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Petitioner: SHABBIR AHMAD VS Respondent: StateHonorable Justice Manzoor Ahmad MalikAzam Nazeer Tarar and Momin Malik
2015 Y L R 93
[Lahore]
Before Manzoor Ahmad Malik, J
SHABBIR AHMAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.601 and Criminal Revision No.241 of 2004, heard on 13th February, 2014.
(a) Criminal trial---
----Evidence---Circumstantial evidence---Scope---Where no direct evidence was available and prosecution case hinged on circumstantial evidence, every circumstance should be linked with each other; and it should form such a continuous chain that its one end touched the dead-body, and other neck of the accused---If chain link was missing, then its benefit must go to accused.
Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 364 & 34---Qatl-e-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Inordinate delay of fifteen days in the registration of F.I.R., had cast serious doubts on the veracity of prosecution case---Story of last seen evidence, which was introduced as afterthought, did not inspire confidence; and it was not safe to rely on said evidence of last seen; and could not be used against accused for maintaining his conviction on capital charge---Evidence of extra-judicial confession furnished by prosecution witness, was not worth reliance---Prosecution had failed to prove the motive behind the occurrence---Weapons of offence, Chhuri and bugda, allegedly recovered at the instance of accused, with positive report of Chemical Examiner and Serologist, were sent to relevant offices, about two months after the occurrence---Remote possibility of blood being present on both said articles existed and it was not safe to rely on said pieces of evidence, in circumstances---Dead body of the deceased was taken into possession from the water course 24 days prior to arrest of accused---Prosecution case being doubtful in nature, accused was entitled to the benefit of doubt, not as a matter of grace, but as a right---Conviction and sentence awarded to accused by impugned judgment passed by the Trial Court, was set aside, accused was acquitted of the charge against him extending him benefit of doubt, and he was released, in circumstances.
Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Basharat and another v. The State 1995 SCMR 1735; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Ayub Masih v. The State PLD 2002 SC 1048 ref.
(c) Criminal trial---
----Medical evidence---Scope---Medical evidence was only a supporting piece of evidence, because it could confirm the ocular evidence with regard to the receipt of the injury; its locale, kind of weapon used for causing the injury, duration between the injury and death, but it would not tell the name of the assailant.
Ata Muhammad and another v. The State 1995 SCMR 599 rel.
Mrs. Bushra Qamar Defence counsel at State expense for Appellant (in Criminal Appeal No.601 of 2004).
Nisar Ahmad Virk, DDPP for the State.
Azam Nazeer Tarar for the Complainant.
Azam Nazeer Tarar and Momin Malik for Petitioner (in Criminal Revision No.241 of 2004).
Dates of hearing: 12th and 13th February, 2014.
JUDGMENT
MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No.601 of 2004 titled as "Shabbir Ahmad v. The State" and Criminal Revision No.241 of 2004 titled as "Muhammad Ashiq v. The State and another" as both these matters have arisen out of the same case i.e. F.I.R. No.54 dated 4-3-2001 offence under sections 302, 364 and 34 P.P.C. registered at Police Station Kotwali, District Faisalabad. Vide judgment dated 27-2-2004 passed by the learned Additional Sessions Judge, Faisalabad, the appellant, after having been tried under sections 302, 364, 201 and 34 P.P.C., was convicted and sentenced as under:--
"31. so I hold him guilty for the murder of Waseem deceased. The ingredients of section 302(a) are not attracted in this case, so I convict him under section 302(b), P.P.C. and sentenced him for life imprisonment R.I with fine of Rs.100,000 to the legal heirs as compensation under section 544-A Cr.P.C. The legal heirs of the deceased are entitled to receive compensation as arrear of land revenue in default he will suffer six months R.I, however, he is acquitted from the charges under sections 364, 201, 34 P.P.C. being unproved. The accused is also entitled to the benefit of section 382-B, Cr.P.C. "
Assailing the above conviction and sentence, Shabbir Ahmad (appellant) has filed Criminal Appeal No.601 of 2004 titled as "Shabbir Ahmad v. The State" whereas Muhammad Ashiq complainant has filed Criminal Revision No.241 of 2004 titled as "Muhammad Ashiq v. The State and another for enhancement of the sentence awarded to Shabbir Ahmad respondent No.2 from life imprisonment to death sentence.
2. Prosecution story, as set out in the F.I.R. (Exh.PE/1) registered on the basis of written application (Exh.PE) of Muhammad Ashiq, complainant (P.W.6) is that he was resident of Ilyas Park. His son Muhammad Wasim alias Nomi worked as calligrapher at Madina Market, Aminpur Bazar who on 17-2-2001 did not return home till Saturday evening. Therefore, on 22-2-2001, complainant made report about the missing of his son at Police Station Kotwali and also remained busy in search of his son at his own end. During search, Muhammad Aslam son of Allah Ditta caste Mughal resident of House No. 554, Street No.1 Mohallah Muhammadabad Satyana Road and Basharat Ali son of Abdul Ghafoor caste Mughal resident of House No. P/63 Street No.1 Mohallah Latif Park Jhang Road Faisalabad met the complainant and told that on 17-2-2001 at evening time, they were standing near main terminal while waiting for a wagon and saw Muhammad Wasim alias Nomi while going along with Shabbir Ahmad (appellant) son of Muhammad Ramzan caste Sheikh resident of Afghanabad No.2 and Mehmood alias Mooda son of Mazhar caste Lodhi Bhatti resident of Street No.6 Ilyas Park Faisalabad, who met them. Therefore, through panchait Shabbir Ahmad (appellant) and Mehmood alias Mooda were asked about the whereabouts of Muhammad Wasim alias Nomi who after much hesitation told that they would return Muhammad Wasim alias Nomi in a few days. On 4-3-2001, complainant received the information that some pieces of dead body were lying in the watercourse in between Chak No.217/RB and Chak No.219/RB. After receiving the information, complainant along with his brother Tariq Mehmood and Muhammad Naeem reached the place where parts of dead body were lying and identified that the dead body was of Muhammad Wasim alias Nomi. Complainant's side collected the pieces of dead body and took the same to Allied Hospital, Faisalabad. The complainant expressed strong suspicion that Shabbir Ahmad along with Mehmood alias Mooda in order to commit murder, had abducted his son Muhammad Wasim alias Nomi from the shop situated at Madina Market Aminpur Bazar and later on killed him at some unknown place with sharp edged weapon and to dispose of the dead body had thrown the same in the watercourse at some abandoned place, which had putrefied to a large extent.
The motive behind the occurrence as alleged in the F.I.R. (Exh.PE/1) was that complainant's son Muhammad Wasim (deceased) and Shabbir Ahmad (appellant) were interested in the same girl. Because of the said rivalry, Shabbir Ahmad (appellant) while considering Muhammad Wasim alias Nomi as his rival in connivance with Mehmood alias Mooda (co-accused since acquitted) had abducted him after enticement and thereafter committed his murder with sharp edged weapon.
3. On 4-3-2001, Sajjad Hussain S.I. (P.W.11) was posted at Police Station Kotwali, Faisalabad and at about 05:00 pm, he along with other police officials was present at Chiniot Bazaar where Muhammad Ashiq complainant appeared before him and got recorded his statement (Exh.PE) which was sent through Fazal-ur-Rehman 1450/C for registration of formal F.I.R. (Exh.PE/1). Thereafter, he proceeded to Allied Hospital where he inspected the dead body of Waseem alias Nomi (deceased), prepared injury statement (Exh.PH) and inquest report (Exh.PJ). He entrusted dead body to Muhammad Aslam 3745/C for postmortem examination. Then he visited the place of occurrence and prepared rough site plan (Exh.PK) of the place where the deceased was lastly seen alive in the company of the appellant and his co-accused. On 5-3-2001, Muhammad Aslam 3745/C produced before him last worn clothes of deceased viz patloon (P.1), shirt (P.2), underwear (P.3) bunyan (P.4), shoes (P.5), pair of socks (P.6), taveez (P.7) and Jersi (P.8) which were taken into possession vide recovery memo (Exh.PA). Thereafter, he proceeded to the place wherefrom dead body of deceased was recovered, prepared rough sketch plan (Exh.PL). Thereafter, he visited the place where deceased was allegedly murdered. He inspected House No. P-153 and prepared rough site plan (Exh.PM). He took into possession pieces of cloth (P.9), arm piece of jersi (P.10), bunyan (P.11) and piece of bunyan (P.12) which were taken into possession vide recovery memo (Exh.PB). He also took into possession blood stained earth from house No.P-153 and made into sealed parcel vide recovery memo (Exh.PF). On 7-3-2001, he took Aurang Zeb Draftsman (P.W.5) to house No.P.153 Afganabad who took rough notes of the place of occurrence and on 10-3-2001 handed over to him the scaled site plans (Exh.PD and Ex.PD/1). On 30-3-2001, he arrested Shabbir Ahmad (appellant) along with co-accused Nauman Khalid from their houses. On 3-4-2001, Shabbir Ahmad (appellant) made disclosure and led to the recovery of chhuri (P.13) and bugdha (P.14) from his residential house which were taken into possession vide recovery memo (Exh.PC). Thereafter, he got pre-pared the police report under section 173 Code of Criminal Procedure and sent the same to the court of competent jurisdiction.
4. After completion of investigation, initially the challan was sent to the Court of Judge Anti-Terrorism Court, Faisalabad on 6-6-2001 and after completion of trial, the learned Judge Anti-Terrorism Court, Faisalabad convicted Shabbir Ahmad (appellant) under sections 364, 302-B P.P.C. and section 7 of the Anti Terrorism Act, 1997 on 24-1-2002. Assailing the aforesaid conviction and sentence, Shabbir Ahmad (appellant) preferred an appeal before this Court which was accepted by a learned Division Bench of this Court vide judgment dated 7-5-2002 and the case was remanded with the following orders:--
"Under the above discussion, the judgment of the trial Court being coram non judice cannot be sustained. We, therefore, allow this appeal, set aside the conviction and sentence awarded by the trial Court. We remand the case for de novo trial to the ordinary Court of law and send the file to the Court of learned Illaqa Magistrate for an order under section 190(2), Cr.P.C."
On 21-6-2002, the case was received in the Court of learned Judicial Magistrate, Faisalabad. Thereafter, the case was sent to the Court of learned Sessions Judge, Faisalabad as the offences were exclusively triable by the Court of Session.
The appellant along with his co-accused namely Nauman Khalid and Mehmood alias Moda (since acquitted) were summoned by the learned Addl Sessions Judge, Faisalabad, to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge under sections 302, 364, 201, P.P.C. read with section 34 P.P.C. was framed against them on 20-5-2003 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as twelve witnesses, in all. Evidence of last seen was furnished by Muhammad Aslam (P.W.4) who also witnessed the alleged recovery of chhuri (P.13) and bugdha (P.14) at the instance of Shabbir Ahmad (appellant), Evidence of extrajudicial confession was furnished by Muhammad Ahmad (P.W.7). Muhammad Ashiq complainant (P.W.6) and Tariq Mehmood (P.W.2) furnished the evidence regarding recovery and identification of dead body of Muhammad Wasim alias Nomi (deceased). Medical evidence was furnished by Dr. Yousaf Hassan Khan (P.W.8). Sajjad Hussain S.I. (P.W.11) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Mr. Ghulam Murtaza learned ADA gave up PWs Muhammad Naeem, Ashiq, Basharat son of Abdul Ghafoor, Basharat Ali son of Muhammad Alam, Chanan and Muhammad Ashiq son of Muhammad Alam being unnecessary vide statement dated 5-11-2003. After tendering in evidence report of Chemical Examiner (Exh.PN), report of Serologist (Exh.PQ) regarding clothes, report of Chemical Examiner (Exh.PR), report of Serologist (Exh.PS) regarding clothes, report of Chemical Examiner (Exh.PT) and report of Serologist (Exh.PU) regarding earth, report of Chemical Examiner (Exh.PV) and report of Serologist (Exh.PX) regarding chhuri and bugdha, closed the prosecution evidence vide statement dated 23-2-2004. Statements of the appellant along with his co-accused were recorded under section 342, Code of Criminal Procedure on 23-2-2004 wherein they refuted all the prosecution allegations levelled against them and professed their innocence. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Shabbir Ahmad (appellant) replied as under:--
"I have been falsely involved in this case. The story of prosecution regarding the alleged abduction and murder of Waseem deceased is belied by the very reput Exh.DD lodged by the complainant on 22-2-2001 wherein he has recorded that his son Waseem has been abducted by some unknown person. In fact Nauman co-accused was carrying an affair with the sister of Waseem deceased and he used to stand in the street in front of the house of Waseem. On having come to know about Waseem deceased had forbidden Nauman co-accused to stand in front of his house and a quarrel had taken place between them few days prior to the occurrence. Nauman had threatened the deceased with dire consequences in the presence of inhabitants of Mohallah. Afterwards the complainant received Rs.1,64000 from the parents of Nauman to save him from the punishment and for that reason the complainant have suppressed the truth and deposed against me falsely for ulterior motive. The PWs have deposed against me falsely due to their relationship with the deceased."
The appellant neither opted to appear as his own witness in disproof of the prosecution allegations levelled against him nor did he produce any evidence in his defence. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. However, co-accused of the appellant namely Mehmood alias Mooda and Nauman Khalid were acquitted by the learned trial Court while extending them benefit of doubt. Hence this appeal and revision.
5. Learned counsel for the appellant, in support of this appeal, contends that there is no direct evidence in this case and the prosecution case hinges on circumstantial evidence; that it is the case of the complainant in the F.I.R. (Exh.PE/1) that his son namely Muhammad Waseem alias Nomi (deceased) went to his shop as per routine and did not return home on 17-2-2001 but the matter was reported to the Police on 4-3-2001 i.e. with the delay of fifteen days; that though it is the assertion of the complainant in the F.I.R. that he got registered a rapt about the missing of his son on 22-2-2001 but the prosecution did not place on record any such rapt and cleverly so because when it was exhibited by the defence side as Exh.DD, it transpired that the same had been lodged against some unknown persons whereas it is in the prosecution evidence that Muhammad Aslam (P.W.4) had lastly seen Muhammad Waseem alias Nomi (deceased) alive in the company of the appellant and his co-accused namely Mehmood alias Mooda and it is also in the evidence of Muhammad Aslam (P.W.4) and Muhammad Ashiq complainant (P.W.6) that Muhammad Aslam informed the complainant about the evidence of last seen on 18-2-2001 i.e. just after one day when Muhammad Waseem alias Nomi (deceased) went missing; that testimony of Muhammad Aslam (P.W.4) is not worth reliance as according to him Muhammad Waseem alias Nomi (deceased) was allegedly taken by the appellant and his co-accused namely Mahmood alias Mooda; that this witness stated during his cross examination that Muhammad Waseem and another left main terminal on a cycle but no such cycle was recovered during the course of investigation; that Muhammad Aslam further stated during his cross examination that on the next day he came to know about the disappearance of the deceased and thereafter he came to the house of the complainant and searched for the deceased at various places; that had this witness seen the deceased in the company of the appellant and his co-accused instead of beating about the bush the complainant party should have approached the appellant and his co-accused to know about the whereabouts of deceased; that the evidence of extrajudicial confession allegedly made by the appellant and his co-accused namely Nauman Khalid is also not worth reliance because conduct of this witness is highly improbable as according to his assertion at the time of alleged confession of the appellant and his co-accused cousin of this witness namely Basharat Ali was also present in the house but they did not try to catch the appellant and his co-accused; that even otherwise according to the assertion of this witness appellant had met him only once and that too in the marriage ceremony of Muhammad Waseem alias Nomi (deceased) and as such it does not appeal to the mind of a prudent person that the appellant would have approached a person for confessing his guilt with whom he had not much acquaintance; that the motive set out in the F.I.R. was that the appellant and the deceased were interested in the same girl and due to the said rivalry the appellant along with his co-accused abducted Muhammad Waseem alias Nomi (deceased) and thereafter committed his murder by a sharp edged weapon; that while appearing before the learned trial court the complainant improved the motive and stated that the said girl had become wife of Muhammad Waseem (deceased) 20 days prior to the occurrence; that name of the said girl was not disclosed by the prosecution throughout the trial; that the girl who according to the prosecution was bone of contention between the appellant and Muhammad Waseem alias Nomi (deceased) was the star witness qua the motive part of the occurrence, she was wife of Muhammad Waseem alias Nomi (deceased) at the time of occurrence and thereafter became his widow but she was not produced by the prosecution during the trial and as such the prosecution withheld the best available evidence, therefore, adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 to the effect that had the said girl been examined, she would not have supported the prosecution case should be drawn against the prosecution; that the recovery of dead body of Muhammad Waseem alias Nomi (deceased) also does not connect the appellant with the commission of crime because the same was allegedly recovered on 4-3-2001 whereas the appellant was arrested in this case on 30-3-2001; that similarly discovery of the place of murder of Muhammad Waseem alias Nomi (deceased) and recovery of certain articles which were taken into possession vide recovery memo (Exh.PB) also do not advance the case of the prosecution against the appellant because the said discovery/ recoveries were effected on 5-3-2001 i.e. much before the arrest of the appellant and even otherwise nothing has been brought on record to establish that House No.P-153 was in possession of the appellant; that recoveries of chhuri (P.13) and bugda (P.14) at the instance of the appellant which were taken into possession vide recovery memo (Exh.PC) coupled with the positive report of Chemical Examiner (Exh.PV) and that of Serologist (Exh.PX) are also doubtful in nature because the said articles were handed over to Khalid Pervez Constable 2085/C for their onward transmission to the said offices on 14-4-2001 i.e. about two months after the alleged occurrence and by that time there was little possibility of the blood being present on these articles; that the evidence produced by the prosecution at trial is shaky in nature and conviction on capital charge cannot be maintained on these pieces of evidence.
6. On the other hand, the learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this appeal on the grounds that the prosecution witnesses have no enmity against the appellant to implicate him falsely in this case; that the circumstantial evidence clearly suggests that it was the appellant who committed the murder of Muhammad Waseem alias Nomi; that the prosecution case is supported by the evidence of last seen furnished by Muhammad Aslam (P.W.4) who lastly saw Muhammad Waseem alias Nomi (deceased) in the company of the appellant and his co-accused; that the prosecution case is further corroborated by the evidence of extrajudicial confession furnished by Muhammad Ahmad (P.W.7) before whom the appellant confessed his guilt; that the prosecution case is further corroborated by the recoveries of chhuri (P.13) and bugda (P.14) at the instance of the appellant which were used by the appellant during the commission of crime and taken into possession vide recovery memo (Exh.PC), coupled with the positive reports of Chemical Examiner (Exh.PV) and that of Serologist (Exh.PX); that dead body of Muhammad Waseem alias Nomi was also recovered, which was identified by Tariq Mehmood (P.W.2) and Muhammad Ashiq complainant (P.W.6); that the prosecution case is fully supported by the medical evidence furnished by Dr. Yousaf Hassan Khan (P.W.8); that the circumstantial evidence available on the record forms a complete chain and no link is missing.
7. In support of Criminal Revision No. 241 of 2004 filed by Muhammad Ashiq complainant for enhancement of the sentence of life imprisonment to death sentence awarded to Shabbir Ahmad (respondent No.2), learned counsel for the complainant/petitioner contends that the respondent No.2 committed brutal murder of Muhammad Waseem alias Nomi (deceased) by a sharp edged weapon, cut his body into pieces and then threw the same in a watercourse, therefore, there was no mitigating circumstance in favour of Shabbir Ahmad (respondent No.2) but the learned trial court without any lawful justification awarded the sentence of life imprisonment to the respondent No.2, therefore, the same be enhanced and death sentence which is normal penalty for Qatl-i-amd be awarded to the respondent No.2.
8. I have heard learned counsel for both the parties as well as learned Deputy District Public Prosecutor at a considerable length and have also gone through the record with their able assistance.
9. This incident was reported to the Police by Muhammad Ashiq (P.W.6) on 4-3-2001 through his statement (Exh.PE) who narrated that he was resident of Ilyas Park. His son Muhammad Wasim alias Nomi worked as calligrapher at Madina Market, Aminpur Bazar who on 17-2-2001 did not return home till Saturday evening. Therefore, on 22-2-2001, complainant made report about the missing of his son at Police Station Kotwali and also remained busy in search of his son at his own end. During search, Muhammad Aslam son of Allah Ditta caste Mughal resident of House No. 554, Street No.1 Mohallah Muhammadabad Satyana Road and Basharat Ali son of Abdul Ghafoor caste Mughal resident of House No. P/63 Street No.1 Mohallah Latif Park Jhang Road Faisalabad met the complainant and told that on 17-2-2001 at evening time, they were standing near main terminal while waiting for a wagon and saw Muhammad Wasim alias Nomi while going along with Shabbir Ahmad (appellant) son of Muhammad Ramzan caste Sheikh resident of Afghanabad No.2 and Mehmood alias Mooda son of Mazhar caste Lodhi Bhatti resident of Street No.6 Ilyas Park Faisalabad, who met them. Therefore, through panchait Shabbir Ahmad (appellant) and Mehmood alias Mooda were asked about the whereabouts of Muhammad Wasim alias Nomi who after much hesitation told that they would return Muhammad Wasim alias Nomi in a few days. On 4-3-2001, complainant received the information that some pieces of dead body were lying in the watercourse in between Chak No.217/RB and Chak No.219/RB. After receiving the information, complainant along with his brother Tariq Mehmood and Muhammad Naeem reached the place where parts of dead body were lying and identified that the dead body was of Muhammad Wasim alias Nomi. Complainant's side collected the pieces of dead body…
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