' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,73 of 2000 filed by Muhammad Zahid and Criminal Appeal No,76 of 2000 filed by Sabir Kamal and Abdul Khaliq convict appellants. All the three appellants were convicted and sentenced by learned Sessions Judge, Toba Tek Singh vide judgment, dated 21-1-2000 as under:-- Muhammad Zahid Imprisonment for life and to pay compensation to the tune of Rs,one lac under section 302(b), P.P.C. And 7 years'
R.I. And a fine of Rs,30,000 in default one year's R.I. Under section 201/34, P. P .C Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
Sabir Kamal Death and to pay compensation to the tune of Rs,one lac under section 302(b)/34, P.P.C.
Imprisonment for life and to pay a fine of Rs,50,000 in default two years' R.I. Under section 364, P.P.C. And 7 years' R.I. And to pay a fine of Rs,3,000 in default one year's R.I. Under section 201, P.P C.
Abdul Khaliq Death and to pay compensation to the tune of Rs,one lac under section 302(b)/34, P.P.C. And 7 years' R.I. And a fine of Rs,30,000 in default one year's R.I. Under section 201, P.P.C.
' Murder Reference No,29 of 2000 for confirmation or otherwise of death sentence of Sabir Kamal and Abdul Khaliq shall also be replied alongwith Criminal Revision No,160 of 2000 filed by the complainant through this single judgment.
2. Occurrence in this case had taken place at Deegerwela on 7-7-1998 within the Revenue Estate of Chak No,388/JB at a distance of 13 miles away from Police Station Sadar District Toba Tek Singh while the matter was reported to the police at 10 a.m. On 9-7-1998 at Alar Check Post by Khurshid Ahmad through complaint Exh.P.D. And the formal F.I.R. Exh.P.D./1 was recorded at 11 a.m. On the same day by Muhammad Munir Ahmad, Head Constable.
3. Briefly stated the facts of the case are that Rashid Khurshid complainant was employed in Glaxo Wellcome Medicine Company at Karachi and was told by his brother Arif Rashid on telephone that on 7-7-1998 at Deegerwela his father Rasheed Muhammad (deceased) went to look after his crops but did not return back till evening and that his said brother Asif Rasheed, mother Mst. Hafeez Akhtar and cousin Niaz Ahmad were perturbed. The complainant came back from Karachi and started search of his father but without success. However, mother of the complainant had told him that she had received telephone calls from some unknown person demanding a sum of Rs,20,00,000 otherwise to have the dead body of Rasheed Muhammad (deceased). The complainant suspected that some unknown accused had abducted his father for ransom and that he was apprehending danger that his father would be killed.
4. Investigation of the case was taken over by Haibat Khan, Inspector (P.W.10). He started investigation, recorded statements of the witnesses, recovered the dead body of the deceased, prepared injury statement Exh.P.B. And inquest report Exh.P.C. And on 22-7-1998 arrested Muhammad Zahid, Sabir Kamal and Abdul Khaliq, accused. All the three accused while in custody led to the recovery of cap, NIC, watch. Shoes. Tasbeeh, shirt etc. Which were taken into possession vide memo. Exh.P.H. The tractor/trolly was also secured vide memo. Exh.P.J. After completion of the investigation, all the three accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Statements of the accused were recorded under section 342, Cr.P.C. In which except Zahid, they pleaded false implication. After conclusion of the trial, all the three accused were convicted and sentenced as stated above.
6. In support of this appeal, learned counsel for Zahid appellant submits that it is a case of delayed F.I.R. And that in fact it being a case of blind murder, it was an unseen occurrence. Further submits that all the witnesses are related inter se with the complainant as well as the deceased and no independent witness has been produced by the prosecution. Adds that there -are material contradictions in the statements of the witnesses and dishonest improvements have been made by them. Further adds that nothing incriminating was recovered from the appellants. Lastly submits that story set up by the prosecution is not believable in any circumstance. Concluding his submissions, learned counsel submits that prosecution having failed to prove its case, the appellants are entitled to acquittal.
' Learned counsel for the remaining two appellants adopts the arguments advanced by learned counsel for Zahid appellant.
7. Learned counsel for tile State submits that story of the prosecution is not believable and that what Mst. Hafeez Akhtar stated before the trial Court was not incorporated in the F.I.R. Lodged by her son Rashid Khurshid.
8. On the other hand, learned counsel for the complainant who has also filed Criminal Revision No,160 of 2000 submits that the witnesses have no enmity against the appellants so there was no question of false implication. Learned counsel for the complainant has read before us the statement of Zahid appellant recorded under section 342, Cr.P.C. Who apart from himself has also involved his co-accused in the instant case.
9. We have heard learned counsel for the parties and have gone through the record. According to prosecution case, the occurrence had taken place at Deegerwela on 7-7-1998 while the matter was reported to the police at 10 a.m. On 9-7-1998 though distance between the place of occurrence and the police station is 13 miles. It is important to note here that according to case of the prosecution, the deceased was taken from his house in the presence of Mst. Hafeez' Akhtar and Asif Rashid, wife and son of the deceased but none of them reported the matter to the police and they waited for Rashid Khurshid to report the matter to the police. The said Rashid Khurshid was working at Karachi. The complainant did not mention any motive in the F.I.R. The motive was later on introduced by Mst. Hafeez Akhtar and that is that Sabir Kamal and Abdul Khaliq accused owned a sum of Rs,5,00,000 to the deceased and they in order to avoid 'return of said amount and to extract further amount of Rs,20,00,000 had abducted and killed the deceased. Had this been the actual motive, the same should have been mentioned in the F.I.R. We are thus, of the view that it was a concocted motive introduced later on to falsely implicate the present appellants and we disbelieve the same.
' Rashid Khurshid Ahmad, complainant While appearing as P.W.5' before the trial Court has made lot of improvements by stating many C facts which were not mentioned in the F.I.R. In examination- in-chief, Rashid Khurshid (P.W.) stated that all the three accused in the Court premises in his presence disclosed to Haibat Khan, Inspector (P. W.10) that they had killed the deceased and offered to lead to the recovery of belongings of the deceased when it was never his case in the F.I.R.
The other improvements made by this witness are at page 19 of the paper book. Similarly, Mst.
Hafeez Akhtar P.W.6 have made lot of improvements and she was confronted with those statements. The D improvements are at pages 27 and 28 of the paper book. The facts which were unfolded by her in her statement before the trial Court were never mentioned in the F.I.R. Lodged by her son Rashid Khurshid, P.W. Though the complainant had met his mother and brother Asif Rasheed before going to police to lodge the F.I.R. Had Mst. Hafeez P.W. Been present at the time of occurrence, she must have told all the facts to her son who went to lodge the F.I.R. All the story has been concocted later on.
' Muhammad Imran P.W.7 though claimed to be not related to the deceased or the complainant party but admitted that he was from their brotherhood. The story given by him is improbable. He is not even resident of the Chak, where the occurrence had taken place and in fact there is distance of 11 kilometers between the residence of this witness and the place of occurrence. This witness has admitted that he had no agricultural land in the Chak where the occurrence had taken place. His presence at the time when the quarrel had allegedly taken place between the deceased and the accused is doubtful. Then, there is statement of Ijaz Ali, P.W.9. According to his statement, he alongwith Chiragh Din P.W. (not produced) had seen the appellants on tractor/trolly bearing Registration No,4161 near the bridge, Abdul Khaliq accused was on the driving seat while Sabir Kamal and Muhammad Zahid picked up the dead body of Rasheed Muhammad from the said trolly and dropped the same in the canal in their view. Had Ijaz P.W.9 and Chiragh P.W. (not produced) been present there and had seen the appellants throwing the dead body into the river, the first thing which they should have done was either to report the matter to the police or to near relations of the deceased. Ijaz P.W.9 admitted that he is resident of the Chak where the occurrence had taken place and even is neighbourer of the deceased but he informed the police only on 11-7- 1998, four days after the occurrence. His evidence on this score alone is not creditworthy.
' Dr. Ghulam Dastgir, Medical Officer P. W.1 had conducted post-mortem examination at 5 p.m. On 11-7-1998 on dead body of the deceased. The duration between the death and post-mortem given by him was 3/7 days. Story of the prosecution was that the deceased was taken from his house on 7-7-1998, F.I.R. Was lodged on 9-7-1998 and the post-mortem was conducted on 11-7-1998. The duration given by the doctor as 3 to 3 days does not fit in with the case of the prosecution and the deceased even could have been murdered on 4th, 5th and 6th of July, 1998.
' The so-called extra-judicial confession allegedly made by the accused in police custody before the complainant is not worthy of any credence. Moreover, the recoveries of holdings of the deceased from the appellants is. Also not believable for the reason that there was no need on the part of the appellants to have concealed those ordinary type of articles in a manner as has been described by P.W.S. The appellants have also tendered in their defence many documents to prove their innocence.
' During the course of arguments, learned counsel for the complainant, who had filed criminal revision, has read before us the statement of Zahir accused recorded under section 342, Cr.P.C.
Specially reply to the question. "Why this case against you and why the P.Ws. Deposed against you."
Answer to this question seems to have been given by the counsel who was defending him before the trial Court either with ulterior motive or having connived with the complainant party. No defence counsel would get this type of statement recorded specially in a case under section 302, P.P.C. Merely, on the statement of Zahid, appellant we cannot maintain conviction against him and his other co-convicts. It is settled principle of law that prosecution has to stand on its own legs and not to take benefit of weakness of the defence.
' As a result of above discussion, we are of the considered view that it was a blind murder, no one has seen the occurrence rather it is a case of no evidence. The Court in order to award or maintain conviction has to base the finding on evidence and that too having come from an unimpeachable source. Resultantly, appeals filed by all the three appellants are accepted, the conviction and sentence recorded against them by the trial Court is set aside and they are acquitted of the charge. All the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.
' The death sentence of Sabir Kamal and Abdul Khaliq, appellants is not confirmed. Murder Reference No,29 of 2000 is replied in the Negative. Criminal Revision No,160 of 2000 filed by the complainant is dismissed.