JUDMGENT This judgment will dispose of Criminal Appeal No. 349/J of 2002 filed by Muhammad Nazir, Criminal Appeal No. 366/J of 2002 filed by Muhammad Amir, Nasir Hussain and Muhammad Mohsin, Criminal Appeal No. 131 of 2002 filed by Muhammad Mohsin and Criminal Appeal No. 1532 of 2002 also filed by Nasar Hussain, appellants. Nasar Hussain is also appellant in Criminal Appeal No. 366/J of 2002 filed through jail. All the four accused were convicted and sentenced by the learned Additional Sessions Judge Bhalwal vide judgment dated 23.7.2002 as under:-- Imprisonment for life and to pay compensation of Rs. 50,000/- each, in default six months SI u/S. 302(b) read with Section 34 PPC and Ten years RI and to pay a fine of Rs. 20,000/- each, in defualt three months SI u/S. 392 PPC.
Both the sentences were ordered to run Concurrently with the benefit of Section 382-B, Cr.P.C.
2. Briefly stated the facts of the case are that Nazar Muhammad (deceased) used to graze goats.
On 23.12.1999, as usual, he went to graze goats but did not return back. The complainant alongwith others searched for Nazar Muhammad and it was on 25.12.1999 when they reached near the sugarcane crop of one Mumtaz, they found the dead body of Nazar Muhammad deceased having a cloth wrapped around his throat.
3. The incident was reported to the Police and formal FIR Ex. PD was recorded by SI Dost Muhammad. He, after that visited the spot, prepared injury statement Ex. PJ, inquest report Ex. PK, site-plan Ex. PL and arrested Muhammad Amir, Muhammad Nazir, Muhammad Mohsin and Nasar on 23.1.2000. Six goats, two sheep from Muhammad Amir, six sheep and two goats from Nazir, one sheep and six goats from Nasar, two sheep, one he goat and four from Muhammad Mohsin were taken into possession by the Investigating Officer through different memos. After completion of the investigation, all the four accused were challenged to face the trial.
4. At the trial, prosecution in order to prove its case, produced 9 witnesses in all. Statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded innocence. However, after conclusion of the trial, all the four accused were convicted and sentenced as stated above.
5. Learned counsel for Muhammad Mohsin, appellant submits that nobody was named in the FIR, it was in fact an un-witnessed occurrence, the alleged extra judicial confession being joint one is not admissible in evidence, the PWs before whom the alleged extra judicial confession was made were not the persons in authority and had no relation whatsoever with the complainant party to influence them; though the accused remained with the PWs of extra judicial confession for 2 or 2- 1/2 hours and were empty handed, but the PWs neither informed the Police nor the complainant and that there are material contradictions in the statements of witnesses of extra judicial confession. Further submits that merely on the basis of recovery, conviction cannot be maintained.
As to Mohsin appellant, learned counsel submits that goats were not recovered from his haveli/house but from the haveli 'house of Nasar, co-accused.
Learned counsel argues that there is no last seen evidence in this case to show that the deceased was last seen in the company of the appellants. Further argues that in order to go to Sargodha, there are two pucca roads and more over Saleem Gondal, who was given up by the prosecution is a rich man, having motor cars, so there was no fun for Muhammad Akram PW.6 and Saleem Gondal to go to Sargodha through a katcha path and that too on a motor cycle in the month of December when the winter season was on peek. According to learned counsel, this all was done to show presence of the accused with the sheep belonging to the deceased. Lastly submits that Dost Muhammad SI (PW.9) who investigated the case admitted in cross-examination that ASP Bhalwal had written a letter to SHO directing to arrest the accused after tracing them out through investigation. If this was the position, then how Muhammad Akram PW.6 could have stated that he had seen the accused with flock belonging to the deceased on 23.12.1999 when till 30.12.1999, the accused were untraced. Adds that case diaries were recorded on blank papers so no credibility can be attached thereto.
Learned counsel for Nazir appellant submits that bare perusal of the recovery memo shows that the same goats/sheep were planted on the accused persons with little changes.
Learned counsel-representing Amir appellant submits that recovery having been not affected from the dera of the appellant, cannot be used against him.
Malik Muhammad Qasim Joya, Advocate for Nasar Hussain appellant submits that there are material contradictions in the statements of PWs. 6 and 8.
6. Learned counsel for the State supports the judgment of the trial Court by stating that there was no enmity between the parties so there was no question of false implication and that the appellant did not produce any defence to prove their innocence. Further submits that sheep/goats belonging to the deceased were recovered from the possession of the appellants.
7. I have heard learned counsel for the parties and have gone through the record. In the instant case, the deceased left the house on 23.12.1999. The matter was reported to the Police on 25.12.1999 after recovery of the dead body. Even the dead body was not recovered on the pointation of the appellants. Nobody was named in the FIR. There is no eyewitness in this case. There is also no witness having seen the deceased last in the company of the appellants. It is a case of circumstantial evidence.
There are two types of evidence in this case. First is extra judicial confession. To prove this piece of evidence, the prosecution produced Muhammad Yousaf, PW.5 and Muhammad Nazir PW.8. There are material contradictions in the statements of both these PWs. Muhammad Yousaf PW.5 has stated in his examination in chief that on 30.12.1999 he. was present in his house alongwith Muhammad Nazir son of Khan Muhammad when Nazir accused came to him and told that he (Nazir) alongwith Amir, Nasar and Mohsin had murdered Nazar Muhammad while Muhammad Nazir PW.8 stated that on 30.12.1999 at 8 a.m. when he was present in his baithak alongwith Muhammad Akram, Muhammad Amir told him that the accused alongwith Muhammad Mohsin, Muhammad Nazir and Nagar Hussain have committed the murder of Nazar Muhammad by strangulation. This witness PW.8 did not take the name of Muhammad Yousaf PW.5. Moreover, PW.5 stated that he was present alongwith Muhammad Nazir in his own house, that's house of Muhammad Yousaf while Muhammad Nazir PW.8 stated that he alongwith Muhammad Akram was present in his, baithak, that's baithak of Muhammad Nazir. It is clearly established that both these PWs did not speak the truth either before the Investigating Officer or before the trial Court.
Both these witnesses of extra judicial confession neither informed the Police nor the complainant on the said day though the accused remained with them for 2 or 21/2 hours and were empty handed but informed the Police and the complainant 7/8 days after making confession by the accused before them. No reliance can be placed on the testimony of such witnesses. In these circumstances, the evidence of extra judicial confession is ruled out of consideration.
Next is the evidence of having seen the goats/sheep of the deceased in the possession of the appellants. In this regard, prosecution produced Muhammad Akram PW.6 who stated that on 23.12.1999 at 4.30 p.m. when he alongwith Muhammad Saleem, given up, was going towards Sargodha on a motor cycle, he saw that Muhammad Nazir, Muhammad Amir, Muhammad Mohsin and Nasar accused. It has come on record that Muhammad Saleem, given up, is a rich man having 2/3 motor cars. It has also come on record that there are two pucca roads for going to Sargodha from Bhalwal. It does not appeal to reason that a man having two motor cars would opt to cover a distance of 40 kilometers on a motor cycle by adopting the katcha road and that too in. the month of December when the winter season is on 'peek.
There is another aspect of the case and that's statement of the Investigating Officer, PW.9 who during the cross-examination had stated that on 30.12.1999 he received a letter from ASP Bhalwal directing to arrest the unknown persons/accused of the instant case. If this was the position, then how Muhammad Akram; PW.6 came to know on 23.12.1999 about the names of the accused, that's Muhammad Nazir, Muhammad Amir Muhammad. Mohsin and Nasar. The letter issued by the ASP, Bhalwal shows that the prosecution was not aware of the accused till 30.12.1999.
In all, eight sheep/goats each were recovered from the possession of Muhammad Amir, Muhammad Nazir, Nasar while Muhammad Mohsin got recovered seven sheep/goats. Even recoveries were not affected from the house/haveli of some of the accused but from the house/haveli of other co-accused. Three witnesses signed the recoveries but only one was produced before the trial Court. The colour, age and sex of the sheep/goats shown in the memos being almost similar also casts doubt about the recoveries.
The contention of learned counsel for the State that the appellants did not produce any defence to prove their innocence is without force for the reason that it is settled law that the prosecution has to prove its own 'case beyond any shadow of doubt and not to take benefit of seakness of the defence.
In the case of Munawar Shah versus Liaquat Hussain (2002 SCM R 713), their lordships of the Hon'ble Supreme Court ruled that in a case where there is no ocular evidence connecting the accused with the commission of offence alleged against him, it would not be safe to record conviction of the accused particularly when any link in the chain in the circumstantial evidence is missing. The case in hand is a case where all links in the chain are missing.
After having taken into consideration the entire prosecution evidence and the law settled by the Hon'ble apex Court in a case of circumstantial evidence, I am of the considered opinion that the prosecution has miserably failed to prove its case against the appellants rather there are doubts and doubts in the story of the prosecution. While extending the benefit of doubt, I accept all the four appeals filed by the convict appellants, set aside the conviction and sentence recorded against them by the trial Court and acquit them of the charge. All the four appellants are in jail.
They shall be released forthwith, if not required to be detained in any other case.