This judgment will dispose of Criminal Appeal No, 144 of 2003 filed by Maqsood Ahmad and Muhammad Jamil appellants, Crl. Appeal No, 724/2003 filed by Usman appellant and a CaRevision No, 348 of 2003 filed by the complainant directed against he judgment dated 31.1.2003 passed by the learned Addl; Sessions Judge, Sialkot whereby he convicted Maqsood Ahmad and Muhammad Jamil appellant u/S. 302(b) PPC and sentenced them to undergo life imprisonment with further direction to pay Rs, 1,00,000/- (one lac) each as compensation required u/S. 544-A Cr.P.C. He also convicted Muhammad Usman appellant u/S. 302(c) PPC and sentenced him to undergo 10 years R.I with further. direction to pay Rs, 50,000/- as compensation as required u/S. 544-A Cr.P.C.
2. Brief facts in brief as narrated in the FIR by the complainant are that on the night between 12/13.5.2002 in the area of Nangian Tehsil Pasrur District Sialkot, Rashid deceased brother of the complainant was called by Maqsood Ahmad appellant at about 9-15 p.m. and took him towards the haveli of Mushtaq Ahmad situated in the village. After some while the mother of the complainant Mst. Kaneez Bibi became- worried and she alongwith Muhammad Asif the complainant, Abdul Rehman son of Muhammad Din and Iftikhar Ahmad son of Muhammad Irshad went to the haveli of Mushtaq Ahmad whereupon Maqsood, Mushtaq and Usman alongwith 2/3 unknown persons were present. Mst. Kaneez Bibi asked Rashid to go alongwith her house but he replied that after taking a bath he would return but he did not return. On 13.5.2002 at about 7-30 a.m in the northern fields of the village many ladies and gents were gathered and the complainant alongwith Abdul Rehman also reached in the same fields and saw Muhammad Rashad lying dead there with sharp edged weapons and many injuries were on his body. The movie behind the present occurrence was a quarrel which had taken place between Rashad and Usman 3/4 days prior to the present occurrence.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Muhammad Afzal S.I took the investigation in his hands and alongwith his subordinates proceeded to the spot. He prepared injury statement Ex,P.H, inquest report Ex.PK.
He secured the blood stained earth vide memo Ex.P.A. Last worn clothes of the deceased were also received by him vide memo Ex.P.B. He arrested Jamil, Maqsood, Usman and Mushtaq on 27.5.2002.
On 1.6.2002 Jamil appellant got recovered hatchet vide memo Ex,P.F, On the same day a hatchet P, 4 vide memo Ex.P.E. was also got recovered by the Maqsood appellant. Ultimately after thorough investigation all the above said four accused were challaned.
4. The prosecution in order to prove its case has produced as many as 13 witnesses including Doctor, I.0, eye-witnesses and other formal witnesses. After tendering in evidence report of Chemical Examiner Ex.P.N, that of Serologist Ex.P.O, report of Chemical Examiner regarding hatchet Ex:P.P and that of Serologist Ex.P.R. and report of chemical examiner regarding hatchet Ex.P.S and that of serologist Ex.P.T. learned SPP closed the prosecution evidence. Thereafter statements of the appellants/accused were recorded u/s 342 Cr.P.C, in which they pleaded their innocence. Learned trial Court after taking into consideration. the every aspect of the case and hearing arguments advanced by both the parties convicted and sentenced the above mentioned appellants and acquitted Mushtaq co-accused. Hence these appeals.
5. Learned counsel for Maqsood and Jamil appellants submits that so motive is attributed to them, that it was a night occurrence and there is no direct or indirect evidence whatsoever available on the record against the appellants, that all the PWs produced by the prosecution are related inter- se and also with the complainant.
6. As far as recovery of weapons from Maqsood and Jamil is concerned, it is not believable because those weapons were recovered from a deserted well the assessable place for every body and this does not appeal to mind that said weapons remained blood stained after a long time.
7. As far as extra judicial confession of appellants is concerned, 'it has got no value as the same was made before Qaisar Mahmood who is brother in law {{URDU TEXT}} of the deceased and their statements were recorded on 18.7.2002.
8. Learned counsel for Usman appellant submits that it was an unseen occurrence and nothing was recovered from him. Even he was found innocent by the police and was not named in the FIR by the complainant.
9. Learned counsel for the complainant on the other hand who has also filed a revision petition submits that although there is no direct evidence but circumstantial evidence including the recovery of blood stained weapon of offence from both the appellants is there and there is also last seen evidence of Daryafat Ali PW. 9 and the extra judicial confession made before Qaisar Mahmood PW.
12. He submits that these circumstances are sufficient to connect the appellants with the commission of murder of the deceased, that this evidence can be interpreted in favour of the guilt of accused, that mere relationship of the PWs with the deceased is no criteria to discard their evidence because they had got no enmity whatsoever with the appellants. He supports the j udgment of the learned trial Court.
10.Learned state counsel on the other hand submits that though, it is a case of circumstantial evidence but the chains of evidence are not connected with each other in order to bring home the guilt of the appellant. She submits that Iftikhar PW was not inmate of the house of the deceased.
The said PW has not submitted any reason before the learned trial Court about his presence in the house of the deceased. As far as recovery is concerned, that took place from a deserted well which was assessable for every person. She does not support the prosecution case.
11.I have heard the learned counsel for the parties and also have 'gone through the evidence recorded by the learned trial Court with the assistance of both the learned counsel for the parties.
In the instant case evidence of last seen was that on the night of 12.5.2002 Rashad deceased was taken by Maqsood Ahmad appellant towards the Haveli of Mushtaq Ahmad and after some time Mst. Kaneez Bibi (not produced) became worried and went to the Haveli of Mushtaq Ahmad in order to take him back to her house. She was also accompanied by Iftikhar Ahmad PW. 4, Abdul Rehman (not produced) and the complainant Muhammad Asif and when they reached in the Haveli of Mushtaq Ahmad they saw Maqsood Ahmad, Mushtaq and Usman there alongwith 2/3 unknown persons. Till today police did not get the clue of those unknown persons nor their descriptions were given in the FIR. Rashad deceased was asked by her mother to accompany her but he refused to go with her do the pretext that he will come after taking bath on which Mst.
Kaneez Bibi alongwith Iftikhar, Abdul Rehman and the complainant came back to their house. On the next day the dead body of the deceased was found in a field at 7:30 a.m and they were informed at their house. The motive given in the FIR was that 3/4 days prior to the occurrence Rashad deceased had a quarrel with Usman appellant which was patched up by the respectable of the area and Usman had threatened Rashad deceased with dire consequences so this murder took place.
12.In spite of fact that Usman was present according to the prosecution case in the Haveli of Mushtaq and the mother of deceased Rashad insisted him to accompany her but he refused. It seems to be an improbable story. Had there been a quarrel 3/4 days prior to the occurrence between Rashid and Usman Mst. Kaneez Bibi must have taken her son Rashid deceased with her because according to the FIR Usman had threatened Rashid deceased with dire consequences Before the learned trial Court the complainant Muhammad Asif has improved his statement in a dishonest manner by introducing a new motive in order to strengthen the prosecution case which is reproduced below: 3/4 days prior to this occurrence there took place a scuffle between all the four accused present in the Court and my brother Rashid deceased. My brother Rashad deceased paid advance amount to Maqsood and 'Jamil for stitching the foot ball amount worth Rs, 7.000/ & 8,000/- but they did not, preform their agreement. My brother demanded back the said amount from the accused but they did not pay. Mushtaq and Usman were supported of Maqsood and Jamil. (at this stage learned counsel for the complainant asked from the PW that in whose presence the incident of scuffle was taken place, then he deposed the names of himself Iftikhar, Abdul Rehman and his mother Mst.
Kaneez Bibi). After this 4 accused extended the threats to evenge for their insult. In the premises of Hospital Maqsood accused was arrested by the police on our pointation. When we received the dead body of Ra8had and proceeded to our village riding on a trolly Jamil accuse d happened to see us there we required from him about the occurrence, he said that we, four accused had committed the murder of Rashid deceased. You should do whatever you want."
13.The above said improve rent would show that the same is made in order to implicate all the appellants. In these circumstances I do not believe the motive part of the occurrence, then there is statement of Iftikhar Ahmad PW.
4. He is also witness of last seen. His brother is married to the sister of the deceased. He is resident of a place 42 k.m. away from the place of occurrence. He did not tell before the learned trial Court or before the police that in what connection he was pr esent in the house of the deceased.
14.Then there is statement of PW. 9 Daryafat Ali, according to him on 12.5.2002, he alongwith ones Muhammad Razzaq reached Pasrur at 12 midnight at a deserted place and they saw Maq sood armed with hatchet, Jamil also armed with hatched and Usman empty handed coming out from bushes when they were asked what they were doing there the accused told them that they were taking water melon. This witness is married to the sister of the deceased and his village Havibpur which is at a distance of 17/28 k.m. from the village Nanglian where the occurrence had taken place.
The distance between his village and the village of Razzaq is 50/60 K.M. He also stated that he did not record his statement before the police. He even did not state that the hatchets were blood stained. He had not stated that there was any electric bulb or any other source of light under which he had seen the three accused persons because it was 12-15 (mid night).
15.Then there is evidence of Qaisar Mahmood who is cousin of the deceased and is witness of extra judicial confession. According to him both the appellants Maqsood and Jamil one by one in presence of Arshad (given up PW) made an extra judicial confession about the murder of the deceased. In spite of being close relative he did not apprehend both of them although they were not armed and Muhammad Arshad (given up PW) was an Ex-army personnel. His statement was never recorded by the police. When the case was sent for inspection to the legal branch an objection was raised and thereafter he tendered his affidavit on 18.7.2002 i,e, two months after the occurrence. How such a belated statement can be relied upon by this Court.
16.Now I come to the recovery of hatchets on the pointation of Maqsood and Jamil. According to the prosecution those were recovered from a deserted well which was assessable for every body and hastchets were lying in an open place. The said land was owned by Sh. Abdul Karim. He was never cited or produced by the prosecution as a PW, even otherwise after so many days blood cannot .remained on the said hatchets. Name of Jamil appellant was also not mentioned in the FIR.
According to the prosecution case it was Jamil who 'had told that he had committed the number of the deceased alongwith others but he did not tell the name of any body. All the eye-witnesses are closely related to the deceased as submitted by the learned counsel for the complainant that they were not inimical towards the appellants but the Court has to see the quality of evidence and not the quantity of evidence. Moreover, it is the prosecution which has to prove its case against the accused persons beyond any shadow of doubt. It is a case of circumstantial evidence. There is no direct evidence against the present appellant and there is no eye-witness in this case.
Occurrence had taken place in the dark hours of night. Postmortem examination on the dead body was conducted on 13.5.2002 at 2-45 p.m. by Doctor Syed Rashid Sherazi PW.
5. He has given the duration between death and postmortem examination as 12 to 24 hours so the same could have occurred before 12 of the midnight of 12/13.5.2002 so time of occurrence also does not fit in with the prosecution version. Even the learned state counsel has not supported the prosecution case and she has done rightly so by stating that it is a case of circumstantial evidence but chairs are not connected with each other in order to prove the guilt of the appellants.
17. As far as Usman appellant is concerned, nothing incriminating was recovered from him and he was also found innocent by the police. There is no extra judicial confession on his behalf. In this view of the matter, while granting, benefit of doubt, I accept both these appeals and set aside the conviction and sentence awarded to the appellants by the learned trial Court.
Usman appellant is on bail, he shall be discharged from his bail bonds. Maqsood and Jamil appellants are behind the bars, they shall be released forthwith if they are not required in any other case.