Zaheer Ahmed Versus State

Sahibzada Asadullah, J .--- Through this single judgment, this court is intending to decide the instant appeal as well as connected Cr.A. No. 210-P/2024 titled Noor Khan v. Muhammad Shakeel and others and Cr.R. No. 73-P/2024 titled Noor Khan v. Nasrullah and others as all the matters are arising out of one and the same judgment dated 19.12.2023 passed by the learned Sessions Judge, Kohat delivered in case FIR No. 70 dated 14.02.2020 under sections 302/109/34 P.P.C read with section 15 AA at Police Station Gumbat, District Kohat, whereby respondent/ accused Muhammad Shakeel was acquitted of the charge levelled against him while the appellants Zaheer Ahmed and Nasrullah were convicted and sentenced as under:

Under section 302 (b) P.P.C for committing qatl-e-amd of deceased Muhammad Isreal each to imprisonment for life as Tazir and also to pay a compensation of Rs. Rs.4,00,000/- (rupees four lac) each to the LRs of the deceased within the meaning of section 544-A Cr.P.C. and, in default whereof, to suffer simple imprisonment for six months each.

Under section 302 (b) P.P.C for committing qatl-e-amd of deceased Noman Ijaz each to imprisonment for life as Tazir and also to pay a compensation of Rs.4,00,000/- (rupees four lac) each to the LRs of the deceased within the meaning of section 544-A Cr.P.C. and, in default whereof, to suffer simple imprisonment for six months each.

Under section 15 AA each to pay a fine of Rs. Rs.10,000/- (rupees ten thousand) each and, in default whereof, to suffer simple imprisonment for ten days each.

The sentences of life imprisonment awarded to each appellant shall run consecutively. Benefit of section 382-B Cr.P.C was extended in favor of the appellants.

2. The brief facts leading to the present case are that on 12.02.2020, complainant Noor Khan reported the matter to the effect that his son Muhammad Israel and grandson Noman Ijaz were residing with him in the same house; that on 11.02.2020, his other grandson, Nasrullah along with Zaheer Ahmed, visited their house and asked Muhammad Israel and Noman Ijaz to accompany them the next day to Toi Bandha, where they intended to exchange their CD-70 motorcycle with a 125 CC motorcycle belonging to their friend and thereafter, have a meal there. Accordingly, on 12.02.2020, Muhammad Israel and Noman Ijaz left home on their motorcycle for Toi Bandha, but did not return till evening; that attempts to contact them failed as their mobile phones were found switched off; that upon contacting Nasrullah, he informed that both had parted from him the same day at about 12:00 PM; that they had no enmity with anyone; that the report of complainant was penned down in Daily Diary No. 16 dated 12.02.2020, and an inquiry under Section 156(3) Cr.P.C. was initiated. During the course of inquiry, Nasrullah and Zaheer Ahmed were interrogated, and on their pointation, certain recoveries were effected, including the dead bodies of Muhammad Israel and Noman Ijaz; that, Nasrullah and Zaheer Ahmed were charged for the murder of the deceased, while respondent/accused Muhammad Shakeel was charged for abetment; that the accused were arrested, and during investigation, on the pointation of accused Nasrullah, two pistols one, belonging to him and the other belonging to Zaheer Ahmed were recovered, whereupon Section 15 of the Arms Act, 2013, was also inserted in the case.

3. Complete challan was put in court. Provisions of section 265-C Cr.P.C. were complied with and, the appellants along with acquitted co-accused Muhammad Shakeel was charge sheeted to which they pleaded not guilty and claimed trial. In order to prove its claim, the prosecution produced and examined as many as 17 witnesses. After closure of prosecution evidence, statements of the appellants and acquitted co-accused recorded under section 342 Cr.P.C., wherein they posed innocence, however, neither they wished to be examined on Oath as required under section 340 (2) Cr.P.C, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial, acquitted the accused Muhammad Shakeel whereas, convicted and sentenced the appellants vide the impugned judgment, hence, instant appeal.

4. Arguments heard and available record scanned through.

5. The complainant lodged a report at the police station regarding the disappearance of the deceased, narrating that they had departed from home in the company of the accused, who later sought to explain that they had merely dined together and thereafter separated. During the course of enquiry, the statements of the accused as well as other witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1898. Amongst them was the watchman of the rest house, who stated that he had observed two persons emerging from the river side and taking possession of a motorcycle, and Muhammad Yasir, who deposed that a hammer had been obtained from him to break open the lock of the said motorcycle. Initially, the accused were released, but subsequently, upon further developments, they were re-arrested and, during interrogation, disclosed that the deceased had been done to death and their bodies cast into a nearby river, which were thereafter recovered at their pointation along with several 30-bore empty cartridges. Furthermore, accused Nasrullah led to the recovery of two pistols concealed within a polythene bag, one belonging to him and the other to his co-accused Zaheer, which, upon examination by the firearms expert, were found to be matching with the recovered empties. The accused also confessed before the competent Court. Though the initial motive was attributed to Nasrullah s inclination towards Mst. Iram, it was later supplemented by the assertion that accused Shakeel harboured an interest in the widow of deceased Muhammad Israeel and perceived him as an impediment, thereby providing the impetus for the commission of the murders. On the cumulative strength of the aforesaid evidence, the learned trial Court convicted and sentenced the accused through the impugned judgment.

6. The learned Trial Court, upon due appreciation of the evidence and proper application of judicial mind, held the accused responsible for the occurrence. However, while the accused had confessed to their guilt, it is a settled principle that conviction cannot rest solely upon confession; the prosecution must substantiate its case through independent corroborative evidence. As the matter was founded upon circumstantial evidence, it became imperative to determine whether the unbroken chain of circumstances extended from the recovery of the dead bodies to the direct culpability of the accused. To obviate any miscarriage of justice, this Court has therefore undertaken a comprehensive reappraisal of the evidence and the entire record.

7. The points emerging for determination before this Court are: whether the occurrence transpired in the manner alleged by the prosecution; whether the dead bodies were in fact recovered pursuant to the pointation of the accused; whether the medical evidence lends corroboration to the prosecution s version; whether the arrest of the accused and their confessional statements inspire confidence; and, ultimately, whether the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt.

8. This Court cannot lose sight of the admitted fact that the deceased had departed from home in the company of the accused with the ostensible purpose of dining together at the rest house; however, while the accused did return, the deceased did not. It was only upon the disclosure of the accused during enquiry that they were arrested, and on their pointation the villagers succeeded in recovering the dead bodies from the river. Inasmuch as the prosecution case rests upon circumstantial evidence, this Court is duty-bound to determine whether the investigating agency succeeded in securing independent and confidence-inspiring evidence to support its claim, particularly in view of the admitted close relationship between the complainant, the accused, and the deceased, a circumstance that naturally calls for vigilant scrutiny to exclude the possibility of substitution, suspicion, or mala fide implication. The record, however, reveals that the complainant did not immediately nominate the accused; rather, it was after a lapse of two days, when the accused were associated with the enquiry, that they themselves disclosed the manner in which the deceased had been murdered and the place where the dead bodies had been disposed of. Pursuant to such disclosure, the bodies were recovered on the pointation of the appellants, pulled out from the river with the assistance of co-villagers. This sequence of events, in itself, rules out mala fides on the part of the complainant, who, in fact, displayed restraint until the culprits themselves surfaced. Further recoveries followed: on the pointation of the accused, the site plan was prepared, empties were secured, and subsequently, one of the accused led the police to the buried pistols which, when sent for forensic examination, were positively matched with the recovered empties, thereby furnishing strong corroboration. In addition, the testimony of the rest house watchman, who though unacquainted with the accused, narrated that he had observed two men emerging from the riverside and taking away a motorcycle, as well as the account of Muhammad Yasir, who confirmed that a hammer had been taken from him, plausibly to break the motorcycle lock, further fortified the prosecution s chain of circumstances. These recoveries, the forensic evidence, and the testimony of independent witnesses collectively inspire confidence, exclude the possibility of false implication, and firmly link the accused with the commission of the crime. The circumstantial evidence so gathered is not only consistent but also leaves no scope for any missing link; rather, its very consistency further strengthens the complainant s version and the appellants culpability in this tragic occurrence. Though the case is founded primarily on circumstantial evidence, yet the prosecution has succeeded in weaving a complete and unbroken chain, one end anchored in the recovery of the deceased s bodies, and the other in the incriminating conduct of the accused. No strong motive or animosity on the part of the complainant against the accused has been demonstrated. On the contrary, the complainant bore an equal relationship with both the deceased and the accused, which effectively excludes the hypothesis of false implication. The sequence of events, viewed in its entirety, leaves no room for ambiguity: the deceased departed in the company of the accused, they dined together, thereafter the accused returned alone, and the deceased never reappeared. When these essential pieces of evidence are examined in conjunction, the conclusion is irresistible that the prosecution has successfully connected the accused with the murders. Despite strenuous efforts, the defence has failed to establish any mala fide or ulterior motive attributable to the complainant. It is correct that the complainant was related to the deceased, but equally correct that he stood in the same relation to the accused. Such relationship, in itself, does not render his testimony suspect or unreliable. Rather, the complainant has satisfactorily explained the circumstances in which this unfortunate occurrence took place, and throughout has acted with manifest bona fides. His testimony, therefore, is worthy of reliance. In this regard, guidance may also be drawn from the judgment of the Supreme Court in Muhammad Latif v. The State (PLD 2008 SC 503), where it was expounded that the law recognizes no inhibition against awarding capital punishment to an offender who has extinguished three human lives, provided that the chain of circumstances remains unbroken and leads to an irresistible inference of guilt. Where the circumstantial evidence adduced is cogent, compelling, and conclusive in connecting the accused with the offence, leaving neither room for doubt nor suspicion, conviction is the only lawful outcome. In such circumstances, the imposition of the death penalty or, alternatively, life imprisonment, constitutes the normal and natural consequence.

9. The learned counsel for the appellants sought to question the manner and timing of their arrest, as well as the legality of their custody, contending that since the accused had been brought to the police station on 13.02.2020, whereas their formal arrest was reflected as of 14.02.2020, the intervening period constituted illegal detention, and further alleging that they had been falsely implicated in the instant case. Upon due consideration of the testimony of the Inquiry Officer, however, no indication of such illegality or irregularity emerges. On the contrary, the officer categorically deposed that the accused were merely asked to appear before him on 13.02.2020, during which no substantial material was gathered, and it was only on their subsequent appearance on 14.02.2020 that they voluntarily disclosed their involvement, confessed to their guilt, and on their pointation the dead bodies were recovered, after which the matter was formally reported through the registration of the FIR. During investigation, the site plan of the rest house was prepared on their pointation; bloodstains and empties were secured; and the weapons of offence were recovered and duly dispatched to the firearms expert, whose positive report lent further corroboration to the prosecution s case. The accused were thereafter produced before the learned Judicial Magistrate, who granted their physical remand for three days. Calculated from 14.02.2020, their production before the Magistrate on 17.02.2020 was timely and lawful, at which point they opted to confess, and their confessional statements were accordingly recorded in strict conformity with law. The defence plea that they ought to have been produced on 16.02.2020 is, therefore, devoid of merit. The circumstances received further reinforcement from the statement of Mst. Irum, recorded under Section 161 Cr.P.C. on 17.02.2020, wherein she confirmed her relationship with accused Nasrullah and explicated the motive behind the killings as his professed claim of love. Her statement, even after the test of cross-examination, remained unshaken, thereby placing the motive component of the prosecution s case on solid footing through the testimony of an essential and natural witness. The confessional statements of the accused were recorded by the learned Judicial Magistrate, examined as PW-14, who explained that he afforded the accused sufficient time for reflection, warned them of the consequences of confession, and recorded their statements separately after preparing a questionnaire, the answers to which were duly noted in his own hand. In cross-examination, he satisfactorily clarified each step undertaken, leaving no ambiguity regarding the voluntariness or validity of the confessions. The defence suggestion that the statements had been recorded in each other s presence was conclusively dispelled by the Magistrate s assertion that the accused were dealt with individually and independently. When the confessional statements are examined in the light of surrounding circumstances, they are found to be consistent and coherent, narrating in detail how the accused accompanied the deceased, committed their murder, and concealed the matter until disclosure during inquiry. The confessions thus stand established as voluntary, true, and legally recorded. It is settled law that a conviction may validly rest upon a truthful and confidence-inspiring confession, and in the present case, not only do the confessions inspire confidence, but they also find ample corroboration from the medical evidence confirming firearm injuries, from the recovery of empties at the spot, and from the recovery of the dead bodies from the river, while the testimony of witnesses remained consistent on material particulars. Guidance in this regard may be sought from the judgment of the Supreme Court in Shaukat Ali v. The State and others (PLD 2019 SC 577) , wherein it was held that although the appellant, upon being indicted, opted to contest the charge and subsequently retracted from his confessional statement during his examination under Section 342, Cr.P.C., yet upon meticulous scrutiny the Court found the confession to be free from taint, voluntary in character, uninfluenced by duress or inducement, and presenting a coherent and truthful account of the events leading to the death of the deceased. In that case, too, the learned Magistrate exercised due caution by administering the requisite warnings and recording the confession in his own hand, thereby ensuring procedural sanctity. The Supreme Court held that such confession, bearing no imprint of fabrication, inspires confidence and may lawfully form the foundation for conviction. It is by now well entrenched that a retracted confession, if found voluntary and truthful, constitutes sufficient basis for conviction without offending the principles of safe administration of criminal justice.

10. The motive, initially ascribed to the alleged love affair between Mst. Irum and accused Nasrullah, stood proved through her own testimony wherein she candidly admitted her relationship with him. Although the complainant subsequently introduced an alternative motive, the essential nexus between the accused and the commission of the crime remained unimpaired. Furthermore, the recovery of pistols on the pointation of one accused, which upon forensic examination were positively matched with the empties recovered from the spot, furnished strong corroboration to the prosecution s case. Even if such recovery is excluded vis- -vis the co-accused, the remaining body of evidence, comprising the recoveries, the pointation of the accused, and their confessional statements, independently and sufficiently establishes their guilt beyond reasonable doubt.

11. The cumulative effect of the foregoing discussion inevitably leads this Court to the irresistible conclusion that the prosecution has successfully established the guilt of the appellants beyond reasonable doubt. The impugned judgment does not suffer from any legal infirmity, procedural irregularity, or inherent defect warranting interference. On the contrary, it is well-reasoned, resting upon a judicious and meticulous appreciation of the evidence available on record by the learned Trial Court. Consequently, the instant criminal appeal, being devoid of merit, stands dismissed.

12. Adverting now to Cr.A. No. 210-P/2024 , instituted by the complainant assailing the acquittal of accused Muhammad Shakeel, it is observed that the said co-accused came to be implicated at a subsequent stage through a supplementary statement of the complainant, wherein an altogether new motive was set forth. However, when Mst. Irum appeared as PW-8 and deposed before the Court, she categorically negated the subsequently introduced motive and, instead, affirmed her relationship with accused Nasrullah. In these circumstances, the later-introduced motive stood discredited and thereby lost all evidentiary worth. Consequently, this Court finds that the learned Trial Court was justified in extending the benefit of doubt to accused Muhammad Shakeel, and the impugned judgment, to that extent, calls for no interference. Resultantly, Cr.A. No. 210-P/2024 is hereby dismissed.

13. Turning now to Criminal Revision No. 73-P/2024, instituted by the complainant seeking enhancement of the sentence awarded to the convicts, this Court is to examine whether the learned Trial Court was justified in arriving at its conclusion, and what prevailed with the learned Judge when he decided to award a lesser sentence instead of the normal penalty of death. There is no denial of the fact that the prosecution case rests entirely upon circumstantial evidence. It stands established that the deceased had accompanied the accused, and after having eaten fish together, the accused returned, but the deceased did not. During the course of the enquiry, the accused admitted their involvement in the commission of the offence. If the entire chain of circumstances is taken into consideration, this Court is constrained to observe that there remains uncertainty regarding the precise events that transpired on the fateful day. Both parties had amicably proceeded to the fishing hut, dined together, and thereafter the deceased met their tragic end. From the beginning to the end, the exact circumstances under which the deceased were killed do not clearly emerge from the record. This uncertainty, by itself, constitutes a valid ground for taking a lenient view, and this was the consideration that weighed with the learned Trial Court while awarding the lesser sentence. This Court finds that the approach adopted by the learned Trial Court is legally sound and does not warrant interference, particularly for the purpose of enhancing the sentence to capital punishment. Consequently, this criminal revision, being devoid of merit, stands dismissed.

JK/107/P Revision dismissed.