Muhammad Ashraf alias Nasir Khan Versus State

Muhammad Hashim Khan Kakar, C.J .--- Since both the above named appellants have assailed the one and same judgment dated 20.08.2022, passed by learned Sessions Judge, Loralai, arising out of FIR No.07/2020, lodged with Levies Thana Saddar Bori, under sections 302, 109, 324, 397/34 P.P.C, as such, we propose to dispose of the same through this common judgment.

2. The appellants, named above were booked in Crime No.07/2020 registered with Levies Thana Saddar Bori district Loralai on 08.08.2020 in respect of offences under Sections 302, 109, 324, 397/34 P.P.C and after a regular trial, they were convicted vide impugned judgment dated 20.08.2022, passed by the trial Court i.e. Sessions Judge, Loralai in the following manner:

"Hence, the accused persons Najibullah son of Alam Khan and Muhammad Ashraf alias Nasir Khan son of Fateh Muhammad alias Ghud are found guilty of committing Qatl-i-Amd of Abdul Hameed son of Abdul Jalil and of committing robbery causing him deadly hurt. Therefore, they are convicted under section 302 (b) read with section 34 P.P.C and sentenced to suffer RI for life and to pay compensation of Rs.1,00,000/- (one hundred thousand rupees) each or to undergo RI for six months. The compensation amount if recovered, shall be paid under section 544-A Cr.P.C. to legal heirs of deceased. They are further convicted under section 397 read with section 34 P.P.C and sentenced to suffer RI for ten years each and to pay fine of Rs. 1,00,000/- (one hundred thousand rupees) each or undergo RI for six months. Both substantive punishments shall run concurrently. Benefit of section 382-B Cr.P.C. is also extended in their favour."

3. The prosecution story as given in the impugned judgment reads as under:

"Brief facts of the case are such that on 8th August, 2020 one Muhammad Shafiq lodged report at Levies Thana Saddar Bori with the averments that his father Abdul Hameed was a driver of a Kabuli Townace vehicle which he used as taxi for earning livelihood. On the same date at noon some unknown persons hired him in order to take a female patient from Killi Shabozai at Chakhorh-Din Shrine. Those persons took his father to a room beside the shrine and injured him with knife blows and left him there after tying his hands and feet. The accused persons had taken away his vehicle, original CNIC, driving license, Nokia mobile No. 03083832576, cash amount and other papers. On learning about the incident, people of the area namely Ejaz and Muhammad Saleem took him to Civil Hospital Loralai for treatment. He (complainant) was informed by his brother-in-law Muhammad Yaqoob, so he rushed to the hospital along with his uncle Abdul Jabbar and found his father lying severely injured."

4. We have heard the learned counsel for the appellants as well as the learned counsel for the State and have gone through the record with their valuable assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, these appeals warrant acceptance with a resultant acquittal of the appellants.

5. As against that the learned Additional Prosecutor General (APG) maintained that prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the present appeals may be dismissed.

6. As per prosecution case, the appellants Najibullah and Muhammad Ashraf have been convicted for the murder of Abdul Hameed, following the incident where the deceased's Town Ace vehicle was snatched. The prosecution's case is primarily based on the statement of the deceased recorded under section 161 of the Code of Criminal Procedure (Cr.P.C), which has been presented by the prosecution as a dying declaration. The vehicle of the deceased, crime weapon (Knife) and the motorcycle used in the commission of offence were later recovered, based on the information provided by the appellants.

7. Due to absence of direct eye-witnesses, we have thoroughly examined the pieces of circumstantial evidence in order to reach proper conclusion. It is well settled in criminal jurisprudence that in cases relying on circumstantial evidence, the prosecution must establish a continuous and unbroken chain of circumstances that leads to the conclusion of the guilt of the accused beyond a reasonable doubt, The superior Courts have consistently held that each link in the chain of circumstantial evidence must be connected, and if any link is found to be weak or broken, the entire chain loses its probative value, thereby benefiting the accused.

8. It is also by now well established that the absence of eye-witness's testimony does not diminish the strength of circumstantial evidence when it is compelling and interlinked. The principles laid down in the case of 'Khurshid v. the State' (PLD 1996 SC 305) emphasize that circumstantial evidence must be so clear and cogent that it leads to no other rational conclusion than the guilt of the accused.

9. The prosecution has produced and placed on record the statement-cum-dying declaration of deceased (Ex.P/18-B), which has been recorded by PW-18 Risaldar Mehmood Khan. The scriber of the statement stated in his statement that the injured was in a position to give his statement. PW-4, Dr. Amjad Parvez als o verified that the injured was conscious when he had been brought to him and remained conscious during his examination. The closed scrutiny of said statement would show that it inspires full confidence; there was no possibility of tutoring; prompting deceased, was in a fit state of mind to make the statement and he had the opportunity to observe and identify the assailants. In the present case, the statement of the deceased, recorded before his death, identifies the appellants as the perpetrators. The reliability of a dying declaration is well recognized in law, provided it meets the necessary criteria of being made in a fit state of mind and without any undue influence.

10. Furthermore, the recovery of the vehicle, motorcycle, used in the commission of offence as well as weapon of offence on the pointation of appellants also serve as a significant pieces of circumstantial evidence. These recoveries not only corroborate the dying declaration but also establish a direct link between the appellants and the crime, as it demonstrates their involvement in the act of snatching the vehicle, which is integral to the murder charge. In this case, the circumstantial evidence, when viewed in its entirety, forms a coherent narrative that supports the prosecution's case.

11. It seems that the learned counsel for the accused persons cross-examined the prosecution witnesses at length but nothing favourable could be achieved. The lapses and discrepancies pointed out by the learned counsel for the appellants during the course of arguments are mainly procedural and do not vitiate the overwhelming circumstantial evidence which is well corroborated by the dying declaration. All the pieces of circumstantial evidence, i.e. disclosures of appellants, followed by the recovery of snatched vehicle, its headlights, motorcycle used in the commission of offence as well as crime weapon, when combined together, provide a strong chain of circumstances, leading to the conclusion that appellants Najibullah and Muhammad Ashraf had committed the murder of the deceased. Merely because the complainant was related to the deceased and he has failed to give full details of series of events prior to lodging of FIR, the prosecution case cannot be discarded as the FIR is not supposed to be encyclopedia of prosecution's case.

In the light of the above discussion, we find that the prosecution has successfully established the guilt of the appellants beyond reasonable doubt. Thus, appeals filed by the appellants Najibullah and Muhammad Ashraf are hereby dismissed, and the convictions and sentences awarded by the learned trial Court are maintained.

JK/12/Bal. Appeals dismissed.