Muhammad Ibrahim Versus State

Muhammad Ayub Khan Tareen, J .--- This common judgment shall dispose of Criminal Appeals Nos. 526/2022, 550/2022 and Murder Reference No. 19/2022, as both the appeals are directed against the judgment dated 31st October 2022, passed by the learned Additional Sessions Judge-I, Sariab Division, Quetta in sessions case No. 38/2020, whereby the appellants Muhammad Ibraheem son of Muhammad Ismail and Manzoor Ahmed son of Muhammad Meer were convicted and sentenced in the following terms:

2.under section 365 P.P.C to suffer imprisonment for seven years each with a fine of Rs.20,000/- each, in default thereof, to further suffer simple imprisonment for six months each;

3.under section 394, P.P.C to suffer imprisonment for ten years each and to pay fine of Rs.20,000/- each, in default thereof to further suffer simple imprisonment for six months each;

All the sentences to run concurrently with the benefit of section 382-B, Cr.P.C.

The trial court, has sent the Murder Reference No. 19/2022 for confirmation of the sentence of death recorded against the appellants (convicts).

2. Facts of the case are that pursuant to the report (Ex: P/11- B) of complainant Muhammad Ramzan (PW-11), a criminal case, vide FIR No. 43/2019 (Ex: P/16-A), dated 31st May 2019, under sections 365 and 34, P.P.C was registered at P.S. Manzoor Tareen Shaheed Quetta, wherein he alleged that on 25th May 2019, at the time of Iftar he contacted his son Hafiz Sajid Ali, who informed him that he is invited at Iftar and will return home after prayer. Thereafter mobile phone of Hafiz Sajid Ali became off, on 26th May 2019, the complainant informed the police authorities about missing of Hafiz Sajid Ali through Ex: P/11-A and was also trying to find his whereabouts, but failed; therefore, he approached the concerned Police Station for registration of the FIR.

3. During investigation, on the basis of CDR, the friends of Sajid namely Manzoor Ahmed and Muhammad Ibraheem (appellants) were arrested, who made disclosure that they had thrown Sajid Ali in a well and taken away his motorbike; hence, section 302 P.P.C was inserted in the challan. After completion of the investigation, challan (Ex: P/7-A) was submitted. The learned Additional Sessions Judge-I Sariab Division took cognizance of the case, framed charge and readover the same to the appellants, to which they pleaded not guilty and claimed trial.

To substantiate accusation, the prosecution produced and examined the following evidence:

PW-2 Rashid Ali (brother of deceased), in his presence dead body of deceased Hafiz Sajid Ali was recovered from a well;

PW-3 Barkat Ali son of Ali Muhammad (maternal uncle of deceased), who was present with PW-2 and PW-11 at the time of recovery of dead body from a well;

PW-4 Abdul Salam son of Ghulam Sarwar, motorbike painter, to whom the accused brought the motorbike for paint;

PW-5 Dr. Aisha Faiz, Police Surgeon, who conducted postmortem of the dead body of deceased Sajid Ali and issued postmortem certificate (Ex: P/5-A); she also produced correction certificate of the name of deceased (Ex: P/5-B);

PW-6 Ehsanullah Constable, produced recovery memo (Ex: P/6-A) of news cuttings (Article-P/9 to P/17);

PW-7 Umar Daraz Shah, IP is the investigation officer, who produced challans (Ex: P/7-A to P/7-C);

PW-8 Abdul Qayyum son of Haji Abdul Rahman, who provided a labour to the Police authorities, to bring the dead bodies out of the well and in his presence, dead body of Sajid Ali was recovered from the well;

PW-9 Muhammad Afzal, Judicial Magistrate, in whose presence, Muhammad Haneef went inside the well and brought out the dead bodies including the dead body of deceased Sajid Ali;

PW-10 Muhammad Haneef, he brought out the dead body of deceased;

PW-11 Muhammad Ramzan (complainant), who produced his applications (Ex: P/11-A and P/11-B);

PW-12 Wali Muhammad son of Ghulam Rasool, in whose presence, Muhammad Haneef brought out the dead body of deceased Sajid Ali;

PW-13 Muhammad Qasim son of Muhammad Ishaq is also witness of recovery of Sajid Ali s dead body from a well;

PW-14 Syed Waseem Mumtaz, Head Constable is witness of recovery memo (Ex: P/14-A) of parcel (Article-P/18) containing sample of seal (Article-P/19) and CD (Article-P/20);

PW-15 Muhammad Shahbaz IP, who produced his report (Ex: P/15-A);

PW-16 Khair Muhammad SI, who produced copy of FIR (Ex: P/16-A), site map (Ex: P/16-B), Merg report of Sajid Ali (Ex: P/16-C-1/5 to P/16-C-5/5).

On closure of prosecution evidence, the learned trial court recorded the statements of appellants under section 342, Cr.P.C, wherein they disputed the prosecution story and pleaded their innocence; however, they did not opt to record their statements on oath provided under section 340(2) Cr.P.C, nor produced any witness in defence.

4.On completion of trial, the learned trial court (Additional Sessions Judge-I Sariab Division, Quetta), vide impugned judgment dated 31st October 2022, found the appellants guilty, as such, convicted and sentenced them as mentioned above. Hence, these appeals with the prayer to set aside the impugned judgment passed by the trial court and to acquit the appellants of the charge. Similarly, the learned trial court sent Murder Reference for confirmation of death penalty awarded to the appellants (convicts).

5.Learned counsel for the appellants argued that the FIR was lodged after a significant delay, and no satisfactory explanation has been provided; therefore, deliberation and consultation cannot be ruled out. However, the learned trial court did not consider this delay when deciding the case. They further contended that the prosecution's case relies on the joint extrajudicial confession of the appellants, which is inadmissible evidence; nonetheless, the learned trial court erred in law by relying on inadmissible evidence when sentencing the appellants. They also argued that during recoveries, the investigation officer did not call private witnesses to support the recoveries, violating the provisions of section 103 of the Cr.P.C. Lastly, they requested that due to material contradictions and the cumulative effects of legal and factual issues in the case, by extending the benefit of doubt, the judgment of the trial court should be set aside, and the appellants should be acquitted.

Conversely, the learned counsel for the complainant was assisted by the learned State Counsel, who argued that the complainant had adequately explained the delay by filing a report soon after the disappearance of his son; therefore, the delay has caused no prejudice to the appellants. They further argued that the deceased's dead body had been recovered based on the appellants pointation. Such pointation falls under Article 40 of the Qanun-e-Shahadat Order 1984, which is admissible as evidence. The dead body has been duly identified, and thus the trial court correctly convicted the appellants. They lastly requested that the trial court's speaking judgment be upheld.

6.We have heard the learned counsel for the appellants, the learned State counsel, and the learned counsel for the complainant, and we have reviewed the record with their valuable assistance.

Brief facts of the case as given in FIR No. 43/2019 dated 31st May 2019, reported by complainant Muhammad Ramzan at Police Station Manzoor Tareen Shaheed Quetta, states that the complainant's son, Hafiz Sajid Ali, aged 29 years, who worked as a laborer, went for routine work on 25th May 2019. When he did not return home on time, the complainant called him on his cell phone and asked why he was delayed. Hafiz Sajid Ali replied that he would come after Iftari and prayer. When he did not return after prayer, the complainant called him again, but his cell phone was off. And when Sajid Ali had not returned home, on 26th May 2019, the complainant reported his son's disappearance to the police through Ex: P/11-A. On 31st May 2019, the complainant, after searching for his son, Sajid Ali, through his relatives and friends, and after waiting a long time for his return home, when he lost hope of his return, he again approached the police station. He lodged the FIR against unknown persons under sections 365 and 34 of the P.P.C.

7.Admittedly, Sajid Ali's murder went un-witnessed, and the case depends on circumstantial evidence. We recognize that cases relying on such evidence require special care and caution. Therefore, while re-examining the evidence, we have taken every possible precaution to prevent and eliminate any false conclusions, as there is always a risk of fabricating circumstantial evidence. As the apex court has held, circumstantial evidence is not always reliable, and depending on it entirely can be risky. The evidence must form a chain of events, with one end connected to the deceased and the other to the accused. If this link is missing, the entire chain collapses. No conviction can be based solely on such circumstantial evidence.

8.Dealing with the issue of alleged delay in lodging the FIR, usually, such a long delay would be fatal to the prosecution, but in this case, Sajid Ali went missing on 25th May 2019. After searching for him and not returning home all night, the complainant, PW-11, who is also Sajid's father, filed a missing report at the police station the next day. After an extensive search and waiting several days for his son's safe return, the complainant finally lodged the FIR on 31st May 2019. Under these circumstances, where Sajid Ali's family, with police assistance, attempted to locate their missing son on their own and only filed the FIR after they were unsuccessful, we believe this provides a sufficient explanation for the delay in registration of FIR. Therefore, we do not consider the delay to be fatal to the case, especially since the missing report was filed the very next day, thereby reducing the likelihood of any fabrication, deliberation, or consultation.

9.After registering an FIR, the investigation officer collected the Call Detail Record (CDR) (Article-P/2- P/7) through memo (Ex: P/1-C) of the missing Sajid Ali and appellants. The appellants were found to be connected with Sajid Ali on the day he went missing. Subsequently, Sajid Ali's phone number went offline, and two days later, the mobile was found to be in use by Ibrahim, one of the appellants. Since both appellants had been in contact with Sajid Ali, they were called by the police to provide information about Sajid Ali. However, their responses were unsatisfactory, and as a result, they were formally arrested on 11th June 2019.

Upon their arrest, the appellants made an extrajudicial confession, revealing that on 25th May, 2019, they went with Sajid Ali from Quetta to Mastung Daringar on Sajid Ali's motorbike. On the way back, they had Iftar at Dasht. Around 9 PM, they dragged Sajid Ali alive into a rotten, deserted well near Link Mian Ghundi Dasht. From there, they returned to Quetta and were able to point out the well where Sajid Ali was held. Sajid Ali's motorbike was handed over to a paint shop to be painted, and he paid 7,000/- to the painter on Spini Road, Quetta, and can identify the shop. They further disclosed that the documents related to Sajid Ali's motorbike are kept by the accused (appellant) Manzoor Ahmed, at his house with his mother, and can be recovered. The motorbike, which was taken to the paint shop for painting, is still at the paint shop. To establish the disclosure of the appellants (Ex: P/1-A), PW 1 Mumtaz Tanoli testified that the Registration Book of Sajid Ali's motorbike was recovered on the disclosure of the appellants from the house of appellant Manzoor through a recovery memo (Ex: P/1-B). Following the disclosure by the appellants, they also led police to a paint shop on Spini Road, where Sajid Ali's motorbike (Article-P/8) was recovered, documented with a recovery memo (Ex: P/1-E). Abdul Salam, PW-4, stated that the accused (appellants) had given him a motorbike for painting. Although he did not identify the accused in court, it was likely due to the passage of about two and a half years between the time the motorbike was given and his court testimony. However, he also testified that the accused present in court handed him the motorbike for painting.

The objection raised by the learned counsel regarding the violation of section 103, Cr.P.C, by not involving two respected members of the locality as witnesses during the recovery is unfounded. In this case, no search warrants were issued by the Magistrate for the house or shop, nor did the police conducted searches on their own. The appellants themselves led the police to the locations where the registration book and motorbike were recovered. According to section 103, Cr.P.C, this rule applies when the police search a house to find a specific item, not when something is discovered based on information provided by or pointed out by the accused. Such recovery based on the accused's pointation is relevant under Article 40 of the Qanun-e-Shahadat Order 1984. The involvement of two respectable local residents is unnecessary when the accused himself guides the police to a specific location, leading to the recovery based on his information or pointation. Reliance is placed on the case of Muhammad Akbar v. The State (1995 SCMR 693).

10.In furtherance of the disclosure made by the appellants, both of them led the investigation officer, along with SP, DSP, and other police officials, to Dasht Link Road to the abandoned, rotten well where they had thrown alive Sajid Ali. This discovery, based on the information provided by the appellants, resulted in the recovery of Sajid Ali's dead body from the well. It is clear that before the appellants provided this information, no one knew Sajid Ali's whereabouts. Moreover, the place where the murder of the deceased was committed was also not known to anyone until the prosecution witnesses were led to the crime scene by the appellants in consequence of their disclosure. The information given by the appellants to the investigation officer can be used against them under Article 40 of the Qanun-e-Shahadat Order, 1984. In cases involving circumstantial evidence, when a discovery is made as a result of a confession made under Article 40 of the Qanun-e-Shahadat Order, 1984, it is expected that evidence connected to the deceased will be found. Reliance is placed on the case of Gul Jamal and another v. The State (1980 SCMR 654) where it was held:

11.Similarly, when the appellants took the police to the location of the dead body, PW-2 Rashid Ali, brother of the deceased Sajid Ali, PW-3 Barkat Ali, also a maternal uncle of the deceased, PW-11 Muhammad Ramzan, the complainant and father of Sajid Ali, along with PW-5 Dr. Aisha Faiz and PW-9 Muhammad Afzal, a Judicial Magistrate, were present and witnessed the process of extracting Sajid Ali s body from the well. These witnesses are impartial and have no grudge that could lead to false implicating of the appellants. The prosecution also presented PW-8 Abdul Qayyum, who arranged for Wali Muhammad (PW-12), to assist in extracting the body. Therefore, the presence of these private and independent witnesses during the body extraction, following the appellants indication, cannot be doubted. Particularly, the Magistrate and police surgeon s presence, which was not challenged, strengthens the credibility of the prosecution s case by adding reliability to the evidence.

Learned counsel for the appellants argued that since the dead body was shown to have been extracted based on the joint confession and joint pointation of the appellants, this piece of evidence could not be used against them. In our view, the plurality of information received before discovery does not necessarily exclude this information from Article 40 of the Qanun-e-Shahadat Order 1984. Reliance is placed on the case of Tariq Hameed Paracha and others v. Danish Ahmed and another (2019 YLR 2246), where it was held:

Further reliance is placed on the case of Nazir Shehzad v. The State (2009 SCMR 1440) , where it was held:

The mere plurality of information received before discovery shall not necessarily take any of these information out of the Article. In a suitable case it is possible to ascribe to more than one accused the information which leads to the discovery, so was held in the case of Naresh Chandra Das and another v. Emperor (AIR (29) 1942 Cal. 593).

Further, it was held in the case of Ajab alias Rajab and another v. The State (2004 MLD 180), that:

In the peculiar circumstances of this case, mere plurality of information received before discovery would not necessarily take information out of Article 40 of Qanun-e-Shahadat Order, 1984. The appellants failed to furnish an explanation as to how they knew the dead body of Sajid Ali was lying in a deserted well. As such, it can fairly be presumed that the appellants were the persons who threw Sajid Ali into the well. Even otherwise, it does not appeal to reason, logic, or common sense that the accused could have taken the police to any other dead body apart from the one that they had murdered and had hidden.

12.The testimony of PW-9, Muhammad Afzal, a Judicial Magistrate, is very important. He testified that, at the request of the investigation officer, upon arriving at the Mian Ghundi Link Road, he observed police officers, including the SP and DSP. The accused, Manzoor Ahmad and Ibrahim, were sitting in a police vehicle parked nearby. He along with the investigation officer and witnesses approached the vehicle and asked for their names. When asked further, the accused revealed that they had thrown the kidnapped Sajid Ali's dead body into a nearby well. He also testified that private expert Muhammad Hanif (PW-10), after taking safety precautions, went down into the well. Soon after, he came back up with a dead body (of Sajid Ali), which his father correctly identified. With regard to the identification of dead body this was done by PW-2 Rashid Ali, PW-3 Barkat Ali, the brother and uncle of deceased and PW-11 Muhammad Ramzan, the complainant and the father of deceased, who rightly identified the dead body and PW-5 Dr. Aisha Faiz who carried out post mortem of Sajid Ali confirmed while responding to a question that there was no need of DNA examination as the dead body was identifiable. The father, brother and uncle of the deceased identified the dead body. The dead body extracted from the well on the pointation of appellants and identified by the father, brother and uncle strengthened the prosecution's case.

PW-5 Dr. Aisha Faiz conducted a post-mortem and deposed that on 22nd June 2019, at the request through a written police murasila , she proceeded to Mian Ghundi along with her para-medical team, in the presence of the learned Judicial Magistrate Muhammad Afzal, SHO Khair Muhammad, DSP Abdul Salam, and SP Chaudhary Mushtaq, the dead body of Sajid Ali was recovered, which was shifted to the hospital for post-mortem, and the following injuries were found after conducting the post-mortem.

OPINION:

And issued post mortem certificate as Ex: P/5-A.

The testimony and injuries provided by PW-5 Dr. Aisha Faiz, further supported the extrajudicial confession and pointation of the appellants' claim that the death of Sajid Ali was caused by a fall into the well.

13.Learned counsel for the appellants contended that there are numerous contradictions in the testimonies of the prosecution's case concerning the time, dates of the pointation and pulling out of the dead body from the well. We have taken into account that, by and large, all the PWs have corroborated themselves and the prosecution's case, and that any contradictions are minor and of a non-material nature, which can be disregarded. No personal enmity towards the accused or any reason to falsely implicate any of them is shown. The motive for the murder is supported by substantial evidence that the deceased was killed for stealing the motorbike. Since they were familiar with the deceased, he was killed to sell his motorbike.

Therefore, based on the above discussion, we find that the prosecution has proven its case beyond a reasonable doubt against the appellants, and as a result, the contested judgment is upheld.

14.The next issue concerns the sentence to be imposed on the appellants. It is clear that the appellants murdered the deceased Sajid Ali under the guise of friendship, and then, throwing him alive into a well for a small sum of money, committed an unforgivable crime. In this regard, we may rely upon the judgment of the Honourable Supreme Court of Pakistan in the case of Noor Muhammad v. The State (1999 SCMR 2722), where it was held:

15.Therefore, in light of the above, the prosecution has proved its case, and both the accused murdered a young man who was approximately 29 years old for the sake of a motorbike. We found no mitigating circumstances favoring them.

In view of what has been discussed above, the appeals filed by the appellants are dismissed and capital punishment of death awarded to the appellants Manzoor Ahmed son of Muhammad Meer and Muhammad Ibraheem son of Muhammad Ismail, vide judgment dated 31st October 2022, rendered by the learned trial court (Additional Sessions Judge-I Sariab Division, Quetta) is maintained.

As a result, the Murder Reference No. 19/2022 is answered in Affirmative.

JK/86/Bal. Appeals dismissed.