' IJAZ AHMAD CHAUDHRY, J.---The appellant has been convicted:-
(i) under section 302(b), P.P.C. And sentenced to imprisonment for life with direction to pay an amount of Rs,30,000 as compensation to the heirs of the deceased Sohail Akhtar or in default of payment thereof to undergo imprisonment for six months; and
(ii) under section 364, P.P.C. And sentenced to imprisonment for life with a fine of Rs,20,000 or in default of payment thereof to further undergo imprisonment for six months.
2. Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to him, vide judgment dated 27-3-2002 passed by the learned Addl: Sessions Judge, Faisalabad. However, Sohail Masih and Younas Masih have been acquitted through the same judgment. Through this Criminal Appeal No,1634 of 2002 the appellant has challenged the aforesaid conviction.
3. The occurrence in the present case allegedly had taken place on 2-2-2000 and on the basis of statement (Exh.P.B.) made by Saleem Masih (P.W.11) father of the deceased Sohail Masih before Muhammad Hussain, S.-I. (P.W.16) on 24-4-2000 at 3-30 p.m. Formal F.I.R. No,204 of 2000 (Exh.P.B./1) was drafted by Ghulam Qadir Moharrar/H.C. (P.W.2) at Police Station, Nishatabad, District Faisalabad on the same day at 4-00 p.m.
4. The brief facts narrated in the F.I.R. Are that Sohail Akhtar son of the complainant aged about 17/18 years had gone out of his house to take the tuition class on 2-2-2000, but did not return home.
The complainant searched for him but could not trace him out. The complainant also advertised about his absence through proclamation in the newspapers, TV and Radio and also got lodged a report of his absence on 18-2-2000 at Police Station. He claimed that he searched for his son Sohail Akhtar and came to know that on 2-2-2000 the deceased had obtained Movie Camera worth Rs,56,000 on rent from Chand Video Centre besides a cycle worth Rs,3,000 on rent from Rashid Masih P.W. On the next day the said articles were taken from Sohail Akhtar by Arif Masih appellant and he did not return the same. Arif Masih (appellant), Younas Masih and Sohail Masih (acquitted accused) were friends of son of the complainant and they used to remain with him continuously before the incident. Arif Masih was involved in a dacoity case registered at Police Station, Sargodha Road and was challaned. Arif Masih was approached for the return of Sohail Akhtar, who admitted before him as well as Nazar Masih that Movie Camera was with him but showed ignorance about Sohail Akhtar deceased. Subsequently Arif Masih (appellant) also concealed himself. Sadiq Masih father of Arif Masih appellant was approached and demand was raised who promised that on 25- 4-2t)00 he would produce Sohail Akhtar. On 24-4-2000 the dead body lying within the area of Chak No,202/RB in the crop of wheat was found. The complainant along with Nazar Masih and Sodagar Masih had gone there and identified the dead body as of Sohail Akhtar through the clothes in which the dead body was clad. The complainant suspected that initially the dead body had been buried and then it was burnt after digging it out. The Identity Card and other documents were also found near the dead body. There were also shoes of Arif Masih which were neat and clean. According to the complainant it appeared that these things were intentionally thrown near the dead body. He suspected that Arif Masih appellant with the help of Sohail Masih and Younas Masih (acquitted accused) might have murdered Sohail Akhtar, deceased.
5. After the registration of the case Muhammad Hussain, S.-I. (P.W.16) visited the spot, took into possession dead body prepared injury statement and inquest report and then sent the dead body to Mortuary for post-mortem examination. P.W.16 also inspected the place of occurrence, recovered one piece of shirt P.6 and one piece of Shalwar P.7 (both were semi burnt), one Identity Card P.8 pertaining to Arif Masih appellant, one service card P.9 pertaining to Arif Masih, one pair of Sandie P.10/12 which were taken into possession vide memo. Exh.P.J. Attested by Salim Masih (P.W.11) and Nazar Masih (P.W.8). He also prepared rough site-plan (Exh.P.9). On 7-5-2000 P.W.16 had arrested Sohail Masih (acquitted accused) and on 8-5-2000 he got issued non-bailable warrants of Arif Masih appellant. On 13-5-2000 Younas Masih accused had joined the investigation after the grant of ad interim bail. On 16-5-2000 P.W.16 arrested Younas Masih and on 22-5-2000 secured proclamation under section 87, Cr.P.C. Of Arif Masih, got prepared the site-plan and also recorded the statements of the witnesses, sent the articles to the office of Chemical Examiner and submitted incomplete challan against Sohail Masih and Younas Masih. Abdul Hamid, A.S.-I. (P.W.15) on 21-9-2000 had arrested Arif Masih appellant and from his personal search pistol .30 bore (p.11) was recovered which was taken into possession vide Memo. Exh.P.Q. During investigation after disclosure Arif Masih appellant also led to the recovery of Movie Camera P.1, charger P.2, lead P.3, briefcase P.4 and cycle P.5 which were taken into possession vide memo. Exh.P.K. By P.W.15 in the presence of Akram Masih and Younas Masih. Then P.W.15 completed the investigation and submitted the report under section 173, Cr.P.C. In the Court.
6. The learned trial Court supplied the copies of the documents required under section 265-C, Cr.P.C. To the accused, framed the charge which was denied by them and the prosecution in order to prove the guilt of the accused has produced as many as sixteen witnesses who deposed about the circumstantial evidence only. After the close of the prosecution evidence the appellant Arif Masih along with the co-accused was examined under section 342, Cr.P.C., who denied the allegations and to a question that "why this case against you and why the P.Ws. Have deposed against you" he made the following reply:-- "Sohail Masih accused was carrying on illicit relations with Mst. Gugan daughter of Complainant prior to the occurrence. I had come to know about the illicit relations between Mst. Gugan and Sohail Masih accused due to family terms with the complainant. Younas Masih and Akram Masih P.Ws. Are the maternal uncle of Mst. Gugan suspected that I was spreading the rumour of illicit relations of above said Gugan and due to this revenge on 24-3-2000 I was abducted by Younas Masih, Akram Masih and Nazir Masih P.Ws. From the Allied Hospital, Faisalabad. The said P.Ws.
Snatched from me my identity card, service card and an amount of Rs,5,000. This matter was investigated by Civil Lines, Police, Faisalabad. My identity card and service card were falsely used in the occurrence. I was falsely involved in this case on account of above said disgrace of the complainant family."
7. On close of the trial, the learned trial Court after hearing the parties passed the impugned judgment of conviction and sentence against Arif Masih appellant which is being assailed by him through this appeal.
8. I have heard the learned counsel for the parties and also perused the record with due care and caution.
9. Learned counsel for the appellant contends that to prove the last seen evidence Fayyaz Tufail (P.W.5) was produced who has been confronted with the previous statement on the material points as according to his statement in the Court Arif Masih appellant was seen accompanying Sohail Akhtar, deceased on 2-2-2000 when he had taken Movie Camera from his shop, but when confronted with his previous statement (Exh.D.A./1) before the police, name of Arif Masih was not found mentioned therein, which is dishonest improvement and his statement should be discarded.
It is also contended that to prove last seen evidence then P.W.9 Akram Masih appeared in the Court, who claimed to have seen Younas Masih and Arif Masih on a cycle before the occurrence but he has also been duly confronted with his previous statement (Exh.D.H.) in this regard. It is next contended that to prove the recovery of cycle and Movie Camera two witnesses namely Bashir Masih (P.W.6) and Akram Masih (P.W.9) were produced but they are found in contradiction with the Investigating Officer about the presence of the inmates of the house at the time of the recoveries. It is also contended that it is an admitted fact that the alleged recovered articles are of general nature which are easily available in the market and no specific mark was mentioned about the said articles that these had any connection with Sohail Masih deceased on 2-2-2000 having taken on rent from Fayyaz Tufail and Rashid Masih. It is further contended that the extra judicial confession allegedly made by the appellant before the complainant and Nazir Masih (P.W.8) does not disclose the details of the occurrence for the commission of the murder of the deceased and it is also a weak type of evidence, which alone is not sufficient to connect the appellant with the commission of the crime. It is lastly contended that weapon had been recovered from the appellant or his co accused and the prosecution has miserably failed to prove its case beyond any shadow of doubt.
10. Learned counsel for the State on the other hand opposes this appeal on the ground that the prosecution has produced circumstantial evidence to prove the case and the witnesses had no previous enmity to falsely depose against the appellant.
11. The prosecution evidence only consists of motive, last seen, recovery near the dead body, the recoveries at the instance of the appellant, the identification of the recovered articles by the owners, the extra judicial confession allegedly made before Saleem Masih (P.W.11) and the recovery of pistol and the medical evidence produced through the statement of Dr. Khalid Mahmood Akhtar (P.W.13).
12. The motive in the present case was set up that the deceased had taken on rent a Movie Camera from Video Centre established by Fayyaz Tufail (P.W.5) and a cycle was also taken on rent by the deceased from Rashid Masih (P.W.6) and to usurp the same he was murdered by the appellant along with the co-accused. Fayyaz Tufail (P.W.5) during the trial stated that the Camera was taken on rent by the deceased Sohail Masih and he was accompanied at that time by the present appellant but he has been confronted on this pistol with his previous statement (Exh.P.B) wherein the factum that the appellant was accompanying with the deceased has not been mentioned.
P.W.5 also conceded that he had not given the marks or specification of the Camera in his statement (Exh.D.A.) before the police and at the trial he appears to have improved his statement in this connection as well. Similarly Rashid Masih (P.W.6) and Naseer Masih (P.W.7) did not state anything against the appellant and they only claimed that the deceased had taken on rent a cycle which was subsequently identified by P.W.7 Naseer Masih at the Police Station. It is also noteworthy that P.W.5 had moved an application (Exh.D.B.) for taking the Movie Camera on Superdari in which he had specifically mentioned that the said Camera was taken on rent by Arif Masih appellant while Naseer Masih in the application (Exh.D.D.) moved for taking the Superdari of the cycle also had not mentioned that the said cycle was taken on rent by the deceased from him. Thus it could not be established by the prosecution that the said articles were taken on rent by the deceased from the aforesaid witnesses who have made contradictory statements and also made improvements which appear to be dishonest and on material point. I am satisfied that no motive could be proved against Arif Masih, appellant.
13. The second piece of evidence is that the deceased was seen in the company of the appellant on 2-2-2000 and from the said time the deceased was missing. To prove this statement Akram Masih (P.W.9) has been produced. He claimed to have seen Arif Masih with the deceased but he has been duly confronted with his previous statement regarding accompanying of Arif Masih with the deceased and his statement is found to be full of contradictions which prove him not a truthful witness. It is also strange that Akram Masih (P.W.9) had seen the deceased in the company of the appellant and the deceased remained missing according to the prosecution's own story from 2-2- 2000 till the recovery of the dead body on 24-4-2000 but during this long period P.W.9 had not appeared before the police or contacted the complainant to render the information that he had lastly seen the deceased in the company of the appellant in spite of that according to the complainant announcements were made and proclamation got published about the missing of the deceased. This piece of evidence seems to have been concocted subsequently and the last seen evidence is not believable.
14. The other piece of evidence is to the effect that the appellant had admitted that he was in possession of Movie Camera, but he became absent and his father had promised for its return.
Admittedly the complainant had never approached the police for reporting the matter unless the dead body was recovered. It means that it was not in the knowledge of the complainant that the deceased and the appellant were jointly seen by the P. Ws. And after that the deceased was missing while the appellant had taken the Camera in his possession, which could have been recovered from his possession by registering the case against him. The story being afterthought is not believable. ##TEE##
15. Then to prove the case against the appellant it has been brought on the record at the time of recovery of dead body of the deceased the Identity Card P.8 of the appellant and his service card P.9 were also found lying there along with the sleepers from the field of Chak No,202/RB Bhaiwala. It is noticed that the complainant earlier filed Writ Petition No,9872 of 2000 in this Court for the registration of the case while stating that the application moved by him was kept aside by the police and separate application was prepared on which his thumb-impressions were obtained and he disowned his statement (Exh.P.B.) before the police. According to him the appellant had contacted him on Telephone and demanded ransom amount. The said story was introduced by the complainant and in the said writ petition he had also stated that on 24-4-2000 he was called by the S.H.O. Of Police Station, Nishatabad at 5-00 p.m. And asked him to identify the Camera lying in the Allied Hospital. He rushed to Allied Hospital, Faisalabad to identify the Camera of his son Sohail Akhtar. So the place from where the dead body was recovered was disowned by the complainant in the writ petition which was filed by him in this Court on 26-5-2000 through Rana Sardar Ali Khan, Advocate and the said writ petition was disposed of by this Court on 29-5-2000 with the direction to the police to redress the grievances of the complainant. So Exh.P.B./1 has been disowned by him and the recovery of articles from the field is found to have been in contradiction with the stand taken by the complainant in his statement before the Court. It is also doubtful that how the Identity Card and service card of the appellant were found lying with the dead-body intact, when the body was in burnt condition and place or murder was not the same, which could suggest that during the process the said Cards had fallen there. The possibility of concoction of such piece of evidence afterwards cannot be ruled out.
16. The next piece of evidence is the recovery of pistol from the appellant at the time of his arrest.
No empty was recovered from near the place of occurrence and the recovery of pistol is inconsequential which cannot support the prosecution story in any manner.
17. Then comes to the evidence of the recoveries from the appellant effected on his disclosure after his arrest by Abdul Hameed, A.S.-I., P.W.15. It has been admitted by Akram Masih (P.W.9) that the said recovered articles were of general nature. There were no specification marks elf differentiation and the said Camera and the cycle were easily available in the market. Even otherwise as discussed above the prosecution has failed to establish that these articles were lastly in possession of the deceased which were taken by the appellant and to usurp the same he had committed the murder of Sohail Akhtar deceased. These recoveries are not sufficient to connect the appellant with the alleged crime.
18. The medical evidence also does not support the prosecution case as according to P.W.13 Dr. Khalid Mahmood Akhtar only certain parts of the dead body were produced before him, which were not identified by anybody before him and the said parts were not sufficient to identify that it was the parts of the dead body of the deceased. Hence the identification of the dead body was also doubtful. Moreover, no cause of death was disclosed.
19. After perusal of the whole evidence on record and the above discussion, I am satisfied that the prosecution has miserably failed to bring home guilt to Arif Masih appellant beyond any shadow of doubt through any convincing evidence. Resultantly this appeal is accepted, the impugned judgment of conviction and sentence is set aside and Arif Masih appellant is acquitted of the charge of Qatli-Amd of Sohail Akhtar deceased, who shall be set at liberty if is not required in any other criminal case.