' MUHAMMAD FARRUKH MAHMUD, J.---Dilawar Khan son of Elahi Bakhsh and Shah Muhammad son of Atta Muhammad were sent up to face trial in case F.I.R. No,286, registered at Police Station Khairpur Tamewali, on 19-11-1996, for offences under sections 302/364/379/411/34, P.P.C. Vide judgment, dated 8-12-2000 handed down by Mr. Badar-uz- Zaman Chatha Sessions Judge, Bahawalpur, both the accused were convicted and sentenced as follows:--
(i) Under section 302/34, P.P.C.
' Sentenced to death. Compensation of Rs,50,000 each, to be paid to the legal heirs of the deceased, in default of payment thereof each of them to suffer imprisonment (S.-I.) for six months.
(ii) Under section 364/34, P.P.C.
' R.I. For 10 years. Fine of Rs,10,000 each, in default of payment thereof each of them to suffer further imprisonment (S.-I.) for 3 months.
(iii) Under section 201/34, P.P.C.
' R.I. For 2 years each. Fine of Rs,5,000 each, in default of payment thereof each of them to suffer further imprisonment (S.I.) for one month.
' All the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was given to the convicts.
2. Feeling aggrieved, Dilawar Khan through Criminal Appeal No, 202 of 2000 and Shah Muhammad through Criminal Appeal No,203 of 2000 have challenged their convictions and sentences. Murder Reference No,8 of 2001 seeking confirmation of death sentence has been placed before us. We propose to decide all these matters by this single judgment.
3. Vide F.I.R. No,286 of 1996, Exh.PE/1 was registered at Police Station Khairpur Tamewali, on 19-11-1996 by Ahmad Khan, S.-I., for offence under section 364, P.P.C. On the written application Exh.PE submitted by Allah Rakha (P.W.7) father of the deceased Muhammad Haji alias Pappi.
4. According to F.I.R., the complainant in Mouza Khanan Arain. His son Muhammad Haji alias Pappi aged about 22/23 years had opened shop in the vicinity and used to sell spray and fertilizer.
Muhammad Haji owned a motorcycle Honda CD-70 registered No,BRE-3946 Model 1993. He enjoyed friendly relations with Dilawar, who used to visit him. Muhammad Haji needed some money so he asked Dilawar to sell his motorcycle. 20 days prior to the registration of case at about noontime Dilawar brought Shah Muhammad as a customer of the motorcycle. Shah Muhammad liked the motorcycle and suggested that the motorcycle should be shown to some mechanic working at Mailsi to determine its price. Within the presence of the complainant, Allah Bakhsh (P.W.8) and Rahim Bakhsh, Dilawar and Shah Muhammad along with Muhammad Haji alias Pappi proceeded on motorcycle at about 5-00 p.m. Towards Mailsi. Muhammad Haji did not return to his house. Thus, the complainant and the P.Ws. Started searching for Muhammad Haji as well as Dilawar and Shah Muhammad, who were also missing from their houses. The relatives of the Dilawar and Shah Muhammad suggested that three friends might have gone to Murree or some other place and that the complainant should not be worried, they would return in due course of time. On 19-11-1996, when the complainant lodged F.I.R., he came to know that Dilawar and Shah Muhammad had returned to their houses. As his son had not returned he suspected that his son was abducted by the two to steal his motorcycle. Suspicion was also shown. To the effect that the accused might have murdered the son of the complainant.
5. Meanwhile, on 7-11-1996 a dead-body, which had stuck with the bank of Canal/Rajbaha Hafiz Wah Minor, was discovered by Gul Muhammad, Lumberdar, within the vicinity of Police Station City Jalalpur Pirwala and case F.I.R. No,236 of 1996 was registered on 7-11-1996 at Police Station City Jalapur Pirwala, for offence under section 302, P.P.C. At the instance of Gul Muhammad, Lumberdar.
Abdul Latif, SI, Police Station City Jalapur Pirwala (P.W.13) prepared the inquest report Exh.PN/1 of the recovered dead-body and sent the dead-body to the Hospital for postmortem. Dr. Irshad Hussain (P.W.12), who was working as Medical Officer at Rural Health Centre, Jalalpur Pirwala, conducted the post-mortem examination of the dead-body on 7-11-1996 at 4-00 p.m. According to his opinion the deceased had lost his life due to drowning. However, his opinion was subject to the report of the Chemical Examiner, as pieces of Lung and Liver were sent to the Chemical Examiner for detection of poison. According to the postmortem report Exh.PN the approximate age of the deceased was 40 years. According to Doctor the probable time that elapsed between injury and death and between death and post-mortem could not be estimated due to semi-decomposition of the dead-body. After post-mortem examination, the doctor handed over one pair of brown shoes, one digital wrist watch of black colour, one trousers and shirt of light blue colour, which were worn by the deceased, to Muhammad Hayat, Constable (P.W.5), who gave the said articles to Abdul Latif, SI (P.W.13), who secured the same vide memo. Exh.PD attested by Muhammad Hayat, Constable and Fayyaz Hussain, Qumi Razakar.
6. On 23-11-1996 Allah Rakha complainant, Allah Bakhsh and Rahim Bakhsh went to the Police Station City Jalalpur Pirwala and as per memo. Exh.PQ they were shown the clothes, shoes and watch worn by the deceased and the photographs. After seeing the above-noted articles, the P.Ws., mentioned above, concluded that the same belonged to Muhammad Haji alias Pappi and further concluded that the dead-body, which was recovered from the Canal was of Muhammad Haji son of the complainant. The above-noted memo. Was prepared by Abdul Latif, SI and was attested by Allah Rakha P.W.7, Allah Bakhsh P.W.8 and Rahim Bakhsh (not produced).
7. On 23-11-1996 Ahmad Khan, S.-I., Police Station Khairpur Tamewali received shoes, watch, trousers and shirt worn by the deceased from Muharrar Malkhana Police Station City Jalalpur Pirwala and secured the same vide memo. Exh.PD/1 attested by Allah Rakha P.W.7 Allah Bakhsh P.W.8 and one Rahim Bakhsh (not produced).
8. On 7-12-1996 Haji Muhammad son of Allah Wasaya P.W.3 produced motorcycle P-4 which was mentioned in the complaint (lodged by the father of the deceased) along with its Registration Book of P-5 before Ahmad Khan, S.-I., Police Station Kahairpur Tamewali. The Registration Book was in the name of one Ghulam Abbas. The above-stated articles were taken into possession by Ahmad Khan, S.-I. Vide memo. Exh.PB attested by Haji Muhammad P.W.3, Allah Bakhsh P.W.8 and Rahim Bakhsh (not produced). Receipt Exh.PA is also available on the record of the case, which was taken into possession vide memo. Exh.P.C. According to this receipt, on 30-10-1986 the above-noted motorcycle was sold for Rs,37,600 to Haji Muhammad son of Allah Wasaya by Dilawar Khan and Shah Muhammad appellants. The receipt contained the thumb-impressions of Dilawar Khan and Shah Muhammad, while Hafiz Haji Muhammad son of Allah Rakha P.W.4 and one Hafiz Abdul Hameed had signed the receipt as witnesses. It also bears the signature of the Haji Muhammad, who had produced it.
9. On 2-12-1996 Allah Bakhsh Lumberdar produced the accused before the Investigating Officer, who arrested them. According to memos. Exh.PF and Exh.PG prepared by Ahmad Khan, S.-I. Dilawar Khan and Shah Muhammad accused while in police custody led the Investigating Officer towards Dhammakki Canal within the area of Mouza Umar Khhechi, Mailsi, and pointed out the place where they had thrown the dead-body. These memos., were attested by Allah Rakha P.W.7, Allah Bakhsh P.W.8 and one Rahim Bakhsh (not produced).
10. Thumb-impressions of the appellants obtained for comparison with the thumb-impressions available on the receipt Exh.PA after obtaining permission through an application Exh.PK. Thumb and finger prints of Dilawar Exh.PL and Shah Muhammad Exh.PM tallied with the thumb-impressions available on the receipt Exh.PA. Report of the Finger Print Expert is available on record as Exh.PT.
11. After completion of investigation, the appellants were sent up to face trial. Charge was framed against them. They denied the charges and claimed to be tried. Thus, the trial commenced.
12. During trial the prosecution produced 13 witnesses to prove its case. Pir Bakhsh P.W.1 and Khadim Hussain P.W.2 stated that they had stopped the dead-body, which was stuck with the Canal Rajbaha Hafiz Wah Minor within the territorial jurisdiction of Police Station City Jalalpur Pirwala. The dead-body was of a male. Its hands and feet had been tied. A cloth was wrapped around its neck.
They futher stated that the deceased was wearing shirt, shalwar and shoes (both the witnesses did not mention the wrist watch). P.W.3 Haji Muhammad son of Allah Wasaya stated that he had purchased the motorcycle from the appellants for consideration of Rs,37,600. He further stated that he had produced the motorcycle Registration Book and receipt Exh.PA before the Investigation Officer. P.W.4 Haji Muhammad son of Allah Rakha stated in line with P.W.3. Muhammad Hayat, Constable P.W.5 stated that after post-mortem examination, the Doctor had handed him over the last-worn clothes of the deceased, a pair of shoes and a wrist watch, which he handed over to the Investigating Officer, Muhammad Akram, Head-Constable P.W.6 stated that on 7-11-1996 he was posted as Moharrar at Police Station City Jalalpur Pirwala and had registered the case at the instance of Gul Muhammad Lumberdar after the recovery of dead-body of an unidentified person.
He further stated that he had handed over the belongings of the deceased to Ahmad Khan, Police Station Khairpur Tamewali. P.W.7 Allah Rakha, father of the deceased, and P.W.8 Allah Bakhsh stated according to the complaint. They also stated about the factum that the appellants had pointed towards the place where they had drowned the deceased in the Canal. They also stated about the identification of the deceased through articles, which were worn by him. P.W.8 further stated that about the production of motorcycle along with receipt and Registration Book by Haji Muhammad P.W.3. Haji Riaz Hussain P.W.9 and Muhammad Anwar P.W.10 stated that both the appellants had confessed before them that they cominitted the murder of Muhammad Haji-deceased in order to take away the motorcycle 22/23 days prior to the confession. They further stated that the accused also confessed that they had sold the motorcycle for Rs,37,500 at Tehsil Kahror Pacca and had thrown the dead-body in Dhammakki Canal. Sh. Abdul Hameed, Inspector, appeared as P.W.11 and stated that on 19-11-1996 he was posted as S.H.O. At Police Station Khairpur Tamewali and that he recognized the handwriting of Ahmad Khan, S.-I., working with him. As Ahmad Khan, S.-I. Had died, he identified the signatures of Ahmad Khan, S.-I., on various documents produced before the learned Trial Court. Abdul Latif, S.-I., appeared as P.W.13 and stated that on 7-11-1996 he was posted as Sub-Inspector at Police Station City Jalalpur Pirwala and that he had recorded the statement of Gul Muhammad Lumberdar, and the same was sent to the Police Station for registration of F.I.R.
Mark-A. He further stated that Muhammad Hayat, Constable, handed over the last-worn articles to him, after post-mortem and the same were taken into possession vide memo. Exh.PD. He also stated that the articles worn by the deceased were shown to his father and other P. Ws who identified the same as belongings of the deceased. Dr. Irshad Hussain appeared as P.W.12 and stated that he had conducted the postmortem examination on the dead-body of an unidentified person, who was aged about 40. Years on 7-11-1996. The dead-body was slightly decomposed.
Maggot and mud were all around the body. The deceased had lost all hair on scalp. Lips and nose were found shrunk and deformed. Eyes were fully closed. Pulp of all the fingers were destroyed and damaged. He also stated that black piece of cloth was wrapped along with neck of the deceased.
The wrist and ankle joints were also tied by the pieces of black cloth. He further stated that the deceased was wearing Shaiwar, Qameez and wrist watch. According to his opinion the cause of death was drowning. He placed on record report of the Chemical Examiner Exh.PO. According to which, the viscera sent to the Chemical Examine did not contain any poison.
13. Statements of the appellants were recorded under section 342, Cr.P.C. Both the appellants pleaded innocence and stated that they have been involved in a false case. Shah Muhammad added that he was involved in this case due to his friendship with Dilawar Khan. Both the appellants neither appeared as witness in their defence nor produced any defence witness before the learned trial Court.
14. The learned counsel for the appellants has argued that the case of the prosecution was replete with doubts; that it was an unwitnessed occurrence; and that the learned Trial Court had recorded the conviction of the appellants merely on wrong presumptions.
15. Conversely, the learned counsel for the complainant has argued that the deceased was last seen in the company of the appellants; that the P.Ws 7 and 8 have clearly stated that the deceased had accompanied the appellant; that both the witnesses were reliable and had no enmity to involve the appellants in a false case; that the motorcycle of the deceased was sold to P.W.3, who has appeared before the Court and his statement is corroborated by P.W.4; that both the appellants had pointed towards the place where they had thrown the dead body in the canal; that the learned trial Court has wrongly disbelieved the confession made by the appellants before P.W.9 and P.W.10; and that sufficient evidence was available against the appellants to warrant conviction.
16. The learned counsel appearing on behalf of the State has adopted the line of arguments of the learned counsel for the complainant.
17. We have heard the learned counsel for the parties at great length and have scanned the entire record of the case minutely. Admittedly it is an unwitnessed crime and the case of the prosecution revolves around the circumstances evidence, starting with the allegation that the deceased had accompanied the appellants on motorcycle and the evidence of deceased having been last seen in the company of the appellants is linked with the ownership and recovery of the motorcycle, therefore, we would like to analyse and appreciate the evidence on these points first.
18. According to Allah Rakha P.W.7, who is father of the deceased, the deceased had accompanied the appellants 21/22 days prior to reporting the matter to the police. He did not report the matter to the police for 20/21 days. There is no plausible explanation for long delay, as in normal circumstances the father whose son was missing would not wait for such a long period. According to Allah Rakha complainant/P.W.7, he along with Allah Bakhsh P.W.8 and Rahim Bakhsh went to the house of Dilawar Khan, who did not disclose the whereabouts of his son, thus, he reported the matter to the police. P.W.8 stated that after about 20/21 days Dilawar and Shah Muhammad appellants met them and stated that after two day Muhammad Haji had gone back . In other words both the witnesses had seen the deceased in the company of the appellants on 29/30-10- 1996, while the dead-body was recovered on 7-11-1996. There is no evidence on record to show that the deceased was seen in the company of the appellants during the period starting from 29/30- 10-1996 to 7-11-1996. Haji Muhammad, to whom the appellants allegedly sold the motorcycle, has not stated that at the time of purchase of Motorcycle Muhammad Haji alias Pappideceased was along with the appellants. As per evidence, Haji Muhammad produced the motorcycle before the Investigating Officer on 7-12-1996 exactly after one month of the recovery of the dead-body and 18 days of the registration of the case. According to his version he had purchased the motorcycle from the appellants for consideration of Rs,37,600 and had obtained a receipt (Exh.PA) bearing his signature and P.W.4 Haji Muhammad son of Allah Rakha. Admittedly, according to the Registration Book the motorcycle belonged to one Ghulam Abbas. He was neither cited as witness nor he was produced before the learned trial Court to show that he had sold the motorcycle to the deceased.
P.W.3 stated that the appellant were in possession of an open transfer letter issued by Ghualm Abbas but the said letter was never produced before the police and ironically it was also not produced during the trial. So it cannot be said that any open letter existed in the field, which was issued by Ghulam Abbas, the real owner of the motorcycle. P.W.3 was unable to state as to whom out of the two accused the motorcycle belonged. He had to confess that he was not in a position to tell who was the actual owner of the motorcycle between both the accused. He also admitted that he did not know the appellant previously. He is agriculturalist by profession and does not deal in sale and purchase of motorcycle or other vehicles. Surprisingly Exh.PA has been executed on a printed form wherein particulars have been filled. When questioned on the point P.W.3 replied that he obtained the form from a shop. He further stated that the receipt was executed in the shop of Haji Muhammad son of Allah Rakha (P.W.4). On the same point P.W.4 had stated that P.W.3 had brought the form (Exh.PA), which was already filled up and he just signed it. P.W.4 deals in sale of spare parts and does not deal in sale and purchase of motorcycles or other vehicles. It is not borne out from the record as to from whom that printed form was obtained by P.W.3. It casts doubt on the genuineness of the receipt Exh.PA and leads to an impression that the same was prepared at the Police Station. Our view is further strengthened by the fact that P.3 admitted that the police had obtained his signature on a blank paper, which was later on converted into Exh.P8 and he did not remember the date when the recovery memos. Exh.PB and Exh.PC were executed.
19. The evidence that the appellants while in custody pointed towards the place where they had thrown the deceased, we are afraid, does not advance the case of the prosecution as the same is inadmissible. According to Article 40 of the Qanun-eShahadat, 1984, the information furnished by the accused while in custody would be admissible and relevant only if it led to the discovery of a fact. This point was discussed by the Full Bench in the case of Sukhan v. The Emperor AIR 1929 Lah.
344 and it was observed as follows:-- "phrase 'fact discovered' used by the legislature refers to a material, and not to a mental fact. The fact discovered may be the stolen property, the instrument of the crime, or corpse of the person murdered or any other material thing; or it may be a material thing in relation to the place or the locality where it is found."
' It was held in the case of Karamat Mandal and another v. King Emperor (AIR 1926 Calcutta 320) that "statements of accused while in custody of the police officer and of his having pointed out the places where he committed the offence, are not admissible as being of an incriminating nature." In this case the accused/appellants merely pointed out the places connected with the commission of offence and there was no recovery. Thus the information/ admission allegedly furnished by the appellants while in police custody is inadmissible and cannot be used by the prosecution.
20. As far as the evidence of extrajudicial confession allegedly made before P.W.9 and P.W.10 is concerned, the learned trial Court has discarded the same for cogent reasons mentioned in para. 11 of the judgment.
21. The learned counsel for the complainant and the learned counsel appearing on behalf of the State remained unable to find any fault in the reasoning advanced by the learned trial Court for rejecting the story of extra-judicial confession.
22, Whether the dead-body recovered on 7-11-1996 was that of Muhammad Haji alias Pappi, has not been conclusively proved by the prosecution for the following reasons:--
(i) that the age of the deceased has been mentioned in the F.I.R. As about 22/23 years while according to Doctor (P.W.12) the age of the deceased, on whose dead-body he conducted post- mortem examination, was about 40 years;
(ii) that Abdul Latif, S.-I. (P.W.13), who prepared the inquest report after recovery of the dead-body, mentioned the age of the deceased about 35/40 years in Column No,5 in the said report;
(iii) that photos mentioned in Exh.PD/1 and Exh.PQ relating to identification of the dead-body were never brought on the record of the case; and
(iv) that according to P.W.7, father of the deceased, he went to Police Station City Jalapur Pirwala for the purpose of identification after four days of receipt of the information relating to the dead- body, while according to P.W.8 the information was received on 21-11-1996 and they went to the police Station on 23-11-1996. Normally a father would rush to the Police Station without any waste of time, if he believed the information. The lack of interest on the part of the P.Ws was perhaps for the reason that they were also informed that the dead-body was a person of aged between 35/40 years.
23. For the above-noted reasons we are of the opinion that the prosecution has failed to prove its case against the appellants beyond doubt. Thus, extending the benefit of doubt to the appellants we allow both the appeals, set aside the impugned judgment, dated 8-12-2000 passed by the learned trial Court and acquit the appellants of all the charges. They would be released from Jail forthwith, if not required in any other case.
24. For the same reasons, the Murder Reference is answered in the Negative Death sentence is not confirmed.