MUHAMMAD GULZAR Versus State
RAJA SHAHID MEHMOOD ABBASI, J.--- Through this single judgment, we intend to dispose of Crl. Appeal No. 628 of 2012 filed by appellant Muhammad Gulzar against his conviction and sentence whereas Murder Reference No. 20 of 2016 transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to appellant Muhammad Gulzar. As both the matters have been originated from the same judgment dated 29-06-2012 passed by learned Additional Sessions Judge, Multan in case FIR No. 197 dated 18-02-2011, under section 302, P.P.C., registered at Police Station Mumtazabad, District Multan, whereby the appellant was convicted under section 302(b), P.P.C. and was sentence to death with the direction to pay a sum of Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Jhangir or in default thereof to further undergo six months S.I. with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case, as can be culled from FIR (Ex.PB) got lodged by Muhammad Raza, complainant (PW.6) are that he was resident of Mohallah Abbaspura and doing labour. He along with his children was residing with his brother, who was running a tanky shop in the name and style of Jhangir and Adeel Qalanderi Mechanical Works at Hassan Sawali Chowk, Nag Shah, Multan. That on 17-02-2011 at about 04:00 p.m., complainant's brother Jhangir told his wife that he was going to the house of Muhammad Gulzar (appellant) in connection with the rendition of account and would return soon. On the way, his brother also met with Ghulam Shabbir and told him that he was going to Muhammad Gulzar for taking money from him. At about 9:00 p.m., the complainant received a telephonic call from the Police Station Mumtazabad that his brother had been murdered and his dead body was lying at Mohallah Nasir Abad near Pir Umer graveyard. On receiving the information, complainant along with Sikandar Hussain, Haider Ali, Sofi Altaf Hussain, Haji Ghulam Raza and other residents of locality reached at the spot and saw that the dead body of Jhangir was lying there smeared with blood. The complainant had strong apprehension that his brother Jhangir had been murdered by Muhammad Gulzar along with unknown persons with sharpe edged weapon.
Motive behind the occurrence was that Muhammad Gulzar committed theft from the workshop of Jhangir and in Punchayat he admitted about the theft of Rs.40000/- and promised to pay back in installments and due to this grudge, accused persons committed his murder.
3. After registration of FIR (Ex.PB), investigation of the case was conducted by Ghulam Sarwar, SI (PW.14) and upon completion of investigation, he prepared challan of the case and got forwarded the same to the court of learned Additional Sessions Judge, Multan, for trial of the appellant in accordance with law. The learned trial court after observing legal formalities as provided under the Code of Criminal Procedure framed a charge against the appellant to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution as many as produced 14 prosecution witnesses before the learned trial court. Muhammad Raza, complainant (PW.6), Mst. Fozia (PW.13) furnished departure evidence, while Dilbar Khan (PW.3), Rehmat Ali (PW.4), Muhammad Numan (PW.5) furnished the evidence of extra judicial confession of appellant before them. Muhammad Javaid 3536/C (PW.7) was the witness of recovery of blood stained Bughda (P.4) on the pointation of appellant from his house. Irfan Hayat (PW.9) prepared scaled site plans (Ex.PG, Ex.PG/1 and Ex.PG/2). Ghulam Sarwar, SI (PW.14) stated about various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Tariq Nawaz Babar (PW.11), who conducted postmortem examination on the dead body of Jhangir deceased on 18-02-2011 at 07:00 p.m. and observed the following injuries:--
INJURIES
I. A cut wound measuring 10 cm x 2 cm on the right frontal area of scull, going deep into the brain matter, brain matter was coming out of the injury.
2. A cut wound measuring 15 cm x 2 cm from the right temporal area cutting the upper edge of Pinna of right ear to medial/inner side of the right eye cutting down the brain matter, right eye ball was missing.
3. A cut wound measuring 8 cm x 1-1/2 cm starting below the right eye to medial right side of the root of nose, cutting the underlying bone.
4. A cut wound measuring 12 cm x 2cm, cutting down the lobule of the right ear upto right cheek cutting down the underling bone.
5. A cut wound measuring 11 cm x 1-1/2 cm starting from right cheek to left side of upper lip, upper jaw was cut and teeth were depressed.
6. A cut wound measuring 10 cm x 1-1/2 starting from right angle of mouth to left angle of mouth cutting down the lower lip and lower Jaw, teeth were depressed and tongue was cut, mouth was full of blood and teeth etc.
7. A cut wound measuring 10 cm x 1-1/2 cm starting from the right side of the middle of chin upto left side of the chin. 04 cm below the lower lip cutting down the underlying bone.
8. A cut wound measuring 14 cm x 2 cm cutting down the lower part of the chin, trachea, Oesophagus, right carotid artery, thyroid up to the cervical spine. Blood was present in the lungs.
9. A cut wound measuring 5 cm x 1-1/2 cm with bone exposed under dorsum of the right wrist joint.
Spinal cord and vertebrae were not opened. Heart was empty. Stomach had 200 ml of semi digested food. Bladder was health and rest of the organs were healthy.
In the opinion of the doctor, heavy sharp edge weapon cut down the brain matter, right eye, teeth, tongue, right carotid artery, trachea oesophagus and choked the mouth became the cause of death instantaneously after shock and hemorrhage. Time between injury and death was immediate and time between death and postmortem was about 18 to 24 hours. The postmortem report is available on record as Ex.PJ. Rest of the prosecution witnesses more or less are formal in nature. The prosecution gave up Haider Ali, Altaf Hussain, Ghulam Raza, Muhammad Iqbal, Muhammad Shafi, Hanifullah 2549/C, Muhammad Rashid Malik, SHO, PWs being unnecessary and after tendering in evidence the reports of Chemical Examiner and Serologist (Ex.PN, Ex.PQ, Ex.PR and Ex.PS), closed its evidence.
5. The appellant was examined under section 342, Cr.P.C. he professed his innocence and pleaded false implication in the case. In an answer to the question "why this case against him and why the PWs have deposed against him?", Muhammad Gulzar, appellant replied as under:-
"I have been falsely implicated by the complainant in the instant case due to hard words exchanged during Punchait convened by both the parties over the settlement of account. I have nothing to do with the fact of this case. All the PWs are close relatives of the complainant and they deposed against me due to their close relations with him only to strengthen his version, however, I am innocent."
The appellant did not opt to make statement on oath as provided under section 340(2), Cr.P.C. and he also did not produce any evidence in his defence.
6. The learned trial court on conclusion of the trial held Muhammad Gulzar, appellant guilty of the offence charged and sentenced him as mentioned hereinabove. Hence, the appeal against conviction and murder reference before us.
7. Learned counsel for the appellant contends that the prosecution case is nothing but cock and bull story which has been engineered by the complainant party and the appellant has falsely been implicated in this case due to suspicion; that no iota of evidence is available against the appellant to connect him with the commission of crime; that there are material contradictions in the prosecution evidence, which create serious doubt in the prosecution case; that there is no direct evidence against the appellant and the prosecution case is based on the circumstantial evidence, which is admittedly the weakest type of evidence and the chain of circumstances against the appellant is also broken; that the departure evidence is unreliable and unbelievable and the evidence of extra judicial confession is always considered weakest type of evidence, which was not supported from any substantial evidence; that the recoveries planted upon the appellant are inconsequential and the prosecution has also failed to prove motive part of its case, for which it must suffer; that the prosecution had badly failed to bring home the guilt of the appellant beyond any reasonable shadow of doubt but learned trial court ignored all the fallacies of the prosecution case with surprising ease, rendering its pronouncement of guilt against him a funny story; that the impugned judgment has been passed by the learned trial court without application of judicious mind, therefore, it looks unsustainable from all four corners. Finally prays that the appeal may be accepted and the appellant being an innocent person may be acquitted of the charge.
8. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant, and inter alia, maintains that there is no deliberate and conscious delay in reporting the matter to the police; that the appellant is duly named in FIR with specific allegation of committing murder of Jhangir deceased; that though no direct evidence is available against the appellant yet the prosecution has proved its case through circumstantial evidence; that the complainant and other prosecution witnesses have no ill-will or malice against the appellant to falsely implicate him in this case; that the prosecution case is corroborated by medical evidence and recovery of weapon of offence at the instance of the appellant. Further maintained that the prosecution has proved its case against the appellant beyond the shadow of any doubt, hence, his conviction and sentences may be maintained and upheld and his appeal may be dismissed and Murder Reference may be answered in affirmative.
9. Arguments advanced pro and contra have been heard and the record of this case has been thrashed out with able assistance of learned counsel for the appellant as well as learned Deputy Prosecutor General.
10. Undeniably, it was an un-witnessed incident, wherein appellant Muhammad Gulzar was implicated by Muhammad Raza, complainant (PW.6) merely on the basis of suspicion. There is no direct evidence of the incident and the entire structure of the prosecution case against the appellant is based on circumstantial evidence, which is normally considered as a weak type of evidence. It is well settled by now that in such like cases, prosecution is required to link each circumstance to the other in a manner that it must form a complete, continuous and unbroken chain of circumstances, firmly connecting the accused with the alleged offence and if any link is missing then obviously benefit is to be given to the accused. Reliance is placed on the esteemed judgments of the Hon'ble of Supreme Court of Pakistan reported as "Nasir Javed and another v. The State" (2016 SCMR 1144) and "Muhammad Hussain v. The State" (2011 SCMR 1127). In an attempt to make a chain of circumstances, the prosecution has relied upon the evidence of departure, extrajudicial confession of appellant, medical evidence, recoveries effected from the appellant and lastly the evidence of motive.
11. The first significant piece of evidence in this case is that of departure evidence, furnished by Muhammad Raza, complainant (PW.6), Sikandar Hassan (PW.8) and Mst. Fozia (PW.13). Undoubtedly, Muhammad Raza, complainant (PW.6) and Sikandar Hassan (PW.8) are not the witnesses of departure evidence as Muhammad Raza, complainant (PW.6) during his cross-examination stated that he was not present in the house when Jahangir went to the house of appellant and the departure of deceased to the house of appellant was informed to him by his wife. Likewise, Sikandar Hassan (PW.8) during his court statement stated that the fact of departure of deceased from his house to the house of Gulzar was told to him by Mst. Fozia at about 4:30/4:45 p.m. on the fateful day. The prosecution also produced Mst. Fozia Bibi, widow of deceased as PW.13. According to her, her husband Jahangir went out of his house while stating that he would return after obtaining his money from Muhammad Gulzar, appellant but at about 9:00 p.m. they received information that Jahangir has been murdered. She placed her suspicion that her husband was murdered by the appellant on the issue of money but it was an oral assertion of Mst. Fozia Bibi (PW.13), which is not supported from any supportive piece of evidence. Moreso, according to Muhammad Raza, complainant (PW.6) and Sikandar Hassan (PW.8), on the way Jahangir, deceased also met with Ghulam Shabbir, PW and told the same facts to him but said Ghulam Shabbir, PW has not been examined by the prosecution and was given up being unnecessary. In the circumstances stated above, abandoning of the above witness obviously leads to an adverse inference in terms of Article 129-G of the Qanun-e-Shahadat Order, 1984. It is settled law that if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Besides, it will create impression that had such witness been produced into witness box, he might have not supported the prosecution case. Reliance in this respect is placed on the cases of "Lal Khan v. The State" (2006 SCMR 1846) and "Muhammad Rafiq and others v. The State" (2010 SCMR 385). Under the above circumstances of the case, it is not safe to rely on the evidence of departure, which does not inspire confidence. Even otherwise, evidence of departure alone is not sufficient for the purpose of conviction of an accused and further evidence was required to link the appellant with the murder, which is very much lacking in the instant case and merely on the basis of departure evidence, it cannot be said that the appellant had committed the murder of Muhammad Gulzar, deceased.
12. The next piece of evidence relied by the prosecution was in shape of extra-judicial confession of the appellant before Dilbar Khan (PW.3), Rehmat Ali (PW.4) and Muhammad Noman (PW.5). Evidence of this type because of its being concocted easily is always looked at with doubt and suspicion. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration. As stated above, the occurrence had taken place on 17-02-2011 and according to Rehmat Ali (PW.4) and Muhammad Numan (PW.5), on the same evening at about 09:10 p.m. they were coming back to their house and when reached in the street of Tangewali Mohallah Saleem Abad, the appellant met them and at that time he was armed with blood stained Toka and his clothes were also smeared with blood. They further stated that the appellant informed them that he had committed the murder of Jahangir in Pir Umar Qabaristan and thereafter he went away, but it is quite surprising that according to these witnesses, they did not bother to inform about the incident to any family member of the deceased rather they went to the house of Jahangir on the following morning. They did not even join the investigation immediately before Ghulam Sarwar, SI (PW.14) and got recorded their statements under section 161, Cr.P.C. on 21-02-2011, which itself is enough to discard their depositions. As far as the evidence of Dilbar Khan (PW.3) is concerned, according to him on 22-02-2011, he along with Muhammad Shaffi, PW (given up) was present at Darbar Baba Sheedi Lal. At about 12/01 p.m. Gulzar, appellant came there and asked them that they belonged to Abbas Pura upon which they replied that they belonged to Abbas Pura upon which he made confession that he had committed the murder of Jahangir and due to this reason he did not go to his house after the occurrence and they should arrange paradon for him from the complainant party, but interestingly they also did not inform the matter to the police or the complainant party and did not even try to capture the accused rather left the place to their house while the accused remained there. It is also a circumstance that the statement under section 161, Cr.P.C. of this witness was recorded by the investigating officer on 23-02-2011 i.e. on the next day of the alleged extra-judicial confession, which raised serious doubt about his credibility. Even otherwise, the appellant had no occasion to confess his guilt before before Dilbar Khan (PW.3), Rehmat Ali (PW.4), Muhammad Noman (PW.5), who, being unconcerned persons and related to the complainant, were expected to do him more harm than the good. It is also not acceptable to a prudent mind that the accused would make confession before any person, who had no authority or influence so as to hold out any hope of pardon for him and thereby tempt him to make any confession. We do not find any answer to the aforesaid questions nor any other justification for believing them. Extra-judicial confession of the appellant when examined in this prospective neither rang true nor agreed with truth or fit in with the circumstances of the case. We have not been satisfied by the prosecution with such queries to believe the said evidence, hence, no implicit reliance can be placed on the evidence of extra-judicial confession. Reliance is placed upon "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231) and "Tahir Javed v. The State" (2009 SCMR 166) wherein, at page 170, the August Supreme Court of Pakistan was pleased to observe as under:--
"10. ...It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time, therefore, normally, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmad v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. Reference in this regard may usefully be made to the following reported judgments:---
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683, (4) Sorfraz Khan v. The State and others 1996 SCMR 188."
13. The next evidence relied upon by the prosecution is the medical evidence, which is brought on the file through the statement of Doctor Tariq Nawaz Babar (PW.11). Admittedly no other direct or indirect evidence is available against the appellant which could be supported by the medical evidence. Furthermore, it is well settled by now that the medical evidence may confirm the ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injury but it, alone, cannot connect the accused with the commission of crime. Reliance is placed upon "Muhammad Tasaveer v. Hafiz Zulqurnain and 2 others" (PLD 2009 SC 53), "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410), "Altaf Hussain v. Fakhar Hussan and another" (2008 SCMR 1103) and "Ghulam Mustafa and another v. The State" (2009 SCMR 916).
14. As far as the recovery of Toka/Bughda (P4) and slipper of deceased (P.5/1-2) alleged to have been effected from the appellant vide memos (Ex.PC and Ex.PD) is concerned, this evidence at its best can be taken as corroborative rather than evidence of the charge. The reason is that it, per se does not name or nominate any accused, nor does it prove or point to his guilt. It simply supplements the other evidence on the record, if it, in its own inspires confidence. It would not appeal to any prudent mind that once the appellant decided to conceal the weapon as is the case of the prosecution then there is no point that he would keep the same in his house in such safe custody so as to get recover the same at a subsequent point of time. Similarly, keeping the slippers of the deceased in safe custody after the occurrence is also beyond human prudence. Even otherwise, in the absence of any other cogent and convincing evidence, conviction and sentences of the appellant cannot be maintained only on the basis of recovery of Toka and slipper and positive reports of Chemical Examiner and Serologist (Ex.PN, Ex.PQ, Ex.PR and Ex.PS). Under the above circumstances, the recovery of weapon of offence as well as slippers of the deceased does not render any help to the prosecution case.
15. Now the only evidence, remains in field, is in the shape of motive got mentioned by Muhammad Raza, complainant (PW.6) in FIR (Ex.PB) that the appellant had committed theft in the workshop of the deceased and in this regard, appellant admitted his guilt of committing theft of Rs.40,000/- before Punchayat and had promised to return the same on installments but when the deceased demanded his amount, the appellant committed his murder. During cross-examination, Muhammad Raza complainant (PW.6) stated that the deceased had not filed any application whatsoever before the police with regard to the theft allegedly committed by the appellant. Similarly, the prosecution has not bothered to produce any member of the Punchayat in order to establish that the appellant had made any confession in respect of theft or he had promised to return any amount to the deceased. In this way, there is nothing on record to supplement the motive part of the prosecution case, which is accordingly held not successfully proved by the prosecution.
16. Argument advanced by the Deputy Prosecutor General that the appellant failed to disclose any bias or malice on the part of complainant or the prosecution to implicate him falsely is sufficient to prove veracity of stance of prosecution in view of evidence led by prosecution cannot advance plea of prosecution because it is the duty of prosecution to prove the case against the accused beyond shadow of doubt irrespective of the plea raised by defence. Needless to state that defence is not duty bound to disprove the prosecution case. Defence may take the plea or not and may be sometimes failed to prove the same but it is always the prosecution to prove the case beyond shadow of doubt. It would be sufficient if defence succeeds in putting a dent in the case of prosecution.
17. As discussed above, there is no direct evidence in this case against the appellant and prosecution case rested upon circumstantial evidence and in such like case every circumstance would link each other and it should form such a continuous chain that its one end touches the dead body and the other encircles the neck of accused. But if any link of chain is missing, its benefit must be given to the accused. In this regard guidance is sought from the judgment of apex court of the country in the case of Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court of Pakistan as under: -
"7. Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of accused. Failure of one link will destroy the entire chain."
So having guidance from the supra referred esteemed judgments when we have a glance over the complete evidence of the instant- case, we find so many links missing from the chain of prosecution evidence. It is also settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accused, whereas the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance can be placed on the cases of "Tariq Pervez v. The State" (1995 SCMR 1345) and "Muhammad Akram v. The State" (2009 SCMR 230).
18. In the light of above discussion, we are of the view that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No. 628 of 2012 filed by Muhammad Gulzar, appellant, set aside his conviction and sentence recorded by the learned trial court and acquit him of the charge by extending the benefit of doubt in his favour. He is in custody, he be released forthwith if not required in any other case.
19. Murder Reference is answered in negative and the sentence of death awarded by the learned trial court to the appellant Muhammad Gulzar is not confirmed.
JK/M-60/L Appeal allowed.