MAQBOOL AHMED Versus STATE

JUSTICE SHAFIUR RAHMAN (CHAIRMAN). ‑‑‑An appeal has been filed by the convict Maqbool Ahmed against his conviction under section 302, P.P.C. and sentence of death as Qisas and under section 201/511, P.P.C. and sentence of three years' R.I. thereunder by Special Court for Speedy Trials No.1; Lahore, by its judgment dated 24‑5‑1992.

2. The prosecution case against the appellant, his wife Mst. Naziran Bibi and his son Falak Sher alias Bagga aged 14 years as disclosed at the trial was that about 2‑1/2 years before the occurrence in December, 1988, a case was registered against the appellant under section 326, P.P.C. and under the Arms Ordinance at the instance of Mian Ghulam Rasul and others ‑ first cousins of one Arshad Ali Gujar. In that case the appellant was acquitted. In this background of enmity, on the 10th of December, 1988 at about 9‑00 p.m., the appellant was taken on a pretext to the Dera of aforesaid Arshad Ali Gujar where he and his associates Ghaus and Ghaffar inflicted knife injuries and cut off his hand from the wrist. The appellant reported this occurrence at the Police Station vide F.I.R. No.369 dated 11‑12‑1988, Police Station Sangla Hill, District Sheikhupura. The police during the course of the investigation declared the named accused innocent, got them discharged and instead Ghulam Rasul and Rehmat Ali the two brothers of Mst. Mukhtar Bibi (P.W.5) were involved in the case. Not satisfied with the investigation, the appellant filed a complaint against the named accused Ghaus, Ghaffar and Arshad Ali Gujjar for that offence and imputed therein that the Police had falsely got the named accused declared innocent and substituted by the persons against whom he has no grievance. We are informed that the Police case as well as the complaint resulted in acquittal; the complaint on account of compromise entered between the appellant and two brothers of Mst. Mukhtar Bibi.

3. On 5‑5‑1989, Muhammad Ghufran, a Gujjar and brother of Ghaffar and Arshad the named accused lodged a case against the appellant for having inflicted incised wounds on his person.

4. In this background of enmity it is said that Rehmat Ali and Ghulam Rasul the two brothers of Mst. Mukhtaran Bibi (P.W.5) had left the village, gone to Karachi and remained there for a number of years and had come back and settled in the neighbouring Chak. In the meantime, the appellant had contacted friendship with Imam Din deceased, a son of Mst. Mukhtaran Bibi which was not suspected. On the night of 18‑19th of the September, 1991, at about Isha time when Siddique (P.W.6) and Bashir (not produced) were present at the house of Mst. Mukhtaran Bibi (P.W.5), the appellant is said to have taken the deceased alongwith him. In the morning, when Mst. Mukhtaran Bibi (P.W.5) found that Imam Din had not returned to the house, she went to the house of the appellant Maqbool Ahmed and what she found there has been narrated by her in the following words:‑‑

"On reaching the house, I saw Bagga accused jumping out the wall and I asked him that his father had brought Imam Din, where was he? He just signalled in the air that he had gone to enjoy V.C.R. and ran away. I got suspicious. I went inside the house and found the door with blood stains. When I entered the room, my son was lying injured with Churris and dead body in blood bath. It has also been put on fire."

She went to the Police Station and lodged the report about the occurrence with Muhammad Ashraf (P.W.9) at 6‑00 a.m. He went to the spot, conducted the investigation, found the dead body of Imam Din with incised injuries and burnt marks on it. He also recovered plastic bottle (P.6), Soda Water bottles (P.7 and P.8) and Chaddar blood‑stained (P.9). He arrested the appellant and his wife on 25‑9‑1991 and found injuries on their person which were got examined from the doctor Muhammad Naseer Ahmed (P.W.10). On the 26th of September, 1991 he claims to have got recovered from the same house the dead body of Remat Ali alias Piar Ali, brother of Mst. Mukhtaran Bibi.

5. The doctor who performed autopsy on the body of Imam Din found in all 13 injuries on his person mostly incised and burnt. Maqbool Ahmed/appellant had the following injuries on his person when examined on 25‑9‑1991:‑‑

"(1) An incised wound 11 x 1/2 x 1 cm on the palm of the right hand.

(2) .An abrasion 2/1‑2 x 3/4 cm on the right hand 3 cm above Injury No.1

(3) Three scarred abrasions on the right elbow."

Mst. Naziran Bibi had the following injury:‑

"(1) A wound 4‑1/2 x 3/4 x 1 cm on the right forearm just above the right wrist."

6. At the trial, an eye‑witness of the occurrence (Din Muhammad P.W.7) was also produced. About the occurrence he stated as hereunder:‑‑

"On it I reached the house of the accused. The main gate was closed, the fourwall was not very high and I jumped inside. Maqbool accused and his wife Mst. Nazeeran accused with blood‑stained clothes were present in the door of their room. Maqbool accused was also having a blood stained Chhurri and his hands were also blood‑stained. I asked Maqbool about Boota whereupon he gave a filthy abuse (which the witness has stated) and told me to go away otherwise he would meet the same treatment which had been meted out to Imam Din. An earthen Deewa was on and I saw Imam Din with convulsions in the room."

In the cross‑examination he made the following admission:‑‑

"It is correct that the main gate of the house of the accused is without planks The police had called my nephew Boota and Kaloo Masih. They were hauld up by the police and taken to the police station. It is correct that in the first instance both of them were suspected by the police as murderers. It is correct that whole of the village collected and appeared in defence of them before the police. I had assured the members of the Punchait as to the innocence of Boota and Kaloo Masih. When Boota and Kaloo Masih were let off by the police then I was made a witness."

7. The appellant, his wife and son all denied the motive, their participation in the occurrence, the recoveries attributed to them and their involvement in the occurrence. The appellant explained the case against him by stating as hereunder:‑‑

"Rehmat Ali, Ghulam Rasool, Imam Din deceased, Boota Merasi, Sarfraz alias Rafi Constable alongwith Mubarik Ali Lamberdar and his son Munawar are all engaged in Narcotics business. As my house was lying deserted it was used for their nefarious activities. Due to enmity, I have been falsely involved."

8. On the evidence and other material brought on record, the trial Court recorded the following conclusions:‑‑

"(i) At the time of the present occurrence ostensibly, therefore, there was no element of enmity between Maqbool accused and the deceased or the complainant.

(ii) This evidence is sufficient to conclude that Maqbool accused was living at his house in the Chak of occurrence even during the days of occurrence.

(iii) When he was subjected to sharp‑edged as well as blunt weapon injuries at the house, he must have resisted, his arms were having many sharp‑edged injuries and so the possibility that in the process Maqbool accused also received injuries, cannot be entirely ruled out. This is a substantial corroborative factor against him.

(iv) The medical evidence, therefore, corroborates the evidence of last seen provided by these two witnesses that he was taken along at about Isha prayer time. This is also a corroborative factor against Maqbool accused.

(v) He (Din Muhammad P.W.7) is thus clearly a false, concocted and cooked up witness. His testimony is, therefore, completely kept out of consideration.

(vi) Thus one can easily say that the F.I.R. was not recorded at the police station and in the moment it purports to have been or at 6‑00 a.m. and, that it was recorded at the spot after preliminary investigation:'

Can these findings the trial Court concluded the judgment as hereunder:‑‑

"The upshot of the above discussion and conclusions is that the evidence as to motive, last seen, the recovery of dead body with blood stained Chhurri and clothes from the house of the accused in the morning and the medical evidence coupled with all the attending circumstances, is sufficient to conclude the charge of murder and attempt to destroy the evidence (by setting on fire the dead body) against Maqbpol accused. He is, convicted accordingly and is sentenced to suffer death as Qisas under section 302, P.P.C., and a sentence of three years' R.I. under section 201/511, P.P.C. Mst. Naziran Bibi and Falak Sher accused are granted the benefit of doubt and are acquitted. They be set at liberty forthwith, if not required to be detained in any other case."

9. There are three patent illegalities in the judgment of the trial Court:

In the first place, having disbelieved the existence of motive, the trial Court could not have utilised it as it did in the concluding portion of the judgment for arriving at the guilt of the accused/appellant.

Secondly, having entirely disbelieved Din Muhammad (P.W.7) and there being no required number of witnesses under the Injunctions of Islam (two witnesses), punishment of death as Qisas under section 302(a), P.P.C. could not be imposed. It had to be under section 302(b) ,P.P.C. under Ta'zir.

Thirdly, the trial Court after convicting the appellant has not; as required by mandatory provision of section 544‑A of the Criminal Procedure Code, imposed any fine or compensation to be paid to the heirs of the victim.

10. There are three features of the prosecution case which make it unfit for proving the guilt of the appellant. The first is that motive, and a satisfactory one, always plays an important part in any case dependent on entirely circumstantial evidence. In Wharton's Criminal Evidence 13th Edition by Charles E. Toricia (Volume I) at page 316 the following relevant passage occurs:‑‑

"Proof of motive is not required because motive is ordinarily not an element of a crime. Nevertheless, the prosecution may find it useful to produce evidence of motive in order to confirm the conclusion reached from the other evidence that it was in fact the defendant who had committed the offence charged.

Ordinarily, evidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant.

An inquiry as to motive is often of great importance, particularly in a case resting upon circumstantial evidence. It may be helpful in fixing the crime upon the proper person and, in some cases, is strongly instrumental in determining the decree of the offence. As motive is ordinarily not an element of the crime charged, evidence of motive does not establish guilt, nor does lack of motive establish innocence."

11. The importance of motive in circumstantial evidence case was also emphasised in Karamat Hussain v. The State 1972 SCMR 15 at p.19 in the following words:‑‑

"If the extra‑judicial confessions are disbelieved, and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant. In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused. In the present case, this test is by no means satisfied. The circumstances by themselves are neither sufficient to bring home the guilt to the accused nor are they of such a nature as to carry conviction."

In the case of Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515 at p.520 the following observations relevant to the case appear:‑‑

"On a balance of the decided cases it appears that the circumstances of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company."

12. In the present case, not only the evidence attributed to the appellant with regard to the motive was totally irrelevant but it, on the other hand, showed that there was absolutely no reason for such an enmity, and the enemies of the appellant were Gujjars who had implicated him in the crime and whom the appellant had been implicating in crime in a series of cases , registered at the police station, the Police assisted the Gujjars against the appellant.

13. Secondly, in a circumstantial evidence case it is necessary that the prosecution's role of collecting the evidence against the accused should be free from doubt and suspicion. In this case there are four reasons to doubt the role of the Investigating Agency.

In the first instance, the motive theory adopted by the prosecution was far‑fetched, irrelevant and repudiated the case of the prosecution instead of supporting it.

Secondly, as held by the trial Court, the F.I.R. was recorded after preliminary investigation.

Thirdly, the preliminary investigation resulted in the implication of two others (Boota and Kaloo) who were extricated at a price. Such a course of the investigation could not have taken place if Mst. Mukhtaran Bibi had seen and reported what is contained in the F.I.R. because there was left no occasion for bringing in Kaloo and Boota as accused in the case.

Fourthly, the putting forward of such an unreliable eye‑witness (Din Muhammad P.W.7) and procuring him under duress by the Investigating Officer has to be most deprecated.

14. On the subject of the dependability of the investigation, in the case of Fazal Elahi alias Sajawal v. The Crown PLD 1953 FC 214 at p.223 it was observed that "where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference."

15. Third feature relates to the recovery of dead body. As regards the recovery of the dead body from tile house of the appellant, the evidence is most uninspiring. The inquest report form is a printed document which contains a specific question which has to be answered by the Investigating Officer as to what he found around the dead body or the place where it was found. There is nothing in that document which was promptly prepared to show that there were any indications of the place being used as residence. Next followed another statutory duty of the Investigating Officer of which the record was maintained' and was contemporaneously prepared. It was a record of the inspection of the spot. Even that does not contain any indication that there were articles in the house which could give the impression of it being inhabited at the relevant time. It is at the trial and in cross‑examination that the Investigating Officer said that he found some utensils there and that was not from the record but against the record. The Draughtsman Khalid Mehmood (P.W.3) who visited the, place for preparing the site plan on 24‑9‑1991 said "no household articles were lying in the room of occurrence". Such evidence coming from prosecution itself would lend much support to the defence version that in view of the established enmity of the Gujjars and of the hostility of the police, he had left the village.

16. The defence version with regard to the abandonment of the residence also found support from the uninspiring statement of Mst. Mukhtaran Bibi (P.W.5) who made the following statement:‑‑

"I do not know whether Maqbool accused is married. It is correct that about a year before the present occurrence he had shifted his residence to his in‑laws in Kharrarianwala. Again said that he had only left his family over there but himself was living in our Chak. When I reached the house of the accused its gate was not chained from inside. When I pushed the gate it opened. It is incorrect that none of the accused was present there. I had seen Bagga there. The whole village had collected at the spot.. I did not lose my consciousness on seeing the dead body. I myself left for the police station alongwith Sultan Lambardar by a bus."

17. The recovery of the dead body of Rehmat Ali on 26‑9‑1991 has been mentioned without there being proper evidence on record as a piece of corroborative evidence but what is surprising is that the whole village having visited the spot on 19‑9‑1991 and even the Draughtsman having visited the spot on 24‑9‑1991 and the accused having been arrested on 25‑9‑1991, the recovery of the dead body next day should be looked at as a corroboration implicating the appellant in this case. It cannot be.

18. On the examination of the entire evidence and material brought on record, I find that the motive is completely non‑existent. The investigation was designedly hostile to the appellant and the evidence ocular and circumstantial is uninspiring. The requirement of proof in such cases is that every link has to be proved by good and convincing evidence. In the circumstances, it is not a case where the conviction of the appellant could take place either under section 302, P.P.C. or under section 201/511, P.P.C.

19. We accept the appeal, set aside the conviction and sentence of the appellant and direct that he be released forthwith from prison if not required in any other case.

(Sd.)

CHAIRMAN

(Sd.) (Sd.)

MEMBER MEMBER

JUSTICE ABDUL MAJID TIWANA (MEMBER II): ‑‑I have had the benefit of going through the preceding judgment written by the learned Chairman and concurred by the learned Senior Member of this Court. With utmost respect to the conclusions reached by them, I am of the view that on the basis of reliable circumstantial evidence led by the prosecution, the murder charge against the appellant stood proved beyond any shadow of doubt and his appeal is to be dismissed to that extent. The circumstantial evidence so led against him consists of motive, `last seen', recovery of two dead bodies from his house'(one unearthed at his instance), and his own unexplained injuries:

2. Before dilating upon the reasons for the above conclusion, I would like to recapitulate the relevant facts. The prosecution case, as it gleans out from the statement of Mst. Mukhtaran Bibi complainant, the widowed mother of Imam Din (deceased), embodied in the F.I.R. and reiterated by her at the trial, is that about three years prior to her son's murder, her brothers Ghulam Rasul and Rehmat Ali alias Piar Ali were arrested by the police in a case registered at the instance of Maqbool appellant but persuant to a compromise effected by them, they were acquitted. Despite all this, her brothers, on account of the enmity, migrated from the village and the appellant cultivated friendship with her son Imam Din (deceased) and they became on visiting terms with each other.

3. In this background, on 18‑9‑1991 at about Isha Wela when she was present in her house alongwith her son Imam Din (deceased) and her relations Muhammad Siddique and Bashir Ahmad P.Ws., Maqbool appellant came there and took her son with him. Her son did not return to the house during the night and she got worried. In search for him she went to the house of the appellant early in the morning but did not find anyone present there. When she entered the residential room of his house, to her surprise, she saw the charred dead body of her son Imam Din lying in a pool of blood, having a number of injuries. She then went to the police station and lodged the report, suspecting Maqbool appellant, his wife Mst. Naziran Bibi and his son Falak Sher alias Bagga for the murder.

4. After the registration of the case, Inspector/S.H.O. Muhammad Ashraf (P.W.9) came to the spot where he prepared the injury statement and inquest report of the dead body of Imam Din and sent into the mortuary for post‑mortem examination. He seized blood‑stained earth, a blood‑stained burnt `Chhurri', a plastic bottle of kerosine oil, two bottles of soda water, a blood‑stained Chaddar and burnt pieces of clothes, all lying near the dead body. On 25‑9‑1991 he arrested Maqbool appellant and his wife Mst. Naziran (acquitted accused) and since they had injuries, he got them medically examined. On 26‑9‑1991 Maqbool appellant, while in custody, got recovered the dead body of Rehmat Ali alias Piar Ali (the brother of Mst. Mukhtaran Bibi complainant) from the courtyard of his house and the Inspector registered a separate murder case against him. On 30‑9‑1991 he arrested Falak Sher alias Bagga (acquitted accused), the son of the appellant. In this way he completed the investigation, and sent up all the three accused for trial.

5. On the commencement of the trial before the Special Court, to which the case was transferred by the Federal Government (without passing any order about the second case which, in my opinion, should also have been tried and decided alongwith the one giving rise to this appeal, in order to avoid prejudice to either party in each case), the appellant and his acquitted co accused were charged for the murder of Ahmad Din as also for causing disappearance of evidence. On their pleading not guilty, the prosecution led evidence against them by producing as many as ten witnesses. Prominent amongst them were Inspector Muhammad Nasim of C.I.A. Staff, Sheikhupura (P.W.4), Mst. Mukhtaran Bibi complainant (P.W.5), Muhammad Siddique (P.W.6), Din Muhammad (P.W7), Inspector Muhammad Ashraf (P.W. 9) and Dr. M.Naseer Ahmad (P.W.10).

6. To be a little more precise, Inspector Muhammad Nasim (P.W.4), whose statement is relevant to the motive, deposed that on 11‑12‑1988, when he was S.H.O. of Police Station (Saddar), Sangla Hill, he had registered case: F.I.R. No.369 (Exh.PC) at the instance of Maqbool appellant and had challaned Rehmat Ali, alias Piar Ali and his brother Ghulam Rasul caste Arain of Chak No.41 (brothers of the complainant) as accused. In the cross -examination he explained that Ghaffar and Arshad Ali, caste Gujjar of the same village were named as accused in the said case but having found them innocent, got them discharged. He admitted that Ghaffaran, a brother of Ghaffar aforesaid, had reported against Maqbool appellant and case: F.I.R. No.124 was registered against him on 5‑5‑1989. The next witness was Mst. Mukhtaran Bibi (P.W.5). Her role as complainant in the case has already been outlined. Her statement shall be subjected to detailed appraisal in due course. Muhammad Siddique (P.W.6), a cousin of the complainant, corroborated her on the evidence of the `last seen' by deposing that in his presence the appellant had taken away Imam Din (deceased) from the latter's house at about Isha Wella during the fateful night. He was also a witness of the recovery of various articles available on the spot in the vicinity of the dead body and deposed accordingly. In reply to a question of the defence counsel he stated that one cot was lying inside the room and one cot with a bedding on the roof of the house of the accused when he reached there at 6‑7 a.m. There was no' infirmity in the testimony of this witness except that he was related to the complainant party. He was believed by the trial Court and I am also inclined to rely on him.

7. The next witness was Din Muhammad (P.W.7). He deposed that during the night of occurrence, about half an hour after the Isha prayer, when he was present in his house, his nephew Muhammad Rafi told him, with reference to the alarm being raised by the urchins, that his nephew Boota was being injured by the appellant and on the receipt of this information he went to the house of the appellant. According to him, he found the main gate of the house closed and since its boundary wall was not very high, he jumped into the courtyard and saw the appellant and his wife present in the door of their room with their clothes stained with blood and the former holding a Chhurri in his besmeared hand. He further stated that when he asked the appellant about Boota, he gave him a filthy abuse and told him to go away or he would meet the same treatment which he had meted out to Imam Din whom he saw convulsing. He deposed that he left his house and did not tell the incident to anyone until he was called by the police on the following day on the receipt of an information that he had been abused by the accused during the preceding night. In the cross‑examination he stated that he did not pick up the courage to inform anybody in the village, including Muhammad Rafi informant, who was a police constable, about the night incident because when the appellant threatened him with a Chhurri, he had even lost his senses "

In reply to a question of the defence he deposed that the police had hauled up his nephew Boota and Kaloo Masih and taken to the Police Station as in the first instance they both were suspected for the murder but they were assured of their innocence by a `Punchait' and when they were let off, then he was made witness in this case. He testified that he did not know as to why the police had suspected his nephew Boota and Kaloo Masih.

8. Appearing as (P.W.9), Inspector/S.H.O. Muhammad Ashraf gave the details of the investigation. The role played by him as such has already been described. In reply to a question in the cross‑examination he deposed that the bottles, the burnt pieces of clothes and Chhurri (which he had seized from the spot) were not mentioned by him in the inquest report. In response to a question of the defence, he stated that he had seen a few utensils and an ordinary type of articles in the house but no furniture or big boxes. He repudiated the suggestion of the defence that he had arrested the accused (the appellant and his wife) on 20th and after giving them beating he got them medically examined. He also denied a suggestion that in the first instance he had arrested some other persons, including one Boota, and then let off and involved the accused on suspicion.

9. The last witness was Dr. M. Naseer Ahmad (P.W.10). He had conducted post‑mortem examination on the dead body of Imam Din. He gave the details of 13 injuries located on different parts of it. Out of these injuries, three were caused by a, blunt weapon and the rest were incised wounds, including the one located on the lower part of the right thigh just above the right knee joint, with right femour on the lower part completely cut. He stated that, excepting the face and the head, rest of the dead-body stood almost extensively burnt. He was of the opinion that the mechanical injuries caused by blunt and sharp‑edged weapon were ante‑mortem, wile the burns were post mortem. He proved the post‑mortem report (Exh.PM) and the diagrams of injuries (Exh.PM/1).

10. He testified that on 25‑9‑1991 he had medically examined Maqbool accused (appellant) and his wife Msi. Naziran Bibi accused at the instance of the police and found the following injuries on the former:‑‑

(1) An incised would 11 x 1/2 x 1 cm on the palm of right hand.

(2) An abrasion 2‑1/2 x 3/4 cm on the right hand 3 cm above injury No.1.

(3) Three scarred abrasions on the right elbow.

11. According to the doctor, injury No.1 was caused by a sharp‑edged weapon, while the other two injuries by a blunt object, simple in nature, within the duration of 5 to 10 days. He proved the medico‑legal report (Exh.PQ). On the person of Mst. Naziran Bibi accused he found only one injury‑‑‑a wound 4‑1/2 x 3/4 x 1 cm on the right forearm just above the right wrist. In his opinion, it was an injury of simple nature caused within the duration of 5 to 10 days. He, however, could not determine the nature of the weapon.

12. The appellant and his acquitted co‑accused, in their respective statements recorded under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence.

13. Maqbool appellant, in his statement so recorded, replied question No.2 in affirmative. In this question he was asked whether he along with members of his family resided at Chak No.41 P.S. Sangla Hill where Mst. Mukhtaran Bibi complainant and her brothers Ghulam Rasul and Rehmat Ali alias Piar Ali also resided? However, in reply to question No.7 relating to the absence of Imam Din (deceased) from his house during the night of occurrence and his dead body having been found in his residential room, he stated that he had no house in the Chak of occurrence: Despite this, in reply to question No.5 concerning the acquittal of Ghulam Rasul and Rehmat Ali alias Piar Ali and his establishing friendship with Iman Din (deceased) he gave the details of his animosity with Gujjars of Chak No.41 and added that in a case lodged against him by Ghaffaran Gujjar when he was bailed out after six months of his detention (as an undertrial), he left the village 13‑14 months before the present occurrence and shifted his residence from the Chak to Khurianwala where he was residing during the days of occurrence. In question No.13 when he was asked to explain his injuries, he stated that when the police hauld him up in this case, he was given a push to sit in the venicle and his hand fell on its floor as a result of which he was injured. About the recovery of the dead body of Rehmat Ali alias Piar Ali at his instance from the courtyard of his house, where it alledgly stood buried, he stated that when he was brought to the Chak by the police accompanied by Mubarek Ali Lamberdar, a maternal uncle of Ghaffaran and Ghaffar Gujjar, he was made to sit under `Keekar' tree at a distance of half an acre away from his house and there he was told that dead body of Rehmat Ali alias Piar Ali had been recovered from his courtyard. In reply to a question as to why he was involved in this case, he stated that Rehmat Ali, Ghulam Rasul, Imam Din (deceased), Boota Marasi, Sarfraz alias Rafi constable alongwith Mubarek Ali Lamberdar and his son, all were engaged in narcotics business and as his house was lying deserted, it was used by them for their nefarious activities and due to enmity he had been falsely implicated. He produced no defence, except that he brought on the record the copy of complaint (Exh.DD) file by him against Ghaus, Ghaffar and Arshad Ali Gujjar under section 307/326/34, P.P.C. and copy of his preliminary statement (Exh.DE) recorded by him in the said complaint case. He explained that his hand had actu4lly been cut by the Gujjars and they were reported against by him but they were let off, by the police and he filed the said complaint against them. He stated that Rehmat Ali alias Piar Ali (brother of Mst. Mikhtaran Bibi complainant) was challaned but his mother approached him and he made his statement on the third day in the Court of Mr. Imtiaz Ahmad' Magistrate Section 30 and he was acquitted. Mst. Naziran Bibi wife the acquitted accused and wife of the appellant in her statement adopted most of the answers of her husband. However, with regard to her injury detected during her medical examination after her arrest by the police she stated that she used to work in the houses of different people on payment and while handling the utensils the same fell upon her hand and she was injured.

14. On the conclusion of the trial, the learned Special Judge, vide his judgment, dated 24‑5‑1992, after acquitting Mst. Naziran Bibi and Falak Sher alias Bagga co‑accused on benefit of doubt, convicted Maqbool appellant under section 302, P.P.C. and sentenced him to death as Qisas. He also convicted him under section 201/511, P.P.C. and sentenced him to three years' R.I. Aggrieved by these findings, he has come up in appeal to this Court.

15. During the course of argument before us, the learned counsel for the appellant first of all attacked the findings of the learned trial Judge on the question of motive. He contended that in paragraph No.12 f the impugned judgment the learned Judge came to the conclusion that there was no element of enmity between Maqbool appellant and the deceased of the complainant but, curiously enough, in paragraph No.17 thereof he mad the evidence of motive, besides other items of proof, as the basis for the appellant's conviction. According to him, there was serious animosity between the 'appellant and the Gujjars and when the former's hand was cut by the latter and a case was registered against them, the police, after declaring them innocent, challaned the brothers of the complainant but they were got acquitted by the appellant as they were not his enemies. There was, therefore, no reason for him to have killed Imam Din (deceased), with whom, according to the prosecution, he had rather fast friendship, he added.

16. It is an admitted position that Ghulam Rasul and Rehmat Ali alias Piar Ali, the brothers of Mst. Mukhtaran Bibi complainant, were challaned by the police in the case registered at the instance of the appellant 'against Ghaffar and two others, the Gujjars of Chak No.41, vide FIR No. 369 dated 11‑12‑1988 and they were acquitted persuant to a compromise reached between them and the appellant, as the latter blamed the Gujjars for cutting his ft hand, and dis satisfied with the investigation of the police, he had even brought a complaint against them. No one knows as what were the actual terms of compromise. However, their acquittal at the instance of the appellant indicated that either they had patched up their differences, if any, or they had differences at all till that time. Between their acquittal and the occurrence giving rise to this appeal, a period of about three years intervened. The prosecution case is that during this period a serious animosity developed between them and the appellant as a consequence of which they had even to leave the village. This fact finds clearly mentioned in the unchallenged statement of Mst. Mukhtaran Bibi complainant on this point and even the defence accepted it in more clear terms as it appears from her statement in the cross‑examination made on the suggestion of the defence counsel i.e. "It is correct that my brothers and Maqbool accused were fast friends and then developed enmity". The recovery of the dead body of Rehmat Ali alias Piar Ali from the courtyard of the house of the appellant, obviously at his instance during the investigation of this case, by itself is a strong circumstance to prove the subsequent animosity between the erstwhile friends and consequently the motive part of the prosecution story. Here it can be said that if at all there was any enmity, it was between the appellant and the maternal uncles of Imam Din (deceased) and there was no enmity between him and the deceased himself. There can be no substance in this suggestion. The prosecution case from the very inception was that the appellant cultivated friendship with the deceased. It suggested a device on the part of the former with a view to entrap him for taking revenge from him for his animosity with his maternal uncles who were perhaps not available to him due to their migration from the village. It is a matter of common observance, especially in the rural life, that if the real enemy for any reason is not accessible, the r6venge is taken from his relations. It is even otherwise quite in consonance with the human behaviour based on maxim‑‑the friend of one's enemy is his enemy and a friend of one's friend is his friend. Thus there was nothing unusual, if the appellant thought proper to kill Imam Din (deceased) in order to satisfy his malice against his maternal uncles. So, in my opinion, the motive in this cash stood amply proved and it was neither irrelevant nor far fetched.

17. Assuming for the sake of argument that. the motive in this case, as held by the learned Chairman, was far‑fetched, even then it did not impair the prosecution case. A paragraph quoted from Wharton's Criminal Evidence in paragraph No.10 of the judgment by itself says that `Proof of motive is not required because motive is ordinarily not an element of the crime'. After stressing the importance of motive in circumstantial evidence (which portion, has been underlined), it further says that "As motive is ordinarily' not an element of crime charged, evidence. of motive does not establish guilt nor the lack of motive establishes innocence". In human society the motiveless murders are not uncommon and the prosecution in many such cases has not failed merely‑on account of lack of motive. Thus, in the instant case, even if the motive was far‑fetched, even then it did not make much difference because it was not a sine quo non for establishing guilt of the appellant.

18. The next contention of the learned counsel for the appellant related to the role of Investigating Agency. He urged that Inspector Muhammad Ashraf P.W. registered the se after holding preliminary investigation and associated Boota and Kaloo with the investigation as suspects and then let them off in lieu of his citing Din Muhammad (P.W.7) as a false prosecution witness. In this connection the learned counsel has tried to derive support from the findings of the trial Court. To my mind, there is no substance in this contention either.

19. For any act of omission or commission, deliberate or inadvertent, of a State functionary, as Inspector Muhammad Ashraf was, the complainant party is not to suffer. Unfortunately we have hitherto been identifying the Investigating Agency or the Investigator with the complainant party and merging them with the State and the State as the prosecutor on the theory that all offences are against the society represented by the State. For this reason any fault on the part of Investigating Agency has been adversely affecting the rights of individuals constituting complainant party. This was all dogmatic and did more harm than good to the administration of justice. Fortunately, there has been a radical change in this conceptual fallacy, having been recently brought about. with the enactment and incorporation of new law generally known as `Qisas and Diyat Law' in our Penal Code. The emphasis has shifted from collectivism of the State to the individualism of the person aggrieved. In other words, the offence which previously used to be considered as a wrong against the society or State, after the enactment of the said law, is now considered as a wrong against the individual or individuals directly affected thereby. In view of this conceptual change, we have to bring about a consequential change in our methods of administration of justice. In this context if Inspector/SHO Muhammad Ashraf (P.W.9) made a procedural mistake of holding preliminary investigation before recording the statement of Mst. Mukhtaran Bibi for the formal registration of the case or he cited Muhammad Din (P.W.7) as a witness, why she and her relations should suffer by considering it as a ground for exenorating the appellant from his criminal liability which could be proved by other evidence? He was only an evidence collecting agency and let us see the evidence he had collected and its intrinsic value. Similarly, his association of Boota and Kaloo Masih with the investigation of the case as suspects, which fact he has emphatically denied during his cross‑examination, should not impair the prosecution case. In fact a finding to that effect is based on the discarded testimony of Din Muhammad (P.W.7) who appears to have tried to please both the sides.

20. Imam Din (deceased) was a well built young man of 20 years of age and ordinarily he could not be killed by one man alone. If proceeding on this assumption Inspector/SHO Muhammad Ashraf P.W. suspected the aforesaid two persons and associated them with the investigation of the case, it did not mean that they were the real culprits and the appellant, in whose house the dead body was found lying, was innocent or that this fact alone created suspicion against his being the real killer. During the course of investigation, particularly in a case of a blind murder, like the present one, the. police associates a number of persons to find the real culprits, and there was nothing unusual if he adopted this course.

21. The perusal of the statement of Din Muhammad (P.W.7) would show that in the examination‑in‑chief he supported the prosecution but in the cross -examination he went out of the way for the defence by conceding every possible suggestion that was put to him by the defence counsel. Being a barber by caste and a `Moeen' of the village he appeared to be under the pressure of both the sides and for that reason he tried to please both of them, otherwise he did not appear, to be altogether a false witness. The house of the appellant, as per Draftsman, was situated towards the north of village Abadi at a distance of 100 feet away from it and a young man being killed in it by Chhurri blows must have raised hue and cry, more audible at night at long distances. It was, therefore, not possible that this occurrence should have remained altogether undetected by the villagers but perhaps due to the fear of the appellant, who, as is apparent from the statement of Mst. Mukhtaran Bibi complainant in the cross‑examination, was engaged in criminal activities and people did not dare to come out against him, even Din Muhammad (P.W.7) seems to have succumbed under his pressure. In these circumstances, his testimony could be discarded but it should have no reflection on the Investigating Officer for citing him as a witness.

22. Another contention raised by the learned counsel for the appellant was that the appellant and his family, out of the fear of animosity of the Gujjars, had left the village about a year or so prior to the occurrence and had settled at Khurianwala and as such he was not liable for the presence of ‑dead body of Imam Din in his deserted house. In this connection he has referred to the statement of the appellant recorded under section 342, Cr.P.C as also the statement of Mst. Mukhtaran Bibi in the cross‑examination. There is no force in this contention as well. The statement of the witness on a particular, fact is to. be read as a whole. Mst. Mukhtaran Bibi in reply to a question of cross -examination did admit that the appellant about a year prior to the occurrence had shifted his residence to his in laws at Khurianwala but in the next sentence she immediately clarified that he had only shifted his family members and he himself was residing in the Chak. There is no reason why only the first part of her statement should be believed and the later part of her statement should be discarded or not considered at all. Her later part of the statement finds ample corroboration from the unchallenged statement of Muhammad Siddique (P.W.6) who was associated with the investigation and had witnessed the recovery of certain articles by the police from near the dead body. In the cross -examination he had stated in very clear terms that one cot was lying inside the room and the other with a bedding on the roof of the house when he witnessed the recovery being effected by the police at 6‑7 a.m during spot inspection. This fact goes a long way to show that at least the appellant himself was residing in the house. It also finds support from the statement of Inspector/SHO Muhammad Ashraf (P.W.9) who in the cross‑examination stated that he had seen a few utensils and ordinary type of articles lying in the house at the time of spot inspection but no furniture or big boxes. The appellant decidedly being an ordinary labourer, how there could be furniture and big boxes in his house? But if at all he had any, he could have shifted the main items of the luggage to the house of his inlaws, which was in the same area, and himself resided there, more with a view to commit crimes than for any other purpose. The dead-body of Imam Din was found lying in his house while the dead body of Rehmat Ali alias Piar Ali was found buried in the courtyard of this very house over which he had the scene always. How, he could leave it to be used by his enemies for criminal activities?

23. Learned counsel criticised the statement of Muhammad Ashraf P.W. on this point on the basis of the omission having been made by him in the relevant column of the inquest report. Stress has also been laid on this omission in the judgment of my learned brothers. The articles mentioned by him were not entered in the inquest report as they had apparently no nexus with the dead body or with the crime committed. A perusal of the inquest report would show that column No.22 was altogether left blank by him. He did not enter even the bottles, the blood‑stained Chaddar and the burnt blood‑stained Churri which he collected during the spot inspection, vide recovery memo. (Exh.PG) and (Exh.PE), about which there could be no doubt. Thus the omission on his part to enter certain articles in the inquest report appears to be either due to his lack of knowledge or inadvertent omission and this cannot be made a ground for drawing an inference that his statement about the presence of certain articles in the residential room was false and the appellant did not reside there.

24. The last contention of the learned counsel for the appellant was that his client had plausibly explained his injuries which he suffered at the hands of the police. The learned trial Judge considered the injuries on the person of the appellant as a very strong circumstance against him. However, the learned Chairman in the judgment did mention this aspect of the matter in paragraph No.8 (III), which is a narrative part thereof, but did not discuss it further nor did he record any findings thereon. I am inclined to agree with the views of the trial Court that the appellant suffered these injuries while inflicting Chhurri blows on the deceased. There were as may as 10 incised wounds on the dead body, some even indicating the striking of bone. In the process the grip on the handle of the Chhuri could loosen especially when it struck‑the harder part like fumer bone of the thigh and the backside of the handle, and blade of the Chhuri could cause the injury on his plain which was of sufficient dimension. It could not be caused by a fall over the floor of the police vehicle, as he alleged. Besides, he had scabbed abrasions on the elbow for which he furnished no explanation. The duration of these injuries, as given by the Medical Officer, synchronised with the time of occurrence and went a long way in proving his participation in the occurrence, resulting in the death of Imam Din. The presence of blood‑stained burnt Chhurri in the immediate vicinity of the dead body itself was also a corroborative factor in this regard.

25. In view of the above, I am of the considered opinion that the evidence of last seen, coupled with the evidence of motive, recoveries, medical evidence and the unexplained injuries on the person of the appellant further supported by the recovery of the dead body of Rehmat Ali alias Piar Ali from the courtyard of his house at his instance as also the recovery of the dead body of Imam Din from his house, proved his guilt beyond any shadow of doubt and he deserved conviction and sentence under section 302 (b), P.P.C.‑ by way of Tazir. However, I agree with the observations of the learned Chairman that it was not a case of Qisas. His appeal to the extent of his conviction and sentence for the murder of Imam Din is, therefore, dismissed. However, his conviction and sentence under section 201/511, P.P.C. are set aside for lack of adequate evidence and to that extent his appeal is accepted.

ORDER OF THE COURT

The Court by majority accepts the appeal, sets aside the conviction and sentence.

The appellant shall be released forthwith unless his detention is required in some other case.

N.H.Q./65/SAC Appeal accepted.