Appellants Muhammad Zaman @ Manna, Abdul Qayyum and Khushi Muhammad were tried by the learned Additional Sessions Judge, Gujranwala (in the case registered vide FIR No. 595 dated 3.12.1999 under Sections 302/34/364 PPC, Police Station Peoples Colony, Gujranwala) for the murder of Zafar Abbas son of Nasrullah, who, vide judgment dated 5.4.2002 convicted and sentenced the appellants as under:--
(i) Under Section 302(b) PPC: Imprisonment for life and rupees one lac each as compensation to be paid to the legal heirs of the deceased in default whereof appellants were directed to undergo further SI for six months.
(ii) Under Section 364 PPC:-- Imprisonment for life with a fine of Rs. 50,000/- each in default whereof to suffer further one year SI each.
(iii)The sentences were directed to run concurrently and benefit of Section 382-B Cr.P.C. was extended to the appellants.
Through this appeal, appellants have assailed the impugned judgment of conviction seeking their acquittal.
2. The prosecution story, as given in the FIR (Exh. PA) recorded 'on the statement of complainant (PW3) briefly stated is that his son Zafar Abbas used to do the labour in a factory based in Chandni Chowk; that the complainant had the family disputes with certain persons, namely, Abdul Qayyum alias Labha son of Allah Rakha, Muhammad Zaman alias Manna son of Muhammad Din and Khushi Muhammad alias Khushu son of Fazal Hussain, Residents of Korekey who had abducted his son Zafar Abbas in the presence of factory owner, carried him to an' unknown place with the intention to kill him; that Zafar Abbas was under medical treatment in General Hospital Lahore who could not make conversation; that all the three above said accused brought Zafar Abbas in a Rickshaw and left him at the house of the complainant at about 10.00 in the night and the complainant could sufficiently identity the accused persons. Subsequently, the said injured died in the hospital. The motive alleged in the FIR is that there was a dispute between the complainant and accused persons about the theft of domestic articles of the value of rupees two lac of the younger sister of deceased Zafar Abbas. The said deceased used to make demand from the accused persons for the return of stolen property of his sister.
3. The first investigation of the case was carried out by Muhammad Yaqoob SI (PW9) who proceeded to the Lahore General Hospital, where the injured succumbed to the injuries. He brought the dead body and got conducted the postmortem examination. He completed the other formalities. Then the investigation was taken over by Javaid Iqbal Inspector/SHO (PW10). He arrested all the accused persons on 26.12.1999. Accused Khushi Muhammad led to the recovery of Chapti (P3) which was taken into possession vide memo Exh. PE. On the same day remaining co- accused Zaman and Abdul Qayyum led to the recoveries of dandas (P4 & P5) respectively which were taken into possession vide memo Exh. PF. Having completed the investigation accused were found guilty and were challaned to face trial in the Court of competent jurisdiction.
4. The prosecution to prove its case examined thirteen witnesses including the doctor and the Investigating Officers.
5. Accused in their statements recorded. under Section 342 Cr.P.C. denied the prosecution story and attributed false implication.
6. Learned counsel for the appellants, in support of this appeal, submitted that the FIR in this case was recorded with an unexplained and inordinate delay of eleven days and that neither any witness was cited in the FIR no any place of occurrence has been mentioned in it. According to the learned counsel, time of leaving the injured son of the complainant at his house is mentioned at 10 p.m. but no date has been mentioned. Learned counsel further submits that both the alleged eye- witnesses, namely, PW1 Abid Hussain and PW2 Muhammad Rafique mentioned date of occurrence as 22.11.1999 at about 7 p.m. while Dr. Zahid (PW6) had medically examined the injured on 22.11.1999 at 12.15 p.m. and he was brought by Munir ASI to the hospital i.e. neither by the father nor any other relative of the injured. Adds that the duration of injuries is 12 to 24 hours which contradicts the time given by PW1 and PW2; that the alleged Extra Judicial Confession is joint one made before Allah Ditta and Sultan Mehmood which is not admissible; that the weapons of offence were not blood- stained; that no blood-stained earth from the house of. Khushi Muhammad was secured. Further adds 'that both the eye-witnesses stated that they did not appear before the police during investigation to get their statements recorded; that the prosecution failed to prove its case against the appellants beyond a shadow doubt and they are entitled to acquittal.
7. Learned counsel for the State, in support of the impugned judgment, submits that the appellants are specifically named in the FIR; that a specific role has been assigned' to them; that eye- witnesses also supported the prosecution case; that the crime weapon were also recovered which is corroborated by the evidence and that the motive has been proved.
8. I have heard learned counsel for the appellants, for the State and have also gone through the evidence with their assistance.
9. I this case, there are two eye-witnesses, namely, PW1 Abid 'Hussain and PW2 Muhammad Rafique. According to them, the occurrence took place on 22.11.1999 at 7 p.m. in the house of Khushi Muhammad where all the three appellants were beating the deceased with Sota and Chapti.
Moreover, according to the complainant, the appellants threw his son Zafar thrbugh the Rickshaw in the same evening outside his house and he brought the injured to the hospital. Thus two very important facts given by the prosecution are contracted by the Medical Examination (Exh. PC) of the injured Zafar who was brought to the hospital by Munir ASI on 22.11.1999 at 12.15 p.m. If the occurrence had taken place on 22.11.1999 at 7 p.m. how the injured could have been examined seven hours before that Dr. Zahid has given duration of injuries between 12 to 24 hours which also contradicts the prosecution time of occurrence. One of the eye-witnesses, namely, Muhammad Rafique (PW2) is the first cousin of the complainant. He also admits in cross-examination that he had not seen the appellants while causing injuries to the deceased. He stated that his statement was recorded 11/12 days after the occurrence. He had not told the complainant about the occurrence on the same day. Names of both the eye-witnesses are not mentioned in the FIR. In my opinion, they are not reliable witnesses. The two eye-witnesses of the Extra Judicial Confession are Allah Ditta and Sultan. The Extra Judicial Confession is joint one which is inadmissible. In evidence.
As far as recoveries are concerned, that is of no use as the same were not blood-stained, got recovered from the bank of the canal lying behind the bushes. Though those articles, which are less expensive, should have been thrown in the canal easily why they were concealed behind the bushes. There is no eye-witness 'of kidnapping or abduction of the deceased. According to the complainant, deceased was accompanied by his master. Neither name of the master nor the said was produced by the prosecution. The number of the Rickshaw in which the deceased was brought by the appellants to the house of the complainant is not mentioned. Neither the Rickshawala was interrogated nor he joined the investigation. Name of none of the eye-witnesses of the Extra Judicial Confession was mentioned in the FIR. The occurrence took place on 22.11.1999, the application for registration of FIR is dated 29.11.1999 while the FIR was recorded on 3.12:1999. It also proved that in fact FIR was recovered on 3.12.1999 and date of 29.11.1999 is fictitious. Even the complainant has made dishonest improvements before the learned trial Court regarding motive given in the FIR to implicate the appellants which is reproduced below:-- "Motive behind the occurrence is that Zaman alias Manna accused committed theft in the house of my daughter, namely, Abida of worth Rs. three lac. My son Zafar used to ask Zaman accused for return of theft articles i.e. jewellery, Riyals and Rs. 1,50,000/- so accused injured Zafar in furtherance of common intention in brutal manner and later on he sccumbed to his injuries".
10. Having heard learned counsel for the parties and having gone through the evidence on record, I have come to the conclusion that the .case against the appellants seems to be doubtful. The prosecution has failed to prove its case beyond a shadow of doubt. Resultantly, this appeal is allowed, the convictions and sentences awarded to the appellants are-set-aside and they are acquitted of the charges leveled against them. They are behind the bar and shall be released forthwith if not required in any other case.