime. On the contrary it, prima facie, cannot be ruled out that the statement may be factually correct. The Investigating Officer had deposed in his examination in chief that on 11.12.2010, a supplementary statement of an unspecified witness was recorded and, pursuant thereto, Appellant No. 1 and the Acquitted Accused were nominated. However , he did not contact either of them . During cross-examination he unequivocally stated that on 12.12.2010 he did not know who were involved in commission of the offence. He further deposed that on 18.12.2010 the Acquitted Accused was summoned, interrogated and thereafter arrested. But in his cross-examination he stated that she was arrested from behind the flat wherefrom the laptop was purportedly recovered. The Investigating Officer also admitted that he was informed by the latter that she had married the Deceased and that they had a child from the marriage. She had also stated that she was living with her parents in Lahore. The Investigation Officer, for reasons best known to him, chose not to investigate these crucial facts. The recovery of the laptop from an apartment stated to have been rented out to the Acquitted Accused further raises doubts regarding the story put forth by the prosecution. The Investigating Officer conceded, while being cross-examined, that this aspect could not be confirmed during the investigation and according to his testimony the
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access to the flat was given by someone claiming to be its owner . The testimony of Munawar Abbas, Constable, PW 3, further establishes the questionab le conduct of the purported recovery of the laptop from a flat which was neither in possession of the Acquitted Accused nor was there any evidence to the effect that she had rented it. The prosecution could also not establish that the laptop was the property of the Deceased. The deposition of the Investigation Officer unambiguously shows that the prosecution could not establish that the apartment had been rented out to the Acquitted Accused. The Investigating Officer had obtained the data relating to the phone used by the Deceased but failed to do so in the case of the Appellants, the Acquitted Accused or other witnesses. Was it deliberate, because it may have indicated their probable location or was it due to incompetence? Was it an attempt to suppress crucial evidence? The finger print impressions stated to have been taken from the crime scene can also not be relied upon. The record does not indicate that the finger print card was taken into possession or kept and later sent for an opinion in a manner and after adopting procedures that would have over ruled manipulation. 11. The learned counsel for the Complainant has argued at great length regarding the reliability of the testimony of Saif Ullah Khan, son of Muhammad Amir (PW-14), as a chance witness and also on the touchstone of the principles of 'last seen evidence'. We are afraid that on both grounds the testimony cannot be relied upon. The august Supreme Court, in the case titled "Muhammad…
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