' Muhammad Shahid and Amir Shehzad appellants through Criminal Appeal No.2131 of 2002 have challenged their conviction and sentence recorded vide the judgment dated 30-11-2002 by Mr. Khalid Mehmood Malik, learned Additional Sessions Judge, Wazirabad in case F.I.R. No.161 dated 7- 6-2001 registered under section 302/34, P.P.C. With Police Station Sadar, Wazirabad.
2. They were convicted under section 302(b) read with section 34, P.P.C. And sentenced to suffer imprisonment for life each as Ta'zir and to pay compensation Rs.50,000 each to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in default thereof to further suffer six months simple imprisonment. They, however, were extended the benefit of section 382-B, Cr.P.C.
3. The petitioner/ complainant Muhammad Akbar has brought Criminal Miscellaneous No.1233 of 2002 for enhancement in their sentence as well as amount of compensation.
4. As both these matters have arisen out of one and the same case and under common sets of facts, hence are being disposed of by this single judgment.
5. The detailed facts have been incorporated in the impugned judgment, hence I avoid to burden the record unnecessarily by repetition of the same here.
6. However, the brief facts relevant for the disposal of the same are that Muhammad Shahid and Amir Shehzad (hereinafter to be referred as the appellants) were tried under section 302 read with section 34, P.P.C. In the afore-mentioned case for allegedly on 7-6-2001 at about 1-00 p.m. In furtherance of their common intention committing the Qatal-e-Amd of deceased Tassaduq Ikram by drowning him in Nokhar Branch Canal within the area of Mauza Kolar Police Station Sadar, Wazirabad, District Gujranwala resulting into his death.
7. They firstly were formally charged under the said offence for causing the death of the deceased by way of drowning him in the above mentioned canal. The charge, thereafter was amended to the effect that they had throttled him to death amounting to his Qatal-e-Amd. They had denied that charge.
8. The prosecution in support of it's case against them has mainly relied upon the last seen evidence, extra-judicial confession, pointation of place of murder of the deceased by them and recovery of his dead body in consequence thereof and that of the articles belonging to him (deceased), medical evidence and the motive.
9. The learned trial Court has believed all such pieces of evidence except that of motive and consequently convicted and sentenced them as mentioned above.
10. The evidence regarding the deceased having been last seen in their company has been furnished by P.W. Muhammad Akbar complainant (P.W.2) and Muhammad Mansha (P.W.7).
Muhammad Akbar has stated himself to the uncle of the deceased. It has been argued by the appellant's side that he in fact had no direct relation with him and had just posed himself to be so and it was with an ulterior design as he along with Sanaullah, the real uncle of the deceased has managed to kick him out as well as his mother from their house and ultimately sold the same and misappropriated the proceeds received therefrom and also grabbed their landed property, and that even otherwise his story in view of the circumstances appearing from the evidence is not ringing with truth and so he is not a reliable witness.
11. According to his version on 7-6-2001 at about 1-00 p.m. The appellants came to his house in the aforesaid village and they took away his nephew Tassaduq Ikram with them for taking bath in the Nokhar Canal Bridge located within the area of Mauza Kolar but he did not turn up thereafter and on the next day the appellants came to him and told that he (deceased) had accompanied them to the aforesaid canal for taking bath and from there he went somewhere to ease himself but did not return and thereupon he along with other inhabitants of the village went to that canal and there they (appellants) pointed out the place where they and he had taken bath in the canal and therefrom the dead body of the deceased was recovered.
12. He in the cross-examination has stated that Muhammad Akram was the father of the deceased, who- had died about 10/12 years ago. He has further stated that Khan Muhammad is grandfather of the deceased and Sanaullah P.W. Is his uncle. The father of the deceased when had only one brother namely Sanaullah P.W., he then how could be his uncle. The same is not understandable in any way. Anyway, this has clearly been affirmed from the evidence on the record that Sanaullah was his only real uncle and not this witness.
13. He has become complainant in the case and not the real uncle of the deceased. His extra interest in the matter is a suspicious circumstance. This suspicion is further strengthened by the fact that the deceased's father had 7-acres of land. He has admitted that the deceased's mother did not inherit any land from her deceased husband. He has also admitted that the said land is in the cultivating possession of Aslam and Amin as tenants and the benefit of the same is being received by Sanaullah P.W. It was the case of appellants that he along with Sanaullah is receiving the benefits of the land. He has also admitted that deceased Tassaduq Ikram was in the habit of visiting his paternal aunts and he used to slip away from the house for 2/4 days without information. The plea of the defence was that he was kicked out of the house by Sanaullah P.W. The above mentioned admitted facts in the evidence clearly suggest that neither the mother of the deceased nor he himself was given anything from the property of his deceased father. This also shows that he perhaps due to the ill-treatment of Sanaullah used to slip away from the house. The over interest of the witness shovis that he perhaps was in league with Sanaullah in depriving the deceased of the property of his father and that could be the only motive with him to become the complainant and not any other. This belief is further strengthened by the fact in the evidence of Muhammad Mansha (P.W.7) that the house of the deceased has been sold for Rs.1,00,000 and obviously it was not by the deceased and rather by some one else and he could only be Sanaullah and none else. So this has persuaded me to believe that he has not spoken truth by stating himself to be uncle of the deceased. He also seems to have some hidden interest in the matter as indicated above in coming forward.
14. His evidence also shows that he perhaps was not much interested in the recovery of the deceased and his death. This is so evident from his evidence that he did not inform the police about the same and rather some one else had informed the police in that respect but he on the coming of the police has made haste to become complainant. He perhaps wanted to keep the matter in his own hand to shape the thing according to his whims. The reason for the same perhaps was as indicated above. This all has reflected from the above quoted circumstances and admitted position in his evidence. So, he seems to have not come forward with straight and clean intention.
15. In this regard it is noteworthy that he did not report the matter to the police on the day of occurrence when the deceased did not return back to his house. It was also not on the next day even till the dead body of the deceased was found while before than that the appellants, as per his showing had come to him and delivered to him the articles belonging to the deceased. He has also admitted that he did not apprehend the appellants even after the recovery of the dead body. He has also admitted that he does not know that who had informed the police about the matter. This shows that he even did not bother to inform the police about the incident even after the recovery of the dead body. This was state of his concern with the deceased. This is further reflective from the fact in his evidence that he did not try to know that who had informed the police regarding the matter.
16. He has also made lot of improvements in his statement at the trial than the one before the police. Those were duly brought on the record by way of confrontation. However, I don't feel necessary of discussing all those here because of the fact that the motive part of the prosecution story narrated by him has not been believed by the learned trial Court and these mostly related to that aspect of the matter.
17. However, one significant thing to be mentioned here in this context is that Muhammad Mansha and Sanaullah P.Ws. As per his evidence have also seen the deceased in the company of the appellant at about 1-15 p.m. On the day of the occurrence. He was duly confronted with such portion in his statement with the one before police (Exh.P.B.). He did not mention such fact in his said statement before the police. This improvement in his statement at the trial was definitely with dishonest motive. Thus such portion of his statement is excluded from the consideration.
18. The crux of the above discussion is that he has demonstrated some such over interest in the matter without any direct relation with the deceased in becoming complainant, which normally is not done. The same obviously was with some motive.
19. The delay of about 31 (thirty one) hours in reporting the matter to the police is also significant in this case and the same heavily recoiled on the veracity of the witnesses of the last seen. There has not been furnished any satisfactory explanation of the same. The same is, thus fatal to the prosecution case. The story narrated by him, therefore, was also not inherently reliable. His evidence, therefore, is discarded.
20. Muhammad Mansha (P.W.7) has also narrated the story of having last seen the deceased in the company of the appellants in village Kot Waris. According to him, he saw Tassaduq Ikram deceased and Amar Shahzad appellant going on a bicycle while Shahid in a Rickshaw and on inquiry the deceased and the appellants told him that they were going to Nokhar Canal Branch to take bath. This witness is maternal cousin of the above said P.W. Muhammad Akbar. This has been so admitted by Muhammad Akbar himself in his cross-examination. This shows that the close relatives had gathered with design to rope in the appellants due to their above indicated motive.
This witness is in the police department as admitted by his own self. He in the days of occurrence had remained on leave for about ten days. This has so been found from his cross-examination.
This shows that he has also played role in fabricating evidence against the appellants being well- versed with the art.
21. He, even otherwise, seems to be a chance witness as according to him he and Sanaullah were standing on the road per chance when he had seen the deceased in the company of the appellants. He has narrated that the appellant Amar Shehzad was on the bicycle with the deceased while Shahid in Rikchaw. He has admitted that he did not note the number of the Rikchaw and also does not know the name of it's driver. His this story, thus being chance witness is not readily believable. The same has put me to guard to accept it particularly when he is related to the complainant Muhammad Akbar.
22. He too has admitted that he did not inform the police before the search of the dead body and also did not know that who had informed the police about the matter. This was the state of his concern with the deceased, who was missing and he even did not bother to inform the police in respect of the same. He has also admitted that all the P.Ws. Were related to him. He has further stated in his cross-examination that he did not try to apprehend the appellants after the recovery of the dead body. He has also admitted that the house of the deceased has been sold. It was put to him by the defence that the sale proceeds have been distributed between him, Akbar and Sanaullah P.Ws. Although he has denied it but it appears that he had some live interest in the matter. The house of the deceased could be sold only by Sanaullah P.W. And none else. He is closely associated to him in the matter. So the defence plea that they had distributed among them the sale proceeds of the house seems to be reasonably correct. His version, therefore, to me is not confidence inspiring. He too for these reasons was not a reliable witness and has wrongly been relied upon. I, therefore, discarded his evidence too.
23. The evidence of extra judicial confession by the appellant Muhammad Shahid has been furnished by P.W.2 Muhammad Malik. He admittedly is the brother of wife of Muhammad Akbar P.W., whose some hidden interest in the case has very vividly been reflected from the evidence. He has not been found to be a. Reliable witness. This witness is closely related to him. It, therefore, would also not be safe to rely upon him.
24. This is also because of the fact that he has stated that Shahid appellant has narrated before him that Amar Shehzad appellant has brick bathed the deceased on the back of his head, who as a result of the same fell down and then he pressed his throat by placing arm on his neck and he due to the same expired and thereafter they had thrown his dead body in the canal.
25. He is nephew of P.W. Sanaullah, who from the facts in the evidence has been found to have availed the benefit of property of the deceased. So he could have caused to depose falsely against the appellants on that count.
26. Another fact, which has made his version not worth believing and that is he as per his own showing after the above disclosure/confession made by Shahid remained quiet in his house for one or two days till the police had called him and recorded his statement. According to him the said appellant has made confession before him about 5/6 days after the occurrence. Muhammad Akbar P.W. Is his sister's husband and complainant in the case. The case already stood registered when according to him the said appellant made confession of his guilt before him. His remaining quiet for one or two days even after hearing such thing from appellant Shahid is not understandable. His conduct, therefore, in the matter is dubious.
Not only this he has also admitted that he did not try to apprehend the appellants after they had made confession before them. This could be quite natural and probable if on hearing such thing from that appellants, he had apprehended them but this was not done by him so brought on the record by the defence. These seem to be with dishonest design. He too, therefore, is not a reliable in this case. His testimony, therefore, is also discarded.
30. It may also be mentioned here that such type of evidence has always been considered as of weak type and similarly of last seen. One weak piece of evidence can hardly corroborate another similar piece of evidence unless very strong corroboration to the same by an independent source may be forthcoming. The same at least is not available in this case.
27. Hence, all these reasons make his story doubtful. The same is not ringing with truth. He, therefore, too was not a reliable witness.
28. Muhammad Aslam P.W.4 has furnished evidence regarding extra-judicial confession of Amar Shahzad appellant. He has also deposed in similar terms. He is brother-in-law of aforesaid Sanaullah, who as said above has availed the property of the deceased after his death. So he could depose against the appellant falsely on that count.
29. He has also made certain improvements in his statement at the trial than the one before the police as he did not state before the police that Amar Shehzad appellant had told him that after taking the little bath he brick bathed the back side of the head of the deceased and he fell down and that Shahid appellant has pressed his neck by placing arm on the same. He was duly confronted with his such statement at the trial with the one made before the police (Exh.D.B.). It was found that he did not mention such thing before the police. He has also made certain other similar improvements. Those duly have been
31. Medical evidence in this case is of no support to the last seen evidence. Dr. Nasrullah Khan (P.W.5) had found the following injuries on the dead body of the deceases:--
(1) Contused swelling 4.c.m. x 3 c.m. On the upper part of right side of neck, start from midline.
(2) Contused swelling 3 c.m. x 3 c.m. On the top of head, 14 c.m. From left ear and 18 c.m. From the forehead hair-margin. The death according to him has occurred due to Asphyxia and the injury No.1 to be sufficient to cause death in the ordinary course of nature.
32. I may mention here that the learned counsel for the appellants has vehemently contended that according to this witness, he has performed the autopsy on the dead body of the deceased on 7- 6-2001 and the time that elapsed between the death and post-mortem was 36 to 48 hours and if this period may be calculated, then the occurrence might have taken place on 5-6-2001 and not on 7-6-2001. I don't agree with the same because the mention of 7-6-2001 by the doctor as the date of post- mortem examination might be a typographical mistake or clerical error, while he in the cross-examination has made it clear that the dead body was brought to hospital on 9-6-2001 at about 10-15 a.m. So the mentioning of the said date of postmortem examination by him is of no effect and it in fact was 9-6-2001.
33. The doctor in his cross-examination has also stated that he did not mention the kind of weapon with which the head injury to the deceased was caused. He has also admitted that in case of Asphyxia the eyes and mouth remain open and tongue swollen and bruises also occur while these symptoms were not available in the case of the deceased. He has also admitted that after formation of gasses in the dead body the same may come up on the surface of the water and float on the same.
34. According to the evidence of the witnesses of the last seen, the dead body of the deceased had remained in the canal water. The witness has also admitted that he did not notice any sand or mud in the fingers and nails of the deceased. He has also admitted that in the case of drowning nails, hand and feet become like that of washerwomen and these symptoms were not present in the case of the deceased. He has also admitted that there was no water present in the stomach of the deceased. All this shows that the medical evidence has made it doubtful that the deceased was throttled to death and then his dead body H was thrown in the canal water. The medical evidence, therefore, is not supportive of such fact.
35. Abid Hussain-Constable (P.W.1) has stated that the depth of the canal water was about four feet and it was flowing torrentially. The water when was so deep and it was flowing torrentially then the dead body could not remain in the same for such long time. This too makes the recovery of the dead body from the place allegedly pointed out by the appellants as doubtful. This evidence seems to have been fabricated by the complainant party. The evidence regarding pointation of the place of the throwing away of the dead body in the canal by the appellants, therefore, is not believable.
36. I The evidence of recovery of articles of the deceased i.e. Cycle P.4, Pent P.5, Shirt P.6 and pair of Chappal P.7/1-2 is also not worth the while as it is in the evidence of P.W.2 Akbar that the appellants had produced these articles before him the next day of missing of the deceased from the house.
He did not produce these articles before the police before than 11-6-2001 and kept these with him. It is also interesting to mention that Muhammad Akbar has stated that he has produced these articles before the Investigating Officer on 9-6-2001. This stance of him is inconsistent to the recovery memo. Exh.P.C. This memo. Is shown to have been prepared on 11-6-2001. It may also be mentioned here that Muhammad Mansha P.W. Has stated that these articles were produced before the Investigating Officer on 11-6-2001. So, there is obvious inconsistency in them on that aspect of the matter. Therefore, the recovery of these articles seems to be doubtful. The same, thus, couldn't be used as of corroborative value to the last seen evidence.
37. The learned trial Court has already disbelieved the motive part of the prosecution story. So, it is hardly required to be discussed here.
38. The upshot of the above discussion is that prosecution has failed to bring all the chain of events consistently to link up the appellants with the same. The learned trial Court, therefore, has erred in believing the last seen evidence and extra judicial confession and taking the medical evidence and recovery of the above articles of the deceased to be supportive of the same. The authorities, thus referred to by it in these circumstances were not aptly applicable to the instant case.
39. 1 am, therefore, of the considered view that the prosecution has failed to bring home the guilt to the appellants beyond any shadow of reasonable doubt. They, therefore, have erroneously been convicted and sentenced. The impugned judgment of their sentence and conviction, therefore, is not liable to be sustained.
40. I, therefore, accept their appeal, set aside the impugned judgment of their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in custody.
They be set at liberty forthwith, if not required in any other case.
41. As a consequence of the same, the Criminal Revision Petition No.1233 of 2002 fails. The same is dismissed as such.