1. Appellants Muhammad Javed Iqbal, Muhammad Riaz and Abdul Khaliq alias Khalid alongwith Mst.
2. Anaran Bibi were tried by Additional Sessions Judge, Arifwala District Pakpattan Sharif for the murder of Atta Muhammad, in case FIR No, 167/2002 dated 19.07.2002 under Sections 302/364/34 PPC registered at Police Station Qabula, who vide Judgment dated 24.04.2002 while acquitting Mst, Anaran Bibi from all the charges and appellants from the charge under Section 364 PPC convicted appellants under Section 302(b)/34 PPC and sentenced each of them to imprisonment for life.
3. Appellants were also directed to pay Rs, 50,000/- each as compensation to the legal heirs of the deceased Atta Muhammad as required under Section 544-A Cr.P.C. or in default whereof to further undergo six months SI each. Appellants were also given the benefit of Section 382-B Cr.P.C.
4. Feeling aggrieved by the impugned judgment, appellants have filed the instant appeal.
2. Facts of the prosecution case an narrated in the FIR lodged upon the statement of Ali Sher (PW.
5. 2) are that on 19.05.2002 at 6 p.m., when Ali Sher (complainant) alongwith his brother Atta Muhammad, Bagh Ali son of Nizam and Ali Sher son of Muhammad Yar was present in his house, Muhammad Khalid; Muhammad Javed and Riaz came there in order to take Atta Muhammad alongwith them on the pretext of having important talk. Complainant forbade Atta Muhammad but Mst. Anaran wife of Atta. Muhammad asked that Atta Muhammad be allowed to accompany the above said persons and within the view of the witnesses Atta Muhammad left the home. Statedly Atta Muhammad did not return home and on the next day complainant asked Khalid and Riaz about him who replied that Atta Muhammad had gone somewhere with Javed. After about five days complainant contacted Javed and inquired from him about Atta Muhammad who told him not to worry as Atta Muhammad would return after few days but he did not return. Allegedly Khalid, Javed and Riaz with the connivance of Mst. Andran Bibi had abducted Atta Muhammad with the intention to commit his murder.
6. Motive for this occurrence as narrated in the FIR was that Khalid's brother Khadim Hussain had abducted complainant's sister Mst. Sardaran Bibi about four years ago and case was registered but subsequently with the intervention of the punchyat Mst. Anaran Bibi (sister of Khalid accused) was given into the Nikah of Atta Muhammad (deceased). Statedly Khalid accused had grudge against Atta Muhammad in this regard and with the help of his co-accused he had abducted Atta Muhammad in order to commit his murder.
7. File of this case reveals that on 23.05.2002 an unknown dead body was found lying in the bank of Canal within the jurisdiction of Police Station Luddan District Vehari. The dead body was taken into custody and after complying with legal formalities the local police got conducted the postmortem examination of the dead body through Dr. Amjad Abid PW.
7. The Police Officer also took photo graphs of the dead body as well as took into custody the last worn cloths of the deceased. These articles later on 'were handed over to the Investigating Officer of this case.
3. After formal investigation by Jurat Mand SI. PW. 4 and Talib Hussain SI P.W. 9, challan was submitted before the trial Court. Where prosecution produced nine witnesses to prove the charge against the appellants and their co-accused.
8. Mehbood Ali Shaukat Patwari PW. 1 prepared the scaled .site-plan Ex.PA/1 and Ex.PA/2. Ali Sher son of Muhammad Bukhsh PW. 2 (complainant) and Ali Sher son of Muhammad Yar PW. 3 deposed that in their presence deceased left the home in the company of the appellants. Both of them had also identified the last worn clothes of the deceased as well as his photographs prepared by the police during the investigation. Jurat mand SI PW. 4 and Talib Hussain SI PW. 9 conducted the formal investigation of this case. Muhammad Aslam HC PW.5 was posted as Moharrar at Police Station, .Luddan (District Vehari). During investigation he produced two photographs and last worn cloths of the deceased i,e, Shalwar P.I (in torn position), Shirt P.2 to the Investigating Officer of this case which were taken into possession vide recovery memo Ex.PF. Muhammad Ramzan PW. 6 deposed about the extra judicial confession of the appellants. Dr. Muhammad Amiad Abid PW. 7 conducted the postmortem examination on the unidentified dead body. The opinion of the doctor about the dead body reads as follows:-- "From the external and the internal postmortem examination, no definite cause of death could be given at that stage due to advance putrefaction and decomposition. No injury was visible on the decomposed body. However, visceral liquified material had been sent to Chemical Examiner, Punjab, Lahore for detection of any poisoning. Vide Chemical Examiner Report No, 87-4/P.V dated 11.07.2002 Chemical Examiner; Punjab, Lahore, poison was not detected in the above viceras".
9. Muhammad Jamil SI PW. 8 on the information recovered dead body of an unknown person from the Bank of Canal, prepared injury statement Ex.PI, Inquest report Ex.PH and sent the dead body to the mortuary for postmortem examination. He also got prepared photographs of the dead body P.3/1-2 and after postmortem examination took into possession last worn clothes of the deceased Shalwar P.1 and Shirt P.2.
10. Learned APP tendered in evidence report of Chemical Examiner Ex.PK and closed the case for the prosecution.
11. Learned trial Court also examined appellants and their co-accused under Section 342 Cr.P.C. All the appellants while denying the charges pleaded innocence. None of the appellants made statement under Section 340(2) Cr.P.C. nor produced any evidence in their defence. However, they produced certain copies of FIRs registered against the deceased.
12. Learned trial Court after appraisal of evidence vide judgment dated 24.04.2002 convicted and sentenced the appellants as narrated earlier.
4. With the able assistance of learned counsel for the parties, I have minutely gone through the record of this case. The entire case of the prosecution is in the form of circumstantial evidence i,e, evidence of last seen, extra judicial confession of the appellants and medico legal reports.
13. According to the statement of Ali Sher son of Muhammad Buksh PW.2 (complainant) and Ali Sher son of Muhammad Yar (PW.3) deceased was seen in the company of the appellant at 6 p.m. on 19.05.2002 but postmortem report and the statement of Dr. Muhammad Amjad Abid (PW.7) show that deceased was done to death many days prior to 19.05.2002. This post-mortem was conducted on 23.9.2002 (i,e, after four days, the deceased was seen in the company of appellants) and the time between death and postmortem as observed by the doctor was between fine to ten days.
14. Admittedly complainant of this case knew that Khalid (appellant) was not happy over the marriage of his sister (Mst. Anaran, co-accused) with the deceased, then whey, he kept mum for almost two months after the disappearance of his brother and never reported the matter either to the police or his co-villagers. The conduct of this witness was very unnatural. Similarly Ali Sher son of Muhammad Yar (PW.3) was not the resident of the area, the statement of this witness is absolutely silent about his visit to the house of complainant. Admittedly he never made statement before the police when this case was registered but statedly his statement under Section 161 Cr.P.C. was recorded by the police after two months of the registration of this case. The unexplained delay in making the statement before police is also sufficient to doubt the credibility of this witness. In the light of the said facts of the cast it is unsafe to rely upon this part (i,e, last seen) of the prosecution case.
15. The evidence of extra judicial confession is normally created during the investigation when there is no direct evidence to connect the accused with the commission of offence. In the present case, statedly appellants had confessed their guilt before Muhammad Ramzan PW.6. Statedly while confessing their guilt appellants described that after manhandling the deceased was thrown into the canal but medico legal report is silent about any injury on the person of the deceased or about the cause of death. While making statement before the police stand of this witness was that all the appellants had confessed their guilt jointly but while deposing before the trial Court the witness made improvement and stated that confession was made by the appellants turn by turn. The conduct of this witness was also very unnatural after hearing the confession of the appellants, he made no attempt to apprehend them for their production before the police. Even otherwise admittedly Muhammad Ramzan PW.6 was not a man in authority to assert upon the complainant party for a compromise with the appellants, confession of their guilt by the appellants before this witness is, repellent to common sense.
16. The conclusion of the above discussion is that the case in hand is nothing but a pack of lies. The prosecution has miserably failed to prove the charge against the appellants. Accordingly this appeal is allowed, conviction and sentence of the appellants is set aside and they stand acquitted from the charge. They shall be released forthwith if not required to be detained in any other case.