MUMAMMAD TAJ Versus THE STATE A.Q. Halepota , A.A. Mohammedally, A . A . -G .

1. SALEEM AKHTAR, J. -- One Dildar reported at Police Station Bin Qasim on 27-4-1982 at 14-00 hrs., that his elder brother Nasim Khan who was living with him and was an employee of Pakistan Steel Mill went to attend his duty on 14-2-1982 in the morning and did not return in the evening. After about three or four days he made inquiries at Pakistan Steel Mill. He inquired from Ehsan Elahi, Javed Ismail, Younus, Mohammad Taj and others who used to work with Naseem but they replied that Mohammad Naseem had not come on duty for the last three or four days. Thereafter he continued to search and thinking that Naseem may have gone to native place in District Mansehra, after a few days he made a telephonic call to his brother Nisar Ahmed who informed him that Naseem had not come to village. The complainant called his brother to Karachi and both started searching missing Naseem. A report that he was missing was lodged on 26-4-1982. Thereafter on the same day he again made inquiries from the same persons but they did not give any correct information. After talking to them he suspected that the aforestated persons with whom Naseem had quarrelled earlier over a boy Taj have committed his murder or kidnapped him with intention to kill him due to personal grudge.

2. After recording the report the S.H.O. made investigation and on 28-4-1987 Mohammad Taj the accused/ appellant herein was arrested. According to the prosecution he pointed out the place where Mohammad Naseem was murdered. The police secured the bones and blood-stained clothes, key chain and other articles from the place of occurrence. The accused also produced blood-stained clothes and a knife before the police from his home. The bones were referred to the Medical Officer who in his report, dated 4-5-1982 stated that they were of a male person approximately aged 20 to 25 years and the death had happened about two or three months before. The appellant was charged under section 302, P.P.C. He did not plead guilty and examined himself on oath. He stated that the deceased was a man of loose character and was in the habit of running after young boys and he had remonstrated him several times. He has, therefore, been involved under suspicion. In order to establish the prosecution case eleven witnesses were examined. The learned trial Court convicted the appellant under section 302, P.P.C. for imprisonment for life and a fine of Rs.10,000 in default R.I. for one year and on realisation of fine, half of the amount shall be paid to the heirs of the deceased. By a separate judgment the learned trial Court convicted the appellant under section 13(e), Arms Ordinance, 1965 and sentenced him toy R.I. for one year. The appellant has filed separate appeals against both the judgments. Criminal Appeal No.186 of 1987 relates to conviction under section 302, P.P.C. and Criminal Appeal No. 187 of 1987 relates to the conviction under section 13(e) of the Arms Ordinance. Dildar Khan the brother of the deceased has filed Criminal Revision No. 186 of 1987 for enhancement of sentence from life imprisonment to death. We propose to dispose of all these three matters by this judgment.

3. The important aspect in this case is that there is no eye-witness to the crime. Mohammad Naseem the deceased was missing from 14-3-1982 and after making inquiries and fruitless search, Dildar lodged a report suspecting four persons including the appellant to have kidnapped and murdered him. According to the prosecution after the appellant was arrested he led the police to the scene of occurrence and on his pointation 46 bones of the deceased were found alongwith clothes, key chain and some coins. The police. prepared two Mashirnamas, one relating to pointation of the place of Vardat and the other one for recovery of bones, clothes and articles etc. The shirt bore a laundry mark which proved that it belonged to the deceased and thus the prosecution has endeavoured to establish that the bones were that of the deceased. In these circumstances the prosecution has mainly relied on circumstantial evidence which were collected piece by piece and according to which the appellant had committed the murder.

4. The evidence relied upon by the prosecution is that the deceased was last seen with the appellant on 14-3-1982. In this regard Dildar P.W. 1 the complainant has stated that he and his brother Nisar Ahmed Khan went to Fazal Sahib Incharge of the deceased who informed them that Nasim was present on 14-3-1982 with the appellant in the morning and both of them had taken tea together, and thereafter, he did not know about the whereabouts of the deceased. Therefore, the information of the deceased having been last seen was conveyed by one Fazal Sahib to the complainant. Fazal Sahib has not been examined and as the statement of P.W.1 is based on hearsay it is, not admissible in evidence. There is no other evidence to show that the deceased was last seen with the appellant. Even if this inadmissible evidence is considered it is a weak and vague evidence as according to the information the deceased was seen in the morning on 14-3-1982 taking tea with the appellant. There is no evidence to show that the deceased was seen with the appellant on way to the jungle where bones were found. There is every possibility that after taking tea both the persons may have separated. Reference can be made to Gulab Khan v. The State P L D 1971 Kar. 299.

5. The second piece of evidence is that the appellant was absent from duty on 15-3-1982. This date seems to be very important from the prosecution point of view. According to prosecution the deceased was last seen on 14-3-1982 with the appellant and thereafter he had been missing and on 15-3-1982 the appellant had not attended the factory. Further the prosecution wishes to press in service the medical report according to which the\possibility of the murder on 15-3-1982 cannot be ruled out. The entire effort of the prosecution is to show that the appellant did not attend the factory on 15-3-1982 and therefore, as he was last seen with the deceased, the presumption should be that he has committed the murder. In order to establish that the appellant was absent, the record of Pakistan Steel Mill where the appellant was employed at the material time has been produced.

6. The prosecution has examined Syed Moosa Askar P.W.2 who is Assistant Manager Administration in Pakistan Steel Mill. He produced time, card Exh.14 signed by him to show that the appellant was not on duty on 15-3-1982. He also stated that on 20th April, 1982 the appellant approached him and gave an application for casual leave on printed form Exh.15 for leave on 15th March, 1982. He stated that on 15-3-1982 he had checked and found the appellant absent. Exh.14 is a card which is punched. It is also signed by the official of the Steel Mill. On 15th March, 1982 it seems to have been punched. The mechanism is such that while, entering, the card is put in the machine which records the time of arrival. At the time of departure similar steps are taken and the departure time is recorded. An examination of this document (Exh.14) will show that it seems to have been punched on 15th and time of arrival and departure was recorded. It was also initialled in the last column in the same manner as against other entries on the card. Significantly the typed timings of arrival and departure as well as the initial in the last column have been obliterated by ink. It is clear that effort has been made to obliterate it by pen. P.W.2 has not explained why such interpolation was made and why the entries made on 15-3-1982 were destroyed. The second document Exh.15 is an application for leave for one day on 15-3-1982. It has not been signed by the appellant and further that it is alleged to have been delivered on 20th April, 1982 i.e. more than one month after the appellant had absented. In the absence of any signature of the appellant on this document it is hardly worthy of credit. The third document is a list of absentee workers on 15-3-1982 (Exh.16) which is typed on a plain paper and signed by some one who has not been examined. The name of the appellant appears at Serial No. 9. P.W. 2 has not explained on the basis of which record this document was prepared. If it is based on time card Exh.14 in respect of which we have discussed above, then the entry with regard to the appellant cannot be relied upon. The next document is Exh.17 the attendance register of the Mill. In this register the attendance of all the workers is shown. Their presence has been shown by making 'P' against their names. In this office register on 15-3-1982, 'P' appears against the name-of the appellant. However, there is a cross mark on 'P' denoting that it has been cancelled, but nothing has been shown on what basis it was cancelled and who has cancelled it. There are interpolations, erasers and destruction of entries in these records, and therefore, such evidence cannot conclusively prove that the appellant was absent on 15-3-1982. Mr. A.A. Mohammedally the learned Assistant Advocate-General contended that the absence of the appellant on 15-3-1982 coupled with other evidence produced by the prosecution point out to the fact that the appellant has committed the murder. He has not relied on documentary evidence with regard to the absence of the appellant on 15-3-1982 and rightly so as it has so many interpolations that it should be discarded. The learned counsel, however, relied on the evidence of P.W.2 but as stated above, the statement of this witness is also based on the aforestated documents which have been produced. Therefore, hardly any weight can be attached to such a statement.

7. The prosecution has laid much emphasis on the recovery of bones at the pointation of the appellant. Abdul Rashid Khan the Investigating Officer has stated that he arrested the appellant in presence of Mashir Nisar and Fida Hussain. The appellant then pointed out the place of Vardat and he prepared memo regarding pointation (Exh.10) on 28-4-1982 at 14-45 hours. He also prepared separately memo of inspection of place of occurrence and seizure Exh.11 on 28-4-1982 at 15-00 hrs. The appellant then led him to his house from where knife, shirt and Shalwar were recovered and Mashirnama Exh.30 was prepared. According to Exh.10 the appellant while in custody led the police and pointed to the bones of deceased Mohammad Nasim. They were lying in jungle behind the hillock at Pipri. Nisar Ahmed and Asif Amin were the witnesses to this Mashirnama. Then another Mashirnama Exh.11 is stated to have been prepared on 28-4-1982 at 3-00 p.m. in the presence of witnesses namely Asif Amin and Nisar Ahmad. In this memo further details of the place of occurrence and recovery of bones, articles and clothes have been mentioned. This memo has been subject-matter of attack by Mr. Halepota on several grounds. The main objection is that this Mashirnama was actually prepared on 27-4-1982 one day prior to the arrest of the appellant but to implicate the accused and to make these recoveries relevant it (Exh.11) has been post-dated as 28-4-1988. According to the learned counsel for the appellant recoveries under Exh.11 were made before the arrest of the appellant, and therefore, it cannot have any evidentiary value against the appellant. In this regard the learned counsel has referred to the original of Exh.11 in which on top of the page at the right hand it seems that first the date was written as 27-4-1982, then the figure ' 7' was changed to '8' to make it 28-4-1982. It is very clear by looking to original of Exh.11. Similar changes were made by the Investigating Officer under his signature and also by witness Asif Amin who had signed the Mashirnama. The prosecution has not explained why these amendments in date were made by Asif Amin and P.W. 12 the Investigating Officer. The Investigating Officer has denied that any change or interpolations were made in the date. This is completely belied by the clear interpolation made in Exh.11 so far the date is concerned. In this regard Mr. Halepota the learned counsel for the appellant has also referred to Exh.20 which is an inquest report. It gives full details, the name, place, time and date of discovery of death and the names of witnesses. It has been signed by Investigating Officer, Asif Amin and Nisar Ahmed. In this document also the date has been changed from 27-4-1982 to 28-4-1982. On the top of Exh.20 figure 27 has been clearly changed to '28'. Under the signature of Investigating Officer and Asif Amin similar changes have been made. Mr. Mohammedally the learned A.A.-G. has contended that Asif Amin .has explained that a wrong date was written by him but he immediately realised the mistake and corrected it as 28-4-1982. However, in this regard Mr. Halepota has referred to the carbon copy of Exh.20 which is in the police file and available with the record before us. We have examined the carbon copy and found that the date under the signature of Asif Amin is mentioned as 27-4-1982. If the explanation given by Asif Amin is correct and the mistake was realised immediately after signing the document and writing the date and it was corrected immediately then similar correction should appear in the carbon copy as well. But it does not reveal such correction. The Investigating Officer has completely denied that he had made any interpolation or corrected any date. Therefore, it is clear that the dates in Exh.11 and Exh.20 were changed afterwards with the intention to prove that the place of Vardat was located and recovery of bones and other articles were made at the pointation of the appellant after his arrest. It is clear that the bones, clothes and other articles of the deceased were recovered on 27-8-1982. Exh.11 supports this contention and conclusion in which it is clearly stated that the Investigating Officer inspected the place of occurrence which was pointed out by the complainant Dildar Khan and thus the clothes and bones were recovered. The Investigating Officer had made Exhs.11 and 12 on 27-4-1982 before the arrest of the appellant. The learned counsel for the appellant contended that this evidence cannot be relied upon and he has referred to Abdul Sattar v. The State P L D 1976 SC 404 where it was observed:- "the prosecution also relied on the appellant's conduct during the investigation immediately after his arrest in that he led the police to the sand dune where the skeleton lay and pointed out the place where the deceased was done to death. This can scarcely be admitted as evidence in the case having regard to the provision of section 27 of the Evidence Act, 1872. The skeleton had already been discovered near the sand dune by Abdul Shakoor who having lodged the information had apprised the police of the discovery, and no fresh discovery was made in consequence of the information received from the appellant."

8. In the present case at the pointation of complainant Dildar the skeleton bones and other articles were recovered and after the appellant was arrested nothing more was to be recovered as a consequence of any information received from the appellant. This piece of evidence therefore, can straightaway be discarded.

9. The next piece of evidence relied upon by the prosecution is the recovery of shirt and Shalwar of the deceased. It has been stated that on the shirt of the deceased there was a laundry mark RI 6639 and this mark was put by the Laundry man on the clothes who has been examined. He has- stated that those clothes were washed by him and some times the complainant and some times the deceased used to come and deliver them to the laundry. This evidence of P.W.4 is not of much consequence as by this shirt only the. bones can be said to be that of the deceased, but it cannot be proved that the appellant has any connection with the commission of the offence. However, this piece of evidence is also challenged by the learned counsel for the appellant mainly on the ground that laundry mark RI 6639 was inserted afterwards by a different ink. It is true that these numbers seem to be written differently, but in the upper part of the memo also the figures 364/34 have been written in the same hand and ink. It seems that while writing the contents of report the writer has written in a different style. The figures have been mentioned boldly. Therefore, on this ground in my view the evidence of P.W.4 cannot be challenged, but as stated above this piece of evidence cannot connect the appellant with the crime.

10. The next piece of evidence which is sought to corroborate the evidence relating to the offence is the arrest of the appellant and recovery of blood-stained knife and clothes on 28-4-1982. From the record it is clear that the appellant was arrested on 28-4-1982. The Mashirnama of arrest Exh.29 does not show the time and place of arrest and nothing was recovered on search from the person of the appellant at that time. According to the prosecution knife and clothes, were recovered from House No. E-7/302 of Pakistan Steel Mill Township where the appellant resided with his brother. In fact the house belongs to the brother who resides there with his family and is jointly occupied with the appellant. According to P.W.12 the appellant led them to the house and took out knife from drawer of a wooden formica show case kept in Room No.2. He also produced from his w personal box white shirt and Shalwar which appellant was wearing at the time of committing, the offence. Although it was washed blood-stains were visible. According to the Chemical Examiner's report so far Shalwar is concerned material was insufficient to give any opinion. No blood was detected on the shirt.

11. P.W.10 the Mashir of recovery of knife and shirt is related to the complainant. He resides about 20 miles away from the place of recovery. The second Mashir Nisar Ahmed P.W.9 was also examined. He is not a resident of the locality. . The house from where the articles were recovered is situated in Steel Mill Township where there are many quarters of similar nature and it was not difficult to obtain Mashir from the locality. The Investigating Officer in ignoring the mandatory provision of section 103, Cr.P.C. and failing to obtain independent persons of the locality as Mashir has made the authenticity of this recovery doubtful. In this regard reliance was placed on Rasool Bux and another v. The State 1980 S C M R 225 where it was held that the police officer should associate independent persons who are residing in the locality and if such persons are not available then, it is the duty of the prosecution to explain why such steps were not taken. No explanation has been offered by the prosecution.

12. Furthermore Mr. Halepota has contended that the recovery was made from the house in which the appellant's brother, wife and children and the appellant were jointly and commonly residing. In these circumstances it cannot be said that the room from where the recovery was made was exclusively in possession of the appellant. In this regard reference has been made to Mohammad Afzal v. The State 1983 S C M R 1 and State v. Ahmed Ali and others P L D. 1967 Kar. 612. In Ahmed Ali's case the accused had produced hatchet from a wooden desk in his house where his brother also resided but this evidence was not accepted. If any recovery of weapon of offence is made from the place which is jointly used or occupied by several persons including the accused then such weapon cannot be said to be exclusively of the accused and such evidence should be discarded as corroborative evidence. Furthermore if the recovery is not witnessed by independent witnesses of the locality, then such evidence should be excluded and no reliance can be placed on it:

13. Mr. A.A. Mohammedally the learned Assistant Advocate-General has contended that after a long time the knife could not be having blood stains and as knife and shirt were taken out from an Almirah in the second room, it was within the exclusive knowledge of the appellant and therefore, it could be accepted as a corroborative piece of evidence to prove the commission of offence. In view of the principle laid down and discussed above this evidence cannot be relied upon.

14. The motive attributed by prosecution is that deceased and the appellant had some quarrel earlier, and therefore, he was killed by the appellant. Mr. Halepota the learned counsel has contended that so far motive is concerned from the First Information Report onwards the allegations in that regard are inconsistent, uncertain and contradictory. In the F.I.R. it has been stated that the complainant had made enquiries from Ehsan Elahi, Javed Ismail, Younus and Mohammad Taj. about the deceased who did not give any correct information and from their talk he believed that the aforesaid persons who had earlier quarrelled with his brother i.e. the deceased over a boy Taj have committed murder of the deceased. Therefore, the motive alleged is that these persons had some disputes over a boy Taj. The appellant in his statement has stated that the deceased had an evil eye upon him, and he had remonstrated him. From these statements it is clear that rivalry if any was with the persons mentioned above. Furthermore no detail of alleged quarrel at Rawalpindi has been given. The evidence on record does not establish motive.

15. The prosecution has heavily relied on the extra-judicial confession made by the appellant. The extra-judicial confession is alleged to have been made on 17-3-1982 to Ali Akbar P.W.8. He has stated that the appellant came and disclosed to him that as the deceased had an evil eye upon him, he has murdered him. P.W.8, however, did not inform the relatives of the deceased as he did not believe the appellant. His statement was recorded after about 40 days. The entire circumstances stated by P.W.8 make the confession doubtful and unreliable. He has stated that while he was sitting with four or five persons in the garden of Pakistan Steel Mill at about 12 noon the appellant who was also sitting away with four other persons came forward, called him and informed that he had killed Naseem at some place in Pipri on 15-3-1982. He also showed him a knife used by` him. From the entire statement, it seems that during lunch hour when P.W.8 was sitting with his 415 friends the appellant who was also sitting with his friends of same number, called him and narrated this fact. Therefore, wherever he made this confession there were 415 persons available, but none of them have either been named or examined. The normal human conduct is that such information is related by the accused in confidence and not in public unless circumstances justify such public announcement. Furthermore, normally, if such information is given and the weapon of offence is also shown to the person who is known to the relatives of the deceased then at best some inquiry is made by such person for the purpose of ascertaining whether the accused was making a true statement or not. To say that he did not believe the appellant and kept quiet seems to be completely unreasonable and not in conformity with the normal human conduct. Furthermore the authenticity is shaken as there has been a delay of about 40 days in recording the statement of P.W.8. Ali Akbar was not a man of authority or position in any manner likely to render any assistance to the appellant. Therefore, it is not likely that the appellant would have approached him. In this regard reliance has been placed on Allah Dita v. The State 1977 S C M R 251. Where there has been unreasonable delay in recording the statement of a person in' the presence of whom the confession has been made, the Courts are reluctant to accept such evidence. Mr. A.A. Mohmmed ally has contended that P.W.8 is a truthful witness and the explanation given by him should be believed. The explanation is not at all convincing. We have no hesitation in holding that extra-judicial confession on which reliance has been placed is infirm, weak and completely unbelievable.

16. From the above discussion it is clear that the prosecution is relying on circumstantial evidence to prove the offence. Circumstantial evidence can be believed provided all pieces of such evidence are intertwined, interlaced and intervowen in such a manner that their appraisal may conclusively lead to an inescapable conclusion that the accused has committed the offence. The circumstantial evidence if corroborated by such pieces of evidence which if joined together make the case conclusively proved must be accepted. It is a salutary rule of appreciation of evidence that the entire evidence has to be examined and conclusion has to be drawn from it. But while examining each piece of evidence their infirmities and weaknesses cannot be ignored. Where any piece or part of evidence is defective, unreliable, false, contradictory, inadmissible and not credible it cannot be made a part and parcel of the other pieces of evidence for purposes of deducting the inferences and cumulative effect of the entire evidence. The learned Assistant Advocate-General has referred to Allah Ditta v. The State P L D 1958 SC 290 where the rule of appreciation of circumstantial evidence has been laid down as follows:-

17. "It is of course possible, and the main reason for this is that the evidence before .the Court is not of a direct nature, that despite the circumstances established, the possession of such knowledge might co-exist with absence of direct connection with the murder. But by hinting at the bare possibility of this kind, no such doubt can be thought to be created as might amount to reasonable within the contemplation of criminal jurisprudence. In other words where the chain of circumstances established against the accused person raises a strong probability that he is guilty of the offence charged, thus constituting a strong case which may be placed before a jury (in a jury trial) it is not sufficient for the accused to suggest a mere hypothesis or a remote possibility in order to rebut that case. In order to gain a favourable verdict, it will be necessary for the accused to set up facts upon which he may rely as exculpatory circumstances (e.g. to prove an alibi) sufficient to cast a reasonable doubt over the prosecution case."

18. Reliance was also placed on State v. Manzoor Ahmed P L D 1966 SC 664 where the following observation was made:-

19. "Learned counsel appearing for the respondent has urged the necessity of exercising minute care before drawing any inference adverse to his client. It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial Evidence, remember that the 'processes of inference and deduction are essentially involved frequently of a delicate and perplexing character liable to numerous causes of fallacy'. Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circum stances those circumstances must be found to be incompatible with the innocence of the accused and 'incapable of explanation upon any other reasonable hypothesis than that of his guilt'. It is also equally well-settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre-conceived notions. But once the circumstances have been found to be so established they may well furnish a better basis for decision than any other kind of evidence. As Hewart, I.C.J. observed 'in the case of Percival Leonard Taylor, James Weaver and George Thomas Donovan (1828) 21 Cr. A 20) 'it is no derogation, of evidence to say that it is circumstantial'.

20. Reference can be made to Iradoo and others v. The State of Hyderabad P L D 1956 SC (India) 286. It was observed as follows:-

21. "It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused."

22. Putting to test the evidence produced by the prosecution we are of the view that the evidence does not conclusively lead to the conclusion that the appellant has committed the crime. We had, therefore, by a short order passed earlier allowed the appeals filed against the conviction and dismissed the revision application filed for enhancement of. the sentence.

23. M.Y.H./M-519/ K Appeals allowed.