This judgment will dispose of Crl.
Appeal No,105 of 2003 directed against the judgment dated 9-1-2003 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he convicted the appellants under section 302(b), P.P.C., and sentenced them to undergo life imprisonment each with further direction to pay Rs,50,000 each as compensation required under section 544-A, Cr.P.C. Or in default thereof six months S.I. Each.
2. Brief facts of the instant case as narrated by the complainant Talib Hussain in the F.I.R. Are that on the day of occurrence i.e, 8-2-2000 at about 8-00 a.m. His mother Mst. Maqboolan Bibi went to the house of Arif Hussain his real brother and saw Arif Hussain lying dead on a cot in the room, who told him about the incident and he himself saw Arif Hussain lying dead. Matter was reported to the police the same day.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Muhammad Akram, S.-I. Along with his subordinates proceeded to the spot. He prepared the injury statement Exh.P.O., and also inquest report Exh.P.Q. He also took into possession the blood-stained earth vide memo. Exh.P.F. Last-worn clothes were also secured by him through Exh.P.B. On 16-2-2000 Nazir Ahmad Inspector, arrested Muhammad Ibrahim, Abdul Rashid and Abdul Majeed. On 18-2-2000, Abdul Rasheed accused while in police custody got recovered household articles vide memo. Exh.P.H. On 22-2-2000 Muhammad Ibrahim accused while in police custody got recovered screw driver vide memo. Exh.P.l. On 24-2-2000 he arrested Mst. Razia Bibi who got recovered golden ornaments vide memo. Exh.P.J. And other articles like clothe vide memo. Exh.P.K.
' On 27-2-2000 Abdul Rasheed accused got recovered certain articles vide memo. Exh.P.L.
Ultimately after thorough investigation, he prepared the challan on 26-3-2000 and submitted the same for trial.
4. The prosecution in order to prove its case has produced as many as 13 witnesses including Doctor, Investigating Officers formal and relevant witnesses. After tendering in evidence report of Chemical Examiner Exh.P.R. And giving up some P.Ws. Learned A.D.A. Closed the prosecution evidence. Thereafter statements of the accused/appellants were recorded under section 342, Cr.P.C. In which they pleaded their innocence. After taking into consideration every aspect of the case and hearing the arguments advanced by learned counsel for the parties, learned trial Court convicted and sentenced the appellants as mentioned above. Hence, this appeal.
5. Learned counsel for the appellants in support of this appeal submits that it was a blind murder case, that appellants were not named in the F.I.R. And that there is no eye-witness in this case, that there is no mention of any theft in the house, that on the day of registration of the F.I.R. Which was lodged at 9-00 a.m. But according to the complainant the members of his family including Nishan Ali, P.W.5 and Akhtar Ali, P.W.6, who were the first cousins of the deceased had assembled at the place of occurrence at 8-00 a.m. He submits that if they had assembled at the spot at 8-00 a.m.
And the F.I.R. Was lodged at 9-00 a.m. Then why the names of these P.Ws. Were not mentioned in the F.I.R., that theft of articles and breaking of wall must have been mentioned in the F.I.R. Learned counsel submits that these witnesses have stated that all the household articles were scattered in the house but later on were planted on the appellant Abdul Rasheed, that the learned trial Court has acquitted Mst. Razia Bibi who according to the prosecution case had planned the murder and theft in the house of the deceased, that statement of Nishan Ali and Akhtar Ali P.Ws. Had contracted each other. Learned counsel submits that the story of Nishan Ali and Akhtar Ali P.Ws. That they were watering their fields, is not established from the record because the Investigating Officer had not visited that place. Learned counsel submits that for the sake of arguments if these P.Ws. Had seen a bundle of clothes on the head of the accused person, it cannot be said with certainity that those belonged to the deceased. Learned counsel submits that later on it transpired that wall of the house was broken then the real brother of the deceased the complainant and one Ashiq Hussain P.W. Must have heard the voice of breaking of the wall, as they were his neighbourers, that as far as extra-judicial confession is concerned, it is a joint extra-judicial confession and is inadmissible in evidence. Moreover, it is a weak type of evidence. Learned counsel submits that according to the extra judicial confession some drugs were given to the deceased but according to the report of Chemical Examiner no poison has been detected. Learned counsel submits that as per statement of Akbar P.W. Four accused had visited them while Muhammad Saleem P.W. Had stated that three accused had visited them, that according to these two witnesses namely Akbar and Saleem, accused came to them on 12-2-2000 but they made their statements on 13-2-2000 without any reasonable explanation, that recovery, if any, was effected from the house of one Anayat Arain who is neither accused nor witness of the case, that first recovery was effected on 18-2-2000 from the house of one Anayat Arien which falls within the jurisdiction of Police Station, Sangla Hill while second recovery was allegedly effected from the house of Abdul Rasheed appellant which falls within the jurisdiction of Police Station, Sadar Sheikhupura from where no public witness was joined.
Household articles are of common pattern. He submits that it is a case of circumstantial evidence and in suchlike cases all the chains are not connected inter se and if one chain is broken then the whole story of the prosecution falls on the ground. He submits that the prosecution has failed to prove the prosecution case. Reliance is placed on 2001 PCr.LJ 1877; 1995 SCM R 1350 and 1996 SCM R 188.
6. On the other, hand learned State counsel submits that there was no enmity between the appellants and the complainant party, that except `Waj Takkar' there is no other evidence to prove the prosecution case. There is recovery of household articles and that the extra-judicial confession has no sanctity because the same is joint one.
7. I have heard the learned counsel for the parties. Nobody was named in the F.I.R., that it was an unwitnessed occurrence. There is no eye-witness. Nishan Ali and Akhtar Ali, P.Ws. 5 and 6 are the first cousin of the deceased. They had met the complainant on 8-2-2000 at 8-00 a.m. While the complainant lodged the F.I.R. At 9-00 a.m. On the same day but he did not mention in the F.I.R. That the said Nishan Ali and Akhtar Ali P.W. Had seen the appellant on the night of 7/8-2--2000 when they were watering their fields on 2-30 a.m. So had they met the complainant on 8-2-2000 at 8-00 a.m. The name of the appellants must have been mentioned in the F.I.R. As they are first cousins of the deceased so they had appeared against the appellants. Mst. Raizia who had planned the murder according to the extra-judicial confession, has been acquitted by the learned trial Court.
Bushra Bibi is wife of the deceased who was living separately from the parents and brother of the deceased. The natural conduct of Mst. Bushra is that she should have been present in the house of her husband but she was not there. Even the story of Nishan Ali and Akhtar Ali, P.Ws. That they were watering their fields in the month of February, 2000 at 2-30 a.m. Seems to be unplausible and unnatural because it was a severely cold winter season having fog also.
8. As far as extra-judicial confession before Muhammad Akbar and Muhammad Saleem P.Ws. Is concerned that is joint one and is not admissible in the evidence, even the learned State counsel has not supported this aspect of the prosecution case. In the extra-judicial confession it was mentioned that some drugs in the shape of medicines were given to the deceased while serving tea but according to the report of the Chemical Examiner no poison was detected. As far as recovery from Abdul Rasheed appellant is concerned, no person from the locality has been cited or produced as recovery witness which is clear violation of section 103, Cr.P.C. In the peculiar circumstances of the case, there is no direct evidence in the instant case. House of the deceased was situated in the thickly populated area and adjacent to his house there was house of his brother. Had there been breaking of the wall of the said house where the occurrence had taken place at least somebody must have heard the voice of breaking of the said wall of the deceased. It was not the story of prosecution in the F.I.R. That household articles were looted and the wall of the house was also broken. The story of the F.I.R. Was that the wall of the house was broken and household articles were scattered in the house. It is a case of circumstantial evidence. All the chains in such-like cases should be inter-connected. The evidence produced by the prosecution is not of such a type whereby the conviction and sentence awarded to the appellants by the learned trial Court can be maintained. In this view of the matter, while granting benefit of doubt I accept this appeal and set aside the conviction and sentence awarded to the appellants by the learned trial Court. They are behind the bars. They are ordered to be released from the Jail, if they are not required in any other case.