Dilshad Masih VS State

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.1223/2007 (Dilshad Masih etc v. The State)

JUDGMENT

Date of hearing: 04.07.2014.________________________________ Appellants by: Mr.Mughees Mazhar, Advocate for the appellant._ State by: Mr.Iftikhar ul Haq Chaudhary, Additional Prosecutor General.

Complainant by: Complainant in person._______________________ AALIA NEELUM, J. Dilshad Masih son of Mushtaq Masih, Wajahat Ali alias Sahiba son of Liaquat Ali and Muhammad Rafique son of Khusha Muhammad were involved in case F.I.R. No.125/2006, dated 19.01.2006, offence under Sections 302, 382, 411, 109, 34 P.P.C., registered at Police Station, Nishatabad, District, Faisalabad and was tried by Mr. Khizar Hayat Sial, Additional Sessions Judge, Faisalabad. The learned trial court seized with the matter vide its judgment dated 23.07.2007 and convicted the appellants as under:-

i)Under Section 302(b) P.P.C., Rigorous Imprisonment for life imprisonment and to pay compensation of Rs.50,000/-as provided under Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo Simple Imprisonment for six months.

ii)under Section 382 P.P.C., Rigorous Imprisonment for ten years with a fine of Rs.5000/-and in case

of default in payment of fine, further undergo Simple Imprisonment for one month.

iii)under Section 411 P.P.C., Rigorous Imprisonment for three years.

2.It would not be out of context to mention here tht the legal heirs of the deceased-Muhammad Latif had entered into a compromise with Wajahat Ali and Muhammad Rafique, appellants and in terms of order dated 11.07.2008 passed in Crl. Misc. No.64-M of 2008 they were acquitted of the charge, therefore, instant criminal appeal is abated to their extent.

3.The prosecution story as alleged in the statement (Exh.P.H) of Muhammad Aslam son of Muhammad Ibrahim is that he is cultivator. On 19.01.2006 at 11:00 A.M., he along with Farman Ali (given up) went to his fields of sugarcane situated at Square No.9 Killa No.23 to ease himself, he saw a dead body of unknown person having a string around his neck and dead body was eaten by the animals and was unidentifiable. After leaving Farman Ali to safeguard the dead body, the complainant- Muhammad Aslam went to Police Station and made his statement, which was reduced into writing and signed by him as (Exh.P.H) by Arshad Javaid, A.S.I. Therefore, the Investigating Officer (PW-11) proceeded to the place of occurrence, inspected the dead body, prepared injury statement (Exh.P.D) and drafted application for postmortem examination, he also prepared rough site plan of the place of occurrence (Exh.P.J) and recorded statements of the prosecution witnesses in terms of Section 161, Cr.P.C. Thereafter the Investigating Officer had made announcements on the loudspeakers in the nearby village about the dead body of the deceased on the next day. After the

postmortem examination on 20.01.2006 last worn clothes of the deceased i.e. Qameez )P-3), Sweater (P-4) of Khaki colour, Jacket (P-5), Bunyan (P-6), Pair of socks (P-7/1-2), Sweater (P-8) of white colour and piece of string having white colour (P-9) were produced before the Investigating Officer, which he took into possession vide recovery memo (Exh.P.G). The Investigating Officer made hectic efforts to search out unknown accused persons and legal heirs of the unknown deceased. On 21.02.2006, Akbar Ali Nizami, Draftsman (PW-3) visited the place of occurrence and took rough notes on the pointation of complainant (PW-9) and on 23.02.2006 after preparing scaled site plan (Exh.P.D, Exh.P.D/1) he presented the same to the Investigating Officer. The Investigating Officer recorded his statement under Section 161 of Cr.P.C.

4.It is pertinent to mention here that Abdul Hafeez (PW-15) brother-in-law of deceased, identified the deceased from his last worn clothes, kept in Malkhana and disclosed that the deceased was his brother-in-law (sister’s husband) and received the dead body. Thereafter on 26.05.2006, Abdul Hafeez (PW-15) moved an application to the police (Exh.P.K) and nominated Dilshad Masih, Wajahat Ali alias Sahiba, Muhammad Rafique and Islam Din (since not arrested) on the basis of suspicion. The Investigating Officer recorded statements of Javaid Iqbal and Intizar Ahmad in terms of Section 161 Cr.P.C. On 05.06.2006 the Investigating Officer arrested Muhammad Rafique and Dilshad Masih-appellants. During the course of investigation, nothing was recovered from their custody. Muhammad Rafique accused was taken into custody by the Bailiff of the Lahore High Court, Lahore and was released on interim bail on 06.06.2006. The

Investigating Officer arrested Wajahat alias Sahiba on 26.06.2006. On 28.06.2006, interim bail of Muhammad Rafique was cancelled by the Hon’ble Lahore High Court, Lahore and he was arrested by Muhammad Ashraf, S.I.

5.Subsequently, Muhammad Ashraf, S.I. prepared report under Section 173, Cr.P.C. against accused Muhammad Rafique, Dilshad Masih (appellants) and Wajahat alias Sahiba and the same was sent to the court of competent jurisdiction. On 17.11.2006, the learned trial court formally charge sheeted the appellant with other co-accused (since acquitted) to which he pleaded not guilty and claimed trial. Prosecution in order to prove its case, produced as many as seventeen (17) prosecution witnesses.

6.Ocular account in this case has come out from the statements of Muhammad Aslam (PW-9), Javaid Iqbal (PW-13), Intizar Ahmad (PW-14) and Abdul Hafeez (PW-15) are witnesses of last seen. Akbar Ali Nizami (PW-3) had prepared scaled site plan of the place of occurrence. Primarily the matter was investigated by Shoukat Hayat, S.I. (PW-11), thereafter, it came up before Tufail Muhammad, D.S.P/S.D.P.O (PW-17) who completed the investigation. Dr. Arshad Mehmod (PW-1) had conducted postmortem examination upon the dead body of deceased and found following injuries on his person:-

1.A bruised ligature mark 25 x 2 cm on back of neck, upper part, also on sides of neck posteriorly. The colour was turning to dark under lying issues (muscles and vessels) are bruised and congested. On the front side of neck the muscles of neck, trachea, esophagus and blood vessels were absent and eaten by the animals.

Two pieces of white AZARBAND without knot were present around the neck. The hyoid bone was absent.

Animal/insect injuries.

Animals had eaten the lower part of abdominal walls and visceras were visible, right frontal and inner muscles of right thigh were eaten and right feamour bone was visible, the external genetalia were also eaten and absent. Face muscles were eaten and absent. Bones of the face were visible and naked. Eye sockets were empty and eye balls were absent. Right ear was also absent, right middle finger last digit was also eaten by the animals.

After conducting the postmortem examination, the doctor rendered the following opinion:-

“In my opinion, the cause of death will be opined after receipt of reports from Chemical Examiner, Lahore and Bacteriologist, Government of the Punjab, Lahore. The probable time that elapsed between injuries and death was nil and between death and postmortem was about two to four days”.

7.The statements of rest of the prosecution witnesses are formal in nature.

8.On 06.07.2007, learned Deputy District Public Prosecutor gave up Farman Ali, Muhammad Nawaz and Muhammad Rafique being un-necessary and closed the evidence after tendering in documentary evidence the report of Chemical Examiner (Exh.P.L) and report of Bacteriologist (Exh.P.L/1).

9.The appellant was also examined under Section 342 Cr.P.C., wherein neither he opted to produce defence evidence, nor to appear as his own witness in terms of Section 340(2),

Cr.P.C. in disproof of the allegations leveled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, Dilshad Msih, appellant made the following deposition:- “I have falsely been involved in this case. The complainant party falsely involved me in this case in connivance with the police merely on the basis of suspicion and to get some ulterior motive. I had not committed the offence of murder. PWs are closely related inter-se and due to this reason they deposed falsely against me.”

10.Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore stated terms.

11.Learned defence counsel for the appellant submits that it was an un-witnessed occurrence; that the witnesses produced in order to prove evidence of last seen contradicted each other and they made dishonest improvements on almost all points; that nothing was recovered from the possession or pointation of the appellant; that the prosecution case is replete with doubts; that this is a case of no evidence against the appellant. The learned counsel contended that the prosecution case is full of material contradictions and the same lacks sufficient incriminating evidence, conviction passed by the learned trial court against the appellant is in utter disgrace to the cannons of safe administration of criminal justice. The learned counsel in the circumstances, prayed for acquittal of the appellant from the charge.

12.On the other hand, learned Additional Prosecutor General has vehemently opposed the contentions raised by the learned counsel for the appellant with the averments that the prosecution through leading cogent and confidence inspiring evidence proved its case against the appellant; that admittedly, it was an unseen occurrence but PW-13 Javaid Iqbal and PW-14 Intizar Ahmad are the witnesses of last seen when the deceased was found in the company of appellant and other co-accused; that the learned trial court while appreciating the prosecution evidence in its true perspective was well justified in convicting/sentencing the appellant. Learned Additional Prosecutor General lastly prayed for dismissal of appeal.

13.I have given my anxious consideration to the arguments advanced by the learned defence counsel as well as learned Additional Prosecutor General and gone through the record available on file with their able assistance.

14.Admittedly, it was an un-witnessed occurrence and nobody was named as an accused in the F.I.R. Initially the occurrence was reported by Muhammad Aslam (PW-9) who along with Farman Ali (given up) went to his fields of sugarcane to ease himself on 19.01.2006 at 11:00 A.M when he found a dead body in the sugarcane fields situated in Square No.9, Killa No.23 and the dead body was not identifiable as animals had eaten face and other parts of unknown deceased. This witness reported the incident to the police about un-known dead body upon which Arshad Javaid, A.S.I (PW-10) recorded the statement of the complainant (Exh.P.H) and Arshad Javaid, A.S.I (PW-10) sent the complaint to the police station for registration of criminal case through Ghulam Abbas, Constable-1891. It is

noticed that neither F.I.R. was exhibited at the trial in support of alleged version nor Ghulam Abbas, Constable-1791 was named as witness in the calendar of witnesses. The case of prosecution is based on the circumstantial evidence and extra judicial confession. When a case is based on the circumstantial evidence and extra judicial confession, the court is bound to be extra cautious. As circumstantial evidence has its own limitation and extra judicial confession was a weak type of evidence. For the first time during the investigation, it came in sight on 17.05.2006 when Abdul Hafeez (PW-15) brother-in-law of the deceased approached to the Investigating Officer (PW-11) and identified dead body from the last worn clothes and other articles of the deceased kept in Malkhana and disclosed the name of the deceased as Latif and informed to the police that deceased-Latif is his brother-in-law/sister’s husband. The dead body of deceased was handed over to Abdul Hafeez (PW-15) by the Investigating Officer and same was buried by him. Thereafter on 26.05.2006 Abdul Hafeez (PW-15) moved an application (Exh.P.K) to D.S.P. Investigation City Circle wherein he narrated that Muhammad Latif is not traceable and on the basis of suspicion he named Dilshad Masih (appellant), Wajahat Ali alias Sahiba, Muhammad Rafique and Islam Din. In the said application (Exh.P.K) complainant-Abdul Hafeez (PW-15) did not mention that he had identified dead body of deceased and received the same on 17.05.2006. The statement of Abdul Hafeez (PW-15) is not trustworthy as he concealed material facts in his application (Exh.P.K). Abdul Hafeez (PW-15) admitted as correct during cross-examination that:

“I have not mentioned in my application (Exh.P.K) that we identified the last worn clothes of the deceased and then identified the dead body of deceased”.

This witness during cross examination stated that his statement is based on hearsay. He deposed as under:-

“It is correct that my statement is hearsay and I have not direct knowledge of this occurrence.”

Admittedly the statement of Abdul Hafeez (PW-15) is based on hearsay, so no sanctity can be attached to his statement and he had failed to prove allegation against the appellant and no one can be convicted on the basis of suspicions and presumptions however strong they may be. The Hon’ble Supreme Court of Pakistan held in the case of Abdul Jabbar v. The State (PLD 1964 Supreme Court 81) which reads as under:-

“Suspicion, however strong, can not take place of proof”

15.I have considered the evidence available on the record with due care and caution and observed that there is nothing on the record which could connect the appellant with the commission of offence.

16.Moreover, fact remains that prosecution has produced Javaid Iqbal (PW-13) and Intizar Ahmed (PW-14) as witnesses of last seen and extra judicial confession. That statements of these witnesses are not reliable and trustworthy. Javaid Iqbal (PW-13) deposed as under:-

“On 06.01.2006 at about 8:00 P.M. I along with Intizar Hussain PW was present in my shop situated at Adda Chak No.120/JB. Latif deceased, Wajahat alias Sahiba, Muhammad Rafique, Dilshad accused present in came there.”

Whereas Intizar Ahmad (PW-14) deposed as under:- “I have a shop of glass at Bawa Chak. On 06.01.2006 accused persons namely Wajahat alias Sahib, Muhammad Rafique and Dilshd along with Muhammad Latif came at my shop.”

17.The conduct of Javaid Iqbal (PW-13) and Intizar Ahmed (PW-14) creates doubt because Javaid Iqbal (PW-13) stated that he and Intizar informed the family members of Latif-deceased strangely after four months. Both prosecution witnesses Javaid Iqbal (PW-13) and Intizar Ahmed (PW-14) were very closely related to deceased as deceased-Latif was brother-in- law/sister’s husband of Javaid Iqbal (PW-13) whereas Intizar is Tayazad of complainant-Abdul Hafeez (PW-15) but they remained silent for considerable period which is fatal for prosecution case. Javaid Iqbal (PW-13) deposed as under:- “I and Intizar informed the family members of Latif- deceased when Latif-deceased did not come to the house for about four months”.

18.Even otherwise last seen evidence is the weakest type of evidence, which as per settled principle of criminal justice, solely can not be made basis for conviction of any person especially in a case of capital charge. It is held in the case of Ibrahim and others v. The State (2009 S C M R 407) wherein it is observed by the Hon’ble Supreme Court of Pakistan which reads as under:-

“-----Undeniably, it was an unwitnessed occurrence and the prosecution case rested on circumstantial evidence. It is well settled that circumstantial evidence should be like a well knit chain whose one end should point to the accused and the other to the deceased....”

Even the complainant (PW-15) had not narrated the fact of last seen evidence in his application (Exh.P.K) and the evidence of last seen is in conflict of version of Abdul Hafeez (PW-15). Even both prosecution witnesses Javaid Iqbal (PW-13) and Intizar Ahmed (PW-14) made dishonest improvements in their statements while appearing before the learned trial court on all material points. It is observed that their entire examination-in- chief was confronted with their previous statements. I am, therefore, of the view that the evidence of last seen furnished by Javaid Iqbal (PW-13) and Intizar Ahmed (PW-14) is not worthy of reliance.

19.As far as extra judicial confession by the relatives of the accused persons along with accused persons was allegedly made by the accused and their family members does not repellent to common sense. Both PWs Javaid Iqbal (PW-13) has not mentioned when and where, and who appeared before them for confession. Even Javaid Iqbal (PW-13) during cross examination deposed as under:-

“I have not recorded in my statement under Section 161 Cr.P.C. that legal heirs of the accused along with accused persons requested for pardon and after consulting the legal heirs of the deceased we refused to accept their request for pardon. Volunteered stated that the accused and legal heirs approached us after registration of case.”

Whereas Intizar Ahmed (PW-14) during cross examination deposed as under:-

“.......On that we suspected that Latif had proceeded with accused persons, therefore, they were arrested and made their confession; the parents of the accused

persons and accused persons themselves requested for pardon.”

20.On the point of extra judicial confession by the legal heirs of the accused and accused persons there is clear contradiction in evidence of both PWs Javaid Iqbal (PW-13) and Intizar Ahmed (PW-14). Even there was no reason with the accused and their legal heirs to confess their guilt before the said witnesses. It is by now well settled law that the evidence of extra judicial confession joint or otherwise has no value in the eyes of law. The manner in which the accused persons and their legal heirs had allegedly made extra judicial confession is not believable. Overall impact of events raises serious doubt about the statements of PWs and version of these PWs regarding extra judicial confession is neither probable nor confidence inspiring.

21.From the perusal of the whole record there is no incriminating material available on file to connect the appellant with the commission of offence. It is established principle of law, that no one can be convicted on the basis of conjectures and surmises. In the instant case the whole prosecution case is based upon circumstantial evidence. It is settled principle of law that in absence of any direct evidence, circumstantial evidence should be beyond of all doubts and the same must be in the shape of chain. So, in the instant case dead body of un-known person was recovered, place of occurrence was not pointed out by the accused and the appellant was involved in the instant case on the basis of suspicion. It is established principle of law that no one can be convicted on the basis of suspicions and presumptions, however, strong they may be. For conviction proof is required, which is lacking in the instant case.

22.The upshot of the above discussion is that the prosecution has badly failed to bring forth charge against the appellant beyond any reasonable doubt. In the foregoing facts and circumstances, it seems that it was an unseen occurrence and unknown persons committed murder of the deceased-Latif whereas appellant was involved only on the basis of suspicion.

23.Resultantly, while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 23.07.2007, Crl. Appeal No.1223 of 2007 filed by Dilshad Masih-appellant is accepted in toto. Consequently, he is ordered to be acquitted of the charge in case F.I.R. No.125 of 2006 dated 19.01.2006, offence under Sections 302, 382, 411, 109, 34 P.P.C., registered at Police Station, Nishatabad, Faisalabad. He is directed to be released forthwith, if not required in any other case.

(AALIA NEELUM)

JUDGE

Approved for reporting.

Hameed/*