RASHID ALI KHAN Versus THE STATE

JUSTICE SAJJAD AHMED SIPRA, MEMBER. --- The present appeal calls in question the legality and propriety of the judgment, dated 26-12-1991, whereby Mr: Justice (Recd.) Malik Gulbaz Khan, Judge, Special Court for Speedy Trial No.11, Lahore; convicted and sentenced the appellants as follows:--

(i) Under section 364/34, P.P.C.

To imprisonment for life and a fine of Rs.50,000 each, or in default of payment of fine, to undergo further R.I. for two years.

(ii) Under section 302/34, P.P.C.

To imprisonment for life as. Tazir each. The sentences of both the appellants under sections 364/34 and 302/34, P.P.C. shall run concurrently. The benefit of section 382-B, Cr.P.C. shall be given to the appellants.

2. The State has also filed Criminal Appeal No.1-SAC/L of 1992 against the said judgment contending for enhancement of the sentences to capital punishment under both the charges. The present judgement shall also dispose of the said appeal.

3. The brief facts leading to the present appeal are a4 follows:---

According to F.I.R. Exh.P.C., six months before the present occurrence, Rashid Ali appellant was married to a cousin of Zafar Ehsan deceased, named, Mst. Zubi Mansoor: Rashid Ali accused/appellant suspected his wife's sister Ambar Mansoor of having illicit relations with Zafar Ehsan deceased. On 16-8-1991, at about 6 p.m. Rashid Ali accused/appellant and his friend Imtiaz accused/appellant took away Zafar Ehsan deceased from his house in the presence of Mazhar Ehsan and lqbal Ehsan P.Ws. on the pretext of arranging his meeting with Ambar Mansoor. Zafar. Ehsan deceased left in his Suzuki Pick-up No.3023/LHE in the company of the two accused. The deceased was wearing Wrist Watch Seiko 5 of Golden colour and a Golden Ring. He was having Rs.21,000 as cash on his person. Nayab Ahmad Khan arid Shahid P.Ws. also saw Zafar Ehsan deceased leaving in the company of the two accused/appellants. The deceased did not return till late at night. His brothers, Mazhar Ehsan and Iqbal Ehsan P.Ws, searched for the deceased but they were unable to find him out Same was the position on 17-8-1991. The complainant party suspected the two accused/appellants for the abduction of Zafar Ehsan deceased with the intention of committing his murder. On the night between 17/18-8-1991 at about 12-30 mid night, Mazhar Ehsan P.W. lodged F.I.R. Exh.P.C. at Police Station Islampura.

4. Police had arrested Rashid Ali and Imtiaz appellants on 21-8-1991. 'Mazhar Ehsan, Iqbal Ehsan and Sami Ullah visited police station on 21-8-1991. Both the appellants, one by one, on interrogation, disclosed that they could lead to the place where they committed the murder of Zafar Ehsan and they led the police and witnesses to the house of Rashid Ali and pointed out the place where the deceased was done to death, and thereafter pointed out the place i.e. T. Bund on river Ravi where the deceased was thrown in the Ravi. Divers were called and told to search for the dead body and they made hectic efforts till about 3-00 p.m. on 21-8-1991. The divers remained unsuccessful. They informed the police that as it was rainy season, the dead body might have flown downstream and it should be searched downstream. On the advice of the divers, the police party accompanied by Mazhar Ehsan, Iqbal Ehsan and Sami Ullah went downstream along River Ravi. They found a dead body on the bank of River Ravi at a distance of 1 kilometre from the place which was pointed out by the two appellants. The dead body was not identifiable from the features the brothers of the deceased identified the dead body from the shoes, socks, trouser and a healed wound on the leg. Driving licence of the deceased bearing No.334262-LHR, photostat copy of the Identity Card in a plastic cover and rexine purse were found in the back pocket of the trousers of the deceased. From all these articles, the dead body was identified as that of Zafar Ehsan deceased.

The dead body was sent for post-mortem examination which was, conducted on 22-8-1991 at 11-00 a.m. The doctor opined that cause of the death could not be given due to the absence of all internal organs, neck structures and advanced stage of decomposition. The deceased was X-rayed. It was stated by the Radiologist that there was an old completely healed fracture in remodelling face at the middle of femoral shaft with intact intra-medullory nail. Photograph of the dead body was taken but as stated above, the dead

5. On 28-8-1991, Rashid Ali accused/appellant while in police custody, made statement that he could lead to the recovery of cash of Rs.21,000 Consequently, he led the police to his house and brought out cash of Rs.21,000 from a steel box which was lying in the store room. The cash was taken into possession and recovery memo. P.E. was prepared. Rashid Ali appellant made statement that he could lead to the recovery of Suzuki Pick-up No.3023/LHE. Consequently, he led the police to a place near his house and got recovered Suzuki Pick-up No.3023/LHE of the deceased which was taken into possession vide memo. P.F.

Imtiaz appellant while in police custody made statement that he could lead to the recovery of wrist watch Seiko and Ring and consequently, produced Wrist Watch Seiko 5 and Golden ring of the deceased which were taken into possession vide memo. P.G. These articles were identified by the brothers of the deceased. Earlier on 21-8-1991, driving licence P.2, photostat copy of Identity Card of Zafar Ehsan P.1 and Purse P.3 were taken into possession vide memo. P.D. Fard Nishan Dehi P.H. and P.J. of the place where the dead body was thrown after murder, were prepared. Vest trouser, Pajama, socks and shoes of the deceased were produced before Munir Ahmad Khan, A.S.I. by Maqbool Ahmed, F.C. and were taken into possession vide memo. P.K. Site plan was prepared by the Draftsman and note with red ink was added thereon by the A.S.I

6. The case was pending in the Court of learned Sessions Judge, Lahore who had framed charges against the two appellants under sections 364/34; P.P.C. and 302/34, P.P.C. on 27-10-1991. The appellants had pleaded not guilty to the charges. The case was fixed for 30-11-1991 for prosecution evidence when the case was notified by the Federal Government for trial by the. Special Court for Speedy Trial II, Lahore.

7. Dr. Jalal-ud-Din Gohar (P.W.1) stated in Court that he conducted the post-mortem examination on the dead body on 22-8-1991 at 11-00 a.m. and the dead body was not identifiable. He stated that he was unable to give opinion as to the cause of death due to absence of all internal organs, neck structures and advanced, stage of decomposition. He gave probable duration between death and post-mortem as within two weeks but during further clarification he stated that he was ` of the view that the duration was about a week but by way of caution, he mentioned within two weeks. Mazhar Ehsan P.W.2 supported the version which he gave in the F.I.R. He made statement about the disclosure of the two appellants as a consequence of which the dead body was recovered from the bank of Ravi River. He also deposed about the recoveries made from the two accused i.e. cash Rs.21,000 and Suzuki Pick-up No.3023/LHE from Rashid Ali appellant and Wrist Watch and Ring of the deceased from Imtiaz appellant. He identified all the articles P.1 to P.6 as belonging to his deceased brother, Zafar Ehsan. Iqbal Ehsan, another brother of deceased was examined as P.W.3. He stated that on 16-8-1991 at 6-00. p.m. the two appellants took away the deceased from the house of the deceased in his presence on the pretext of arranging his meeting with Ambar Mansoor. The witness further stated that the deceased drove away his Suzuki Pick-up No.3023/LHE in the company of the two appellants and was wearing Seiko 5 Wrist Watch and a Ring and had cash Rs.21,000. This witness also deposed about the statements of the two appellants and their pointing out the place where the dead body was thrown near T-Bund River Ravi. He further stated that the dead body was recovered at a distance of 1-1/2 k.m. from the, place which was pointed out by the two appellants. The witness further stated that photo copy of Identity Card of deceased P.1, Driving Licence of the deceased P.2 and Purse P.3 were found in the pocket pf the trousers of the deceased which were taken into possession vide memo. PD and he attested it. He also stated that he identified the dead body from shoes, socks, trousers, stitched leg wound, driving licence, photo copy of identity card and the purse. The witness identified Wrist Watch and the ring as that of the deceased. Nayab Ahmed Khan was examined as P.W.4. He saw Zafar Ehsan deceased in the company of Rashid Ali and Imtiaz appellants on 16-8-1991 at about 6-00 p.m. He stated that the deceased was driving his Pick-up No.3023/LHE and the two accused/appellants were with him at that time. Maqbool Ahmed, F.C. (P.W.5) escorted the dead body to the mortuary. After post-mortrm, he handed over the articles of the deceased and attested memo. P.K. The site plan was prepared by the draftsman. Munir Ahmed Khan. A.S.I. recorded the F.I.R. of this case. He conducted the entire investigation and while appearing as a witness, he supported the investigation.

S. The accused/appellants denied the prosecution allegeons. Rashid Air appellant alleged that he was involved falsely in this case as he informed his in laws about the bad character of the deceased and stopped visits of the deceased at the house of his in laws. He stated that he was involved due to enmity. The case of Imtiaz appellant was that he was involved falsely at the instance of police and his rival candidate in Local Bodies Elections. Rashid Ali appellant produced evidence in defence.

9. We have heard the learned counsel fob the appellants and the State, and perused the record of the case with their assistance.

The evidence against the appellants is of the following categories:--

(i) Last seen;

(ii) Recoveries; and

(iii) Pointing out of the place on River Ravi, where they had thrown the dead body.

P.W.2, Mazhar Ehsan Zubairi, P.W.3, Iqbal Ehsan Zubairi and P.W.4, Nayab Ahmed Khan are the witnesses of the last seen. According to P.W.2 and P.W.3, both real brothers of the deceased; the appellants had come to their house and had taken away the deceased on the pretext of arranging his meeting with Mst. Ambar Mansoor, whereas P.W.4, Nayab Ahmed Khan had stated to the effect that he saw the deceased going in a Suzuki alongwith the accused/appellants. The learned counsel for the appellants argued vehemently that under the circumstances as highlighted by the prosecution, there was no reason for the appellants to arrange a meeting between the deceased and the said Mst. Ambar Mansoor. In this respect, it was pointed out that the said Mst. Ambar Mansoor was a regular visitor to the house of the deceased and as such there was no need for the appellants to arrange a meeting as alleged. Further pointed out that, in any case, it is the case of the prosecution itself as brought on the record through the testimony of P.W.4, Nayab Ahmed Khan that the deceased was driving the Suzuki himself, therefore, it cannot be said that the appellants had taken him away by enticement. It is further argued on behalf of the appellants that the recoveries effected as alleged totally failed to advance the case of the prosecution. It was argued that the recoveries effected from the appellant, Rashid Ali cannot be said to be from his exclusive possession as the same were recovered from a house jointly inhabitated by other members of his family and from an unlocked trunk in a room that was not locked. Further pointed out that the recovery of Suzuki No.3023/LHE had taken place from roadside near the Children Park, and that it was neither locked nor its key was recovered from the appellant. It was further argued that the recovery of Seiko watch and a golden ring from the appellant. Muhammad Imtiaz was of no help to the prosecution either as it had been clearly established that they were of common type, bearing no special mark or name to link it with the deceased, and were available in the market. Further argued that the said recovery had taken place from the spot that was accessible to everyone. The learned counsel had further submitted that whereas it is the case of the prosecution that the appellants had pointed out the place on the river i.e. T. Bund where the dead body of the deceased is alleged to have been thrown by them after his murder on 21-8-1991, yet it is the case of the prosecution itself that the Investigating Officer, P.W.6, Munir Ahmad Khan A.S.I. had informed the various Police stations to look out for the dead body on 18-8-1991 and that such a contradiction Was fatal to the case of the prosecution. In this respect, further pointed out that no independent witness had been associated with the alleged pointing out of the said place, in spite of the T. Bund being public place. Further submitted that the dead body had been lying on the bank of the river and it seems that it had been brought out of water by someone which goes to prove that its existence at the spot was known for quite some time and it was not recovered after the appellants had pointed out the place on the T. Bund on the River Ravi where they had thrown the dead body. Therefore, the learned counsel for the appellants argued that in keeping with the safe administration of criminal justice, the case against the appellants not being free of doubts, the benefit of the same should be extended to them and they be acquitted of the offences charged.

10. On the other hand, the learned counsel for the State argued that there was no reason for the prosecution witnesses to falsely implicate the appellants in the present case. Further submitted that there was no enmity established between the complainant and the appellants. Further argued that the last seen testimony was reliable, and that the recoveries effected from the appellants had duly connected them with the crime, and that the dead body had been recovered in pursuance to the pointing out of the place of the river i.e. T. Bund by the appellants where they had thrown the dead body, and that, therefore, the prosecution had duly proved its case against the appellants as charged. Further argued that it has been held that independent prosecution witnesses are not always necessary for witnessing the recovery as held by the superior Courts.

11. We have given our anxious consideration to the contentions raised on behalf of the parties. The case against the appellants primarily rests on the evidence of (i) last seen, (ii) the recoveries effected from them, and (iii) on their pointing out the place where they had thrown the dead body, that had led to the recovery of the same from downstream at a distance of 1-1/2 k.m. The last seen evidence had been provided by the P.Ws. Nos.2, 3 and 4. The testimony of P.Ws. 2 and 3, besides being that of the real brothers of the deceased, otherwise suffers from dishonest improvements and mutual contradictions. In this respect, it may be pointed out that whereas the complainant P.W.2 was confronted a number of times in respect of the dishonest improvements that he had made during his testimony before the learned trial Court, and in addition thereto, his testimony and that of the P.W.3, Iqbal Ehsan Zubairi, contradicted each other about their presence in the same room alongwith the deceased and the accused when it is alleged that the accused had taken away the deceased on the pretext of arranging his meeting with Mst. Ambar Mansoor. Whereas P.W.2 had stated that he and his brother P.W.3 were in the adjoining room. On the contrary P.W.3 had stated that both of them were present in the same room alongwith the deceased and the two accused. Furthermore, they also contradicted each other in respect of the manner in which they had gone looking for the dead body on the river. Whereas P.W.2 in this respect stated that the dead body was found on the right side of River Ravi i.e. on other bank across the river in the first instance and had in the very next breath contradicted himself by saying that actually the dead body was found on the side of the bank of the river that they were present and not across the river, the P.W.3 had stated to the contrary by stating that the dead body was recovered not from across but from this side of the river towards Gulshan Ravi Police Station. Such contradictions in the testimonies of these two prosecution witnesses create serious doubt about their, presence at the time, when the accused had taken away the deceased from his house as well as in respect of the time, manner and place of the recovery of the dead body. Furthermore, .the testimonies of these two witnesses do not advance the case of the prosecution in any manner in respect of the recoveries alleged, as they have admitted in the cross-examination that the said recoveries of cash, Seiko watch and the golden ring had been made from the places which were proved to be not in the exclusive possession of the accused and that, in fact, the said places of recovery were accessible to all, and had further admitted that the Seiko watch or the golden ring did not carry any inscription to link the same with the deceased and had further stated that they were of the type that were easily available in the market. The said prosecution witnesses had also failed to explain as to -how did they know that the deceased was carrying substantial amount of money with him at the relevant time. It may further be pointed out that although it is the case of the prosecution that the dead body was recovered after a hectic search undertaken in pursuance to the place at T.-Bund pointed out by the accused respectively as the place where they had thrown the dead body in the river on 21-8-1991, yet the Investigating Officer, Munir Ahmad Khan, A.S.I. P.W.6, had categorically stated that he had sent intimations to various police stations downstream on 18-8-1991 to look out for a dead body, thus materially contradicting not only the P.Ws. 2 and 3 but entirely demolishing the case of the prosecution to the effect that the dead body was recovered after the police had been led to the T-Bund on River Ravi by the accused and only after thereby gaining the information for the first time that the dead body had been thrown into the River Ravi T-Bund.

12. Furthermore, as it is the established principle of law that if two alternative interpretations of a situation are possible then one favourable to the A accused shall be preferred as held in Ghulam Hussain v. The State P L D 1972 Lah. 153 and as it is also a recognized rule applicable to the dispensation of criminal justice, as laid down in Sikandar v. The State P L D 1963 SC 17, that if there is a choice between the doubting of statement of an eye-witness or that of a Police Officer who had investigated the case, the benefit of doubt thus occurring should go to the accused, and it has been further held by the Honourable Supreme Court in Noora and another v. The State P L D 1973 SC 469 that unsatisfactory, conflicting and contradictory evidence fails to establish appellant's guilt beyond reasonable doubt, therefore, as discussed above, we D hold that the prosecution had failed to bring the guilt home to the accused beyond reasonable doubt in the instant case.

13. Therefore, pursuant to what has been stated above, we allow the present appeal and set aside the impugned judgment. Resultantly, the appellants stand acquitted of all the offences charged and they shall be D released forthwith, if not required to be detained in any other case. Consequently, the connected State Appeal i.e. Criminal Appeal No.1/SAC of 1992 stands dismissed.

N.H.Q./30/SAC Appeal allowed.