' Muhammad Saleem alias Nanna and Shahzad have brought Criminal Appeal No, 1364 of 2002 against their conviction and sentence recorded under section 302(b)/392/34, P.P.C. In case F.I.R.
No,439 registered with Police Station, Peoples Colony, Faisalabad vide the judgment, dated 13-7- 2002 by Rana Riaz Ahmad Khan, the learned Additional Sessions Judge, Faisalabad. They were convicted and sentenced in the following manner:--- Under section 302(b)/ 34, P.P.C.They both (Muhammad Saleem alias Nanna and Shahzad) sentenced to life imprisonment and to pay compensation Rs,50,000 each to the legal heirs of the deceased and in default thereof to further undergo 6 months S.I.
Under section 392/34, P. P .C.They both sentenced to 8 years R.I.Each and to pay fine of Rs,50,000 each and in default thereof to further undergo imprisonment for six months. All the sentences were directed to run concurrently. The benefit of section 382-B, Cr.P.C. Was however, extended to them.
2. Muhammad Alamgir, the petitioner/complainant has brought the above mentioned Crl. Revision (No,802 of 2002) seeking conversion of their sentence of imprisonment for life under section 302(b)/34, P.P.C. To death.
3. As both these matters have arisen out of one and the same case and under common set of facts, hence, are being disposed of by this single judgment.
4. Briefly the facts relevant for the disposal of the same are that on 18-8-2001 at about 7-35 p.m.
Muhammad Alamgir, the petitioner-complainant (P.W.2) has made statement Exh.P.A. Before Muhammad Aslam, S.-I. At the Police Station Peoples Colony Faisalabad to the effect that he resides in Mohallah Tariq Abad. Faisalabad. His real brother Aurangzaib is residing along with his family in Street No,12 Abdullahpur. His wife and children had gone to London in connection with some marriage there. He (Aurangzaib) was living in his house with his son Waqas. On that day Waqas, his nephew had come to him. At about 5-30 p.m. He accompanied him to his house to leave him there. They when reached there, the doors of the house (Kothi) were lying open. Waqas when entered the room of his brother Muhammad Aurangzaib, he found him lying there dead. He was strangulated to death by video lead. His shirt was removed and tongue protruded from the mouth and saliva was coming out of the same. The valuable articles, cash amount and ornaments were also missing therefrom his room. His brother had been murdered by some unknown assailants. His dead body had been despatched to Allied Hospital, Faisalabad, and he till then did not know the assailants and the cause of his murder. The said S.-I. After recording his statement read it over to him and he signed the same in token of it's correctness.
5. He (S.-I.) proceeded to Allied Hospital, Faisalabad. He there found the dead body of the deceased. He inspected the same and prepared injury statement Exh.P.H. And inquest report Exh.P.J. He handed over the dead body to Zafar Mehmood, Constable (P.W.1) for taking it to the mortuary for post-mortem examination of the same.
6. He then proceeded to the spot and inspected the same in presence of the witnesses present there. He took into possession two pieces of video lead P.11 and P.11/1 vide memo. Exh.P.K. He also took into possession bed sheet P.12 and Pillow cover P.13 vide memo. Exh.P.L. He prepared the site plan Exh.P.Q. Without scale and recorded the supplementary statement of the complainant with regard to missing of mobile phone, ornaments and cash amount Rs,2,40,000.
7. The next day i,e, 19-8-2001 the Doctor Yousaf Hassan (P.W.8) conducted the post-mortem examination on the dead body of the deceased. The details thereof will be mentioned at some appropriate place. He, however, after the same handed over the last-worn clothes of the deceased. Post-mortem report, the police papers and sealed box to Zafar Mehmood, Constable (P.W.1), who produced the same before him (S.-I).
8. The same day, the S.-I. Took Shalwar P.1 of the deceased, sealed envelope and sealed parcel vide memo. Exh.P.L. And Exh.P.N./1 respectively. The sealed phial was taken into possession vide memo.
Exh.P.P. He then recorded the statement under section 161, Cr.P.C. Of the witnesses.
9. On 22-8-2001, he took the draftsman to the place of occurrence and got him inspected the same. On 23-8-2001, the said draftsman prepared the plan of the place of occurrence Exh.P.C. And Exh.P.C./1. He recorded his statement. He could not trace out the accused/culprits. Thereafter, the investigation of this case was transferred from him to Falak Sher, S.-I. (P.W.13).
10. He recorded the statement of Sharif Khan on 1-10-2001 and of Muhammad Saeed. He searched for the accused uptill 14-10-2001 but they were not available.
11. The rest of the investigation was conducted by Jamshaid Iqbal, Inspector (P.W.15). Mian Amjad Yasin (P.W.11) informed him that both the accused have confessed their guilt before him and he requested to arrest them. He arrested the accused from his (Mian Amjad Yasin) Dera. He recorded his statement under section 161, Cr.P.C. And of Ghulam. Shabbir (P.W.12). On 19-10-2001, Muhammad Saleem alias Nanna in police custody led to the recovery of wire P.2 and the same was taken into possession vide memo. Exh.P.B. He, prepared the site plan Exh.P.B./1 without scale of the recovery.
The same day, thereafter, Shahzad accused led to the recovery of currency notes worth Rs,10,000 of the denomination of Rs,1,000 each. He took these into possession vide memo. Exh.P.D. He (Shahzad) also led to the recovery of Sabal P.4 from his Baittak. The same was taken into possession vide memo. Exh.P.E. He then prepared the site plan Exh.P.E. Without scale of these recoveries.
' He recorded the statement under section 161, Cr.P.C. Of the recovery witnesses. On 21-10-2001. The accused Muhammad Saleem alias Nanna in custody led to the recovery of Mobile Phone P.4, charger P.6, wrist watch, P.8 and two ladies wrist watches P.9 and P.10 from the Almirah lying in his house. He (Inspector) took these into possession vide memo. Exh.P.H. He prepared the site plan Exh.P.O. Without scale of these recoveries. He recorded the statement under section 161, Cr.P.C. For the recovery witnesses and challaned the accused to Court.
12. They (appellants) were formally charged under sections 302/ 392/ 34, P.P.C. They pleaded not guilty.
13. The prosecution at their trial examined 15 witnesses in support of it's case. They are Zafar Mehmood, Constable (P.W.1), Muhammad Alamgir (P.W.2), Muhammad Waqas (P.W.3), Sardar Ali, M.H.C. (P.W.4), Rehmat Ali, Constable (P.W.5), Aurangzaib Draftsman (P.W.6), Muhammad Sharif Khan (P.W.7), Dr. Yousaf Hassan, Medical Officer (P.W.8), Arif Saeed (P.W.9), Muhammad Saeed (P.W.10), Mian Amjid Yasin (P.W.11), Ghulam Shabbir (P.W.12), Falak Sher, S.-I. (P.W.13), Muhammad Aslam, S.-I. (P.W.14) and Jamshaid Iqbal, Inspector (P.W.15).
' Zafar Mehmood, Constable has deposed that he escorted the dead body of Aurangzaib, deceased to the mortuary. After the autopsy the doctor has handed over to him the last-worn Shalwar P.1 of the deceased, sealed phial and sealed plastic packet, which he handed over to Muhammad Aslam, Investigating Officer.
' Muhammad Alamgeer, complainant has lodged complaint Exh.P.A. He has deposed almost on the same lines as are in it.
' Muhammad Waqas has also deposed similarly. Besides than this, he has also deposed about the recoveries mentioned above.
' Sardar Ali, M.H.C., has deposed about the safe custody in Malkhana of the sealed parcel pertaining to this case and dispatch of the same to the office of the Chemical Examiner.
' Rehmat Ali, Constable, has also deposed similarly.
' Aurangzaib, Draftsman has prepared the site plan Exh.P.C. And Exh.P.C./1.
' Muhammad Sharif Khan has deposed his having last seen the deceased in the company of the appellants, Muhammad Saleem alias Nanna and Shahzad.
' Dr. Yousaf Hassan has conducted the post-mortem examination on the dead body of the deceased. He found the following injuries on the same:
(1) A double ligature mark found around the neck of victim. The total circumstances of the ligature mark was about 42 c.m. No missing. The total width of the area in which ligature was found was about 7 c.m. Each ligature which was about 1/2 c.m. To 3/4 c.m. Width many abrasions in the above said area. The upper margins of the ligature area 6 c.m. Below the chin, 4 c.m. Below the left ear and 4 c.m. Below the right ear.
(2) A large contused swelling on the right cheek 12 x 11 c.m. Extending from below the right eye to jaw under line bone normal.
' In his opinion, the death in this case had occurred due to ligature strangulation leading to asphyxia. The injury No,1 was ante-mortem and sufficient to cause death in the ordinary course of nature. The visceras were sent to the Chemical Examiner to detect poison. The probable time between the injuries and death within few minutes and between death and post-mortem within 24 to 36 hours. Exh.P.G. Is the correct carbon copy of the post-mortem report and Exh.P.G./1 and Exh.P.G./2 are the correct copy of diagram of the injuries. He also signed the injury statement Exh.P.H. And inquest report Exh.P.J. The doctor handed over post-mortem report, last-worn clothes of the deceased, police papers, sealed box and sealed phial to Zafar Mehmood, Constable (P.W.1).
' Arif Saeed is the witness of recovery of two pieces P.11/1-2 of video lead, bed sheet P.12 and pillow cover P.13. He has attested the respective memos. Of these recoveries.
' On 19-8-2001, he had identified the dead body of the deceased at the time of post-mortem examination. He is also witness of the alleged seizure of two sealed parcels and a sealed phial.
' Muhammad Saeed has deposed that on 25-6-2001, the deceased had purchased GSM SIME of Mobile Phone from his shop for Rs,1,800.
' Mian Amjad Yasin has furnished the evidence of extra-judicial confession of two appellants (Muhammad Saleem alias Nanna and Shahzad). Further according to him, after they made such confession before him, he informed the police about the same. The police arrested them from his Dera.
' Ghulam Shabbir has also deposed on the same line as Mian Amjad Yasin.
' Falak Sher, S.-I., Muhammad Aslam, S.-I. And Jamshaid Iqbal, Inspector have deposed about their respective investigations. The details thereof have already been mentioned above. I, therefore, need not to repeat the same here.
' The report of Chemical Examiner Exh.P.R. Was tendered in evidence.
14. The appellants/convicts in their examination under section 342, Cr.P.C. Denied the allegation appearing against them in the prosecution evidence and also the above mentioned recoveries from them. The appellant Muhammad Saleem alias Nanna in reply to the question that why this case has been registered against him has stated that he is innocent. Actually, his sister Mst.
Shamim Akhtar took part in the local election. She was candidate from the penal of Lala Ahmad Raza and Muhammad Yousaf Minhas while on the other hand, Mian Amjad Yasin's brother Rana Muhammad Abbas etc. Were the contesting candidate of his (Mian Amjad Yasin's) group in the said election. In the said election, his group lost the seat and Ijaz group won the other seats. He produced the list mark "A" and mark "A/1", "A/2" of the candidates and also the notice issued by the Election Tribunal, T.T. Singh regarding the election petition filed by Farkhanda Begum, candidate of group of Mian Amjad Yasin, which is Mark "B" in support of his such plea. The similar is the plea of appellant Shahzad.
15. They both however, did not opt to produce evidence in defence and to depose on oath in disproof of the allegation appearing against them in the prosecution evidence.
16. The learned trial Court after hearing the parties convicted and sentenced them as mentioned above.
17. The petitioner/complainant Muhammad Alamgeer as said earlier has brought the above mentioned criminal revision petition seeking conversion of their sentence of imprisonment for life under section 302(b), P.P.C. To death.
18. Learned counsel for the appellants has contended that the prosecution as per its' evidence on record has not been able to bring home the guilt to them; that the evidence of extra judicial confession relied upon by the prosecution against them has always been considered by the superior Courts to be of weak type and in this regard reliance has been placed upon the case of Liaqat Ali v. The State 1995 PCr.LJ 905 (Lahore); Mst. Robin v. State 2001 M LD 1587 and Mulazim Hussain alias Dr. Kashif alias Dr. Abdali alias Nadeem and 8 others v. The State 2002 PCr.LJ 1015 (Lahore); that the evidence of last seen in the instant case furnished by Muhammad Sharif P.W. Is not worthy of credit; that the evidence of recoveries against them is fabricated one and the same is not sufficient to furnish corroboration to the evidence of extra-judicial confession; and that the learned trial Court had misappreciated and misread the evidence on record while convicting and sentencing them by way of the impugned judgment.
19. As against the same, the learned State Counsel assisted by the learned counsel for the complainant has supported the impugned judgment by saying that the prosecution has brought ample evidence on record to connect them with the charge against them; that all such evidence produced by it on record is worthy of credit; and that different pieces of evidence on record indicated above have sufficiently (sic) learned trial Court has not advanced legitimate reason in awarding them lesser penalty than death.
20. He has requested that their sentence of imprisonment for life may be converted into death.
21. 1 have carefully considered the submissions made from both the sides with the help of available record.
22. The prosecution's case mainly rests upon the testimony of complainant Muhammad Alamgir and deceased's son Muhammad Waqas, last seen evidence, extra-judicial confession of the appellants-convicts, recoveries and the evidence of the Investigating Officers.
23. The evidence of the complainant Muhammad Alamgeer P.W.2 and Muhammad Waqas P.W.3 relates to the factum of the deceased's death in his bed room and the missing of certain articles and cash amount of Rs,2,40,000 from his house and the reporting of matter by the former (Muhammad Alamgeer) to police vide his statement Exh.P.A..
24. It is needless to mention here that it's everybody's case that the occurrence was unwitnessed and it was blind murder. Hence the evidence of these two P.Ws. Is not of much consequence in the instant case as it is almost of formal type and not having direct bearing upon the fate of the case.
25. The plea of appellants-convicts is that they complainant's side in fact had not come to the place of occurrence as stated by them and rather they have no knowledge of the deceased's death and only they were informed of the same on telephone and thereafter they had reached there and Muhammad Alamgir had become complainant.
26. This plea has been spelt out from the facts in their evidence. It is admitted position in their evidence that they both had not accompanied the deceased to the hospital. The same according to their evidence was by Imran Mustafa Ali and Faqir Muhammad, who too were related to the deceased.
27. Alamgir is real brother of the deceased and Muhammad Waqas is his son though a boy of 14 years of age as per his own showing. I am sure that 'boy of such an age, particularly, who is student of 9th class (as stated by his ownself) has sufficient maturity of understanding of things and the situations. He and Muhammad Alamgir when were present in his house, they then definitely on seeing deceased lying dead must have taken him to the hospital. This could be a natural conduct on their part as one's real father and others brother was found lying dead in mysterious circumstances. No satisfactory explanation of their conduct of not accompanying or carrying the deceased to hospital has come on record. This gives rise to strong presumption that they in fact had not reached the place of occurrence as stated by them.
28. Even otherwise Muhammad Alamgeer has improved his statement at the trial than the one made by him before the police. He was confronted with his earlier statement Exh.P.A. Before the police than the one made at the trial.
' He has also admitted that he did not narrate details of missing articles and cash amount in Exh.P.A. He has stated (sic).
29. So far the above stated reasons, I do not find any justification to place much reliance upon their evidence as regards the above discussed aspect of their testimony.
30. I may mention here that Muhammad Waqas is also witness of recovery of certain articles. I would discuss his evidence as regards this aspect of the matter at an appropriate stage.
31. As regards the evidence of last seen of the deceased in the company of the appellants- convicts, the same has been furnished by Muhammad Sharif (P.W.7). He is the driver of Mian Amjad Yasin (P.W.11). The circumstances in the evidence has reflected the extra interest of Mian Amjad Yasin in the instant matter. His attitude seemed adverse to the appellants-accused and more sympathetic towards prosecution as reflected from the prosecution evidence on record. He is local politician and has remained Councillor and Deputy Opposition leader in Municipal Corporation, Faisalabad. He is witness too in this case and has furnished evidence of extra-judicial confession against the appellants-convicts. I will discuss the question of reliability of his evidence at some appropriate later stage. However, suffice it would to say here that Muhammad Sharif Khan (P.W.7) being driver of Mian Amjad Yasin could be under his influence. Hence, due to this position, it is duty cast upon the Court to secrutnize his conclusion (sic) to form(sic) any view about the reliability or otherwise of such piece of evidence furnished by the witness. Before discussing anything else in this behalf, I would like to mention here that it is not only enmity on the part of a witness which prompts him to depose against some one but there can be other factors as well which makes him to depose against him.. This may be the element of truth even persuading him to come forward to depose.
32. The careful scrutiny of his evidence has revealed that in fact at least element of truth was not there in the matter of his coming forward to depose in favor of the prosecution and against the appellants-accused. There seems the influence of Mian Amjad Yasin over him which has worked behind his coming forward to narrate the story of last seen the deceased in their company.
33. Now I analyse his such story keeping in view the standards of rationality and prudence.
According to him, on 18-8-2001, he and deceased Aurangzeb together offered Zoher prayer in Jamaya Mosque Fateh, Abdullahpur, Faisalabad. After saying the prayer, they came out of the mosque and outside the mosque both the appellants met Aurangzaib, deceased and they then went to his house. He himself thereafter went to the house of Mian Amjad Yasin and therefrom the same day on receipt of telephonic message from his house that his father was not feeling well went there and returned therefrom after 42 days of the same and learnt that the deceased had been murdered and he then disclosed the incident of accompanying the deceased to the appellants on the afore-mentioned day, and then he went to the police station and he made statement there.
34. The story seems not inherently reliable as, according to him, he had seen the deceased lastly in the company of the appellants on 18-8-2001, but he suddenly disappeared and did not narrate this story to anyone for long time. The story of his going to his village to enquire about his father's health for such a long time seems not sound and appealing to reason.
35. It appears that perhaps till such time the police could not succeed to get the clue of the real culprits and had remained searching for them. They however, when could not succeed, then such evidence in a blind murder/crime was fabricated.
36. This plea is strengthened by the fact in evidence that this witness came to the scene with such story about 42 days after the alleged incident. Had this story been true, he could immediately come to the kith and kin of the deceased and disclose the same to them or to the police or to his employer Mian Amjad Yasin. His story, all of a sudden and the same day, going to his native village to enquire about the health of his father and remaining there for a period of 42 days is not readily believable. This seems to be made up one to cover the delay in his such disclosure of having seen the deceased lastly in the company of these appellants.
37. Besides than this, he has improved his story as stated before the police that telephone message was received in the house of Mian Amjad Yasin in respect of the ailment of his father from his native village and he then went therefrom at 3-30 p.m. The same day and returned after 42 days. This was not so mentioned in his statement before the police. This shows that this was dishonest improvement on his part to cover the delay in his making of the story and to provide support to the prosecution case and probably at the instance of Mian Amjad.
38. It may be worth-mentioning here that except than the servant and relative (Ghulam Shabbir) or Mian Amjad Yasin none has come forward from the surrounding houses of the deceased with such story, while it is there in his evidence that the deceased's house is surrounded by the inhabitants houses. Anyway, the delay of 42 days in the disclosure of such story by this witness is irreconcilable to the idea of acceptability of the same. Hence, I have not been persuaded to rely upon the same. The C same seems to be fabricated one and an afterthought to provide support to the prosecution story.
39. As regards the evidence of extrajudicial confession, the same has been furnished by Mian Amjad Yasin and his close relative Ghulam Shabbir but before proceeding further, I would like to mention here that such evidence has always been considered to be of weakest type and not D worthy of credit unless supported by an independent evidence coming from source of an unimpeachable character andin this regard reference can be made to the case of Liaqat Ali v. The State 1995 PCr.LJ 905 (Lahore); Mst. Robina v. State 2001 M LD 1587 and Mulazim Hussain alias Dr. Kashif alias Dr. Abdali alias Nadeem and 8 others v. The State 2002 PCr.LJ 1015 (DB) Lahore 1015.
40. In this regard -the view expressed in the case of Sabir v. State 1998 PCr.LJ 1941 (Quetta) is as under:-- "that under the Islamic concept of criminal administration of justice, the extra-judicial confession has been considered as no evidence, for the purpose of awarding punishment to accused."
' In the light of the above principle, I proceed to analyse the evidence of Mian Amjad Yasin but before than this I would refer to the plea of defence that Mian Amjad Yasin due to political consideration was hostile to the family of the appellants-convicts and related to the deceased's side more closely than them and hence he has managed and manoeuvered the evidence against them. In this regard my attention was drawn to the last paragraph in his evidence. The same is reproduced hereinbelow for reference:- "Mian Haroon Yasin is my real younger brother. He lost the recent election and his opponents Yousaf Nazim and Naib Nazim Ahmed Raza were declared successful. I do not know that mother of Shahzad accused contested election on the lady seat against the group of my brother. It is correct that she had been successful. It is incorrect that I have involved the accused-persons falsely in this case due to this political rivalry. It is incorrect that I have deposed falsely."
' The same shows that the mother of the appellant-convict Shahzad belongs to rival group of the witness. As said above, he is local politician. He had remained the representative of the public in different capacities as is obvious from his evidence. There could be his liking and disliking being the local politician. It has appeared that the mother of the appellant convict Shahzad has defeated candidate of his group in local election held immediately prior to the incident. There could be with him feeling of hostility and adversity to the appellant-accused's side. So it cannot be gathered from his evidence that he absolutely had no or sense of hostility towards the appellants-convicts side. He was local influential person as admitted by his ownself. So, his feelings of hostility towards the appellants-convicts' side could prevail upon the police in their involvement in the instant case.
He is related to the deceased as sister of his cousin Ghulam Shabbir P.W. Is widow of the deceased.
So, due to that relationship too, he could be having feeling of sympathy and concern towards the deceased's side.
41. Here it may also be relevant to mention that both the appellants-convicts are closely related to the deceased as, according to the evidence, Saleem alias Nanna is sister's husband of the deceased and Shahzad is his (Saleem alias Nanna) maternal-nephew but it has appeared from the evidence of Muhammad Waqas P.W. That there had been some abnormality in the relationship of two families due to the demand of share in the property of wife of appellant-convict Saleem alias Nanna from the deceased. This idea has further been strengthened by the fact in the evidence of Muhammad Waqas that despite the murder of her brother the wife of Saleem alias Nanna had been living with him throughout all this time and she had never separated herself from him due to the murder of her brother. Had she thought her husband to be the murderer of her brother, she had definitely separated herself from him but this has appeared not so from his (Muhammad Waqas) evidence. This shows that she perhaps did not take her husband to be involved in the murder of her real brother Aurangzeb deceased.
42. So, in the above circumstances, the factum of relationship of the appellants-convicts with the deceased cannot be taken to be for granted for acceptability the idea of their being involved in the murder of their deceased relative unless there has been found cogent and convincing and confidence-inspiring evidence against them.
43. I now revert to the evidence of Mian Amjad Yasin. This has been brought forth about two months after the murder of the deceased. According to him, on 17-10-2001, at about 2-00 p.m.
When he alongwith his said cousin Ghulam Shabbir was present in his Dera, appellants convicts came to him and they confessed to have murdered the deceased in order to get his money.
44. His evidence due to the factum of two months delay in it's bringing forth seems to be having no value because as per his own showing both the appellants have jointly made the confession before them. The relevant lines from his examination-in-chief are reproduced herein below reference:-- "On 17-10-2001 at about 2-00 p.m. I and my cousin Ghulam Shabbir P.W. Were present on my Dera, the accused present in the Court Muhammad Saleem alias Nanna and Shahzad came to us and started weeping. They both stated before me that they had murdered Mian Aurangzeb deceased and they committed a blunder. They further stated that the police was after them. They requested us that they were in trouble and we being influential persons should help them in getting out of this trouble. I and Ghulam Shabbir asked them the reason of murdering Mian Aurangzeb. Saleem alias Nanna and Shahzad told us that Mian Aurangzaib had purchased a plot to establish a factory and he had sufficient amount with him for this purpose."
' It is needless to mention here that joint extra-judicial confession carries, no value in the eye of law.
In this regard reference is made to the case of Haji Muhammad and another v. The State 1979 PCr.LJ 460 (Lahore) (DB) wherein it was held as under:-- "An extra-judicial confession is very weak type of evidence and has seldom been relied upon, by itself, for being made a basis of conviction, Ghulam Qadir v. State (1) and in any case, a joint extra judicial confession is of no value."
' So due to the relationship with complainant's side and his being hostile towards the appellants' side and the delay of two months in bringing forth his story and the nature of the alleged extrajudicial confession made by the appellants before them make me not to rely upon his testimony. The same on the above points is liable to be thrown away. I, therefore, do not find him to be reliable witness in this case.
45. The same is the position of the other witness Ghularn Shabbir. He as said above is related to him (Mian Amjad Yasin). His real sister Mst. Nighat Parveen is the widow of the deceased. The same reasons on which the evidence of Mian Amjad. Yasin has not been found reliable are present in his case. His evidence, is therefore, also not reliable.
46. Again I have been persuaded to believe that Mian Amjad Yasin had played a role in maneuvering evidence against these appellants by bringing forth his servant and relative and prevailing upon the police. The evidence of extra-judicial confession therefore, is of no consequence to the prosecution case as regards the question of culpability of both the appellants-convicts.
47. The evidence of recovery is also hardly of any consequence in this case. Firstly, because the things allegedly got recovered by two appellants-convicts were admittedly of common pattern.
These were two pieces P.11 and P.11/1 of video lead with which the deceased allegedly was strangulated to death, bed sheet P.12 and Pillow cover P.13. It may also be mentioned here that according to evidence of P.W.3 Muhammad Waqas, the appellant Shehzad has got recovered Rs,10,000 (Ten notes of value of Rs,1000 each) and Muhammad Saleem got recovered the telephone wire P.2. Shahzad also got recovered Sabbal P.4 lying beneath G the bed in his house.
Muhammad Salem also got recovered Mobile Phone P.5, Charger P.6, -Mobile Phone cover P.7, Wrist Watch P.8 (Citizen), female wrist watch with leather strap P.9 and another female wrist watch Rado Brand P.10 from a bag which was lying in the cupboard. All these were of common pattern.
Therefore, recovery of these is absolutely of no consequence.
48. However, as regards the mobile phone of the deceased, the prosecution has relied upon the evidence of P.W.10 Muhammad Saeed. The same is to the effect that the deceased on 25-6-2001 had purchased GSM SIME bearing No,9667459 from his shop in consideration of Rs,1800. It is interesting to note that he in his cross-examination has stated that he does not know his date of birth and fall of the dates of two Eids prior to his statement. The person who does not know his date of birth and then how it is possible that he may be knowing or remembering mobile phone SIME number of the deceased. His evidence was brought' forth at a belated stage in the investigation of the case. The same seems to be procured one to strengthen the prosecution case. Hence, his evidence is also not worthy of reliance regarding the alleged recovery of mobile phone and it's charger belonging to the deceased from the appellants.
49. As regards the medical evidence, it has established that the death of the deceased had taken place but it is not sufficient to link the appellants convicts with the same in the absence of any other cogent evidence. It rather has shown that the death of the deceased had taken place in mysterious circumstances or that other than the one as alleged by the prosecution.
50. Dr. Yousaf Hassan at the time of autopsy on the dead body of the deceased had found two marks of colouring material on the front side of chest of the deceased and he handed over it to the police in a sealed bottle. The presence of the above colour marks on his chest and drops of semen on his penis tip goes to show that his death has occurred under the circumstances other than those appearing in the prosecution evidence on record. There seems matter of sex in the same. So the medical evidence has rather made question of death of the deceased more mysterious and doubtful. Hence, the medical evidence is of not, much help to the prosecution.
51. As regards the evidence of the Investigating Officers, the same too in such circumstances, is of no consequence to the prosecution case.
52. Hence, I find that the prosecution has not been able to bring home the guilt to the appellant- convict beyond any Shadow of reasonable doubt. The learned trial Court, therefore, has not properly appreciated the evidence on record and drawn conclusion therefrom. It, thus, has erred in convicting and sentencing both the appellants. Their conviction and sentence therefore, is not liable to be sustained. Their appeal (Crl. Appeal No,1364 of 2002), therefore, is accepted, the impugned judgment of their conviction set aside and they arc acquitted or the charge giving them the benefit of doubt. They are in custody. They be released forthwith, if not required in any case.
Consequently the Crl. Revision (No,802 of 2002) filed by the petitioner/complainant for enhancement of their sentence having no force is dismissed.
Appeal accepted.