' MUHAMMAD FARRUKH MEHMUD, J.---Jameel Ahmad-appellant along with Abid Ali and Javed Iqbal was sent up to face trial in case F.I.R. No,123 registered at P.S. Kot Sabzal on 2-6-2001 for offences under sections 302/34, P.P.C. For causing the murder of Abdul Hameed. Vide judgment, dated 4-4- 2003, Mr. Muhammad Rashid Qamar, learned Additional Sessions Judge, Rahimyar Khan, while acquitting Abid Ali and Javed Iqbal, co-accused, convicted Jameel Ahmadappellant for offence under section 302(b), P.P.C., and sentenced him thereunder to life imprisonment. He was also directed to pay rupees one lac as compensation to the legal heirs of the deceased or in default in payment thereof he was to suffer further R.I. For six months. Benefit of section 382-B, Cr.P.C. Was given to the convict-appellant.
2. Through this appeal Jameel Ahmad has challenged his above said conviction and sentence.
3. Abdul Khaliq, A.S.-I./P.W.10, after receipt of information reached T.H.Q. Hospital, Sadiqabad at 9-00 a.m. On 2-6-2001 and drafted complaint Exh.P.A. On the statement of Hameeda Bibi, P.W.1, widow of Abdul Hameed, and formal F.I.R. No, 123 of 2001 was registered on the same at 9-50 a.m. For offences under sections 302/34, P.P.C.
4. According to prosecution case, the complainant along with her deceased husband and daughters lived in Satellite Town, Rahimyar Khan. The husband of the complainant was a labourer.
On 29-5-2001 at 6-30 p.m., Abdul Hameed borrowed cycle belonging to Jameel Ahmad appellant, took his daughter Shahida Bibi to the clinic and after leaving her there returned. He also returned the cycle to Jameel Ahmad. After some time Abdul Hameed left the house, in order to fetch certain papers from the Patwari. He did not return till late in the night. That caused alarm to the complainant, who started searching for her husband. One day prior to the registration of case in the evening, she received information that an unidentified body was lying near the manure within the vicinity of Chak No,214/P. After receipt of information, the complainant along with Jameel Ahmad appellant and Iftikhar Ahmad boarded a van and went to the spot where the dead body was lying. It was observed that the deceased had received deep wound on the back side of his head. His neck was swollen and he had also received a wound in between thumb and index finger of the right hand. The dead body was brought to Sadiqabad Hospital.
5. The motive as narrated in the F.I.R. Was that 15/16 years prior to the occurrence, Abdul Hameed deceased had purchased a plot measuring 1 Kanal from Baba Matloob Shah. When the deceased went to take possession of the plot, he was informed by Abdul Khaliq Sanghi that, in fact, his plot was one which contained graves. Thereafter Javed and Iqbal, sons of Matloob Shah, in lieu of that plot, gave a five Marlas plot situated in Chak No,105/P to the deceased, who took possession of the plot and constructed a room on it. Javed son of Matloob wanted to dispossess the deceased and sell the plot. A Panchayat was convened on that regard but the matter could not be decided. For the above noted reasons, the complainant suspected that Javed and others had committed the murder of Abdul Hameed to obtain possession of the plot.
6. The appellant was arrested on 17-7-2001 by Abdul Latif, S.H.O./P.W.12. While in custody on 19-7- 2001, the appellant led to the recovery of blood stained Chhuri P.6, purse and Identity Card of the deceased from his sitting room. These articles were taken into possession vide memo. Exh.P.B.
Prepared by P.W.12 and attested by Zulfiqar Ali and Shakeel Ahmad P.W.2. On the same date, Jameel Ahmad, while in police custody, led to the place where Abdul Hameed was thrown in the Canal. Map Exh. P.C. Was prepared on that regard. According to relevant record, on the same date, i.e, 19-7-2001, Abid Ali (acquitted accused), while in custody, led to the place of murder of Abdul Hameed. Memo. Exh.P.C./2 was prepared on that regard.
7. During trial in order to prove its case, the prosecution produced fourteen witnesses before the learned trial Court. Mst. Hameeda Bibi, complainant and Iftikhar Ali, brother of the complainant, appeared as P.Ws 1 and 3. P.W.1 Mst. Hameeda Bibi deviated from the story narrated in the complaint and did not state that Jameel Ahmad appellant accompanied her and Iftikhar Ali to the spot where the dead body was lying. She also did not state a word about the motive narrated in the complaint, according to which Javed and Iqbal sons of Baba Matloob Shah were implicated.
She added that on 3-6-2001 at 4-30 p.m., she was sitting with Iftikhar and Zulfiqar, P.Ws. In her sitting room when Jameel Ahmad appellant came there and said that on 29-5-2001 after dropping the daughter of the deceased at clinic, he and deceased went together to the Patwari for getting copy of `Fard'. While they were on their way, they met Shakeel (P.W.2), cousin of the complainant and exchanged Salam with him. He further stated that after Maghrab time, while it was dark, they reached near the tubewell of Government. Water Scheme. Abdul Hameed was driving the cycle, while he was sitting on the rear seat. He took out Chhuri from his Shalwar and inflicted Chhuri blow on the back of Abdul Hameed. He gave another blow which landed in between the index finger and thumb. He further stated that while he was causing injuries, he himself received injury on his right hand. He further disclosed that he had committed the murder, as the deceased was not willing to give the hand of his daughter, Mst. Bushra, to him. He further disclosed that he had concealed the blood-stained Chhuri, Identity Card and purse of the deceased in the almirah of his house. Mst.
Hameeda Bibi, however, admitted that the F.I.R. Was lodged on the basis of written complaint Exh.P.A. Which contained her thumb impression. Dr. Mazhar Hussain P.W.7 stated that he conducted postmortem examination on the dead body of Abdul Hameed on 2-6-2001. According to his observations, rigor mortis was present, eye-balls and facial tissue were absent; left ear pinna was absent; scalp was hairless; genitalia was swollen and the whole body was swollen and reddish pale; neck was swollen on right side; two central teeth were absent in upper and lower jaws; nasal bone and margins of eye balls were fractured; and few maggots were present in the eye ball. He also observed two injuries; one caused by sharp; edged weapon on the right side of head which was 15 c.m. In length and was about 5 c.m. Away from right to nape of neck and the other was a small wound in between right thumb and index finger. On dissection, he found that parietal bone close to junction of parietal temporal and occipital bone was fractured externally; brain matter was exposed. He held his final opinion till the expert opinion of Chemical Examiner and Histopathologist.
After receipt of the reports of the Bacteriologist/ Histopathologist, dated 31-10-2001, he opined that Abdul Hameed lost his life due to head injury (Skull fracture and brain damage) and Asphyxia due to throttling. During cross-examination, he admitted that the Bacteriologist did not opine whether the injury on the head was ante-mortem or post-mortem. According to his opinion, the time that elapsed between death and postmortem was about four days. P.W.8 Dr. Mahmood-ul-Hassan, on 18-7-2001, examined Jameel Ahmad appellant. He observed one healed wound on the index finger of the left hand on lateral side of second phalanx. According to him, the injury was sustained within 1-1/2/2 months. During cross examination, he admitted that he did not state in his report, whether the injury was caused by sharp edged weapon or by blunt weapon. He further admitted that the MLC was not prepared on the prescribed register. P.W.2 Shakeel stated that he had seen the deceased and the appellant together on 29-5-2001. He further stated about the recoveries at the instance of the appellant and the site plan relating the place where the dead body was thrown.
Abdul Khaliq, A.S.I./P.W.10, stated about the drafting of complaint Exh.P.A. And initial investigation of the case. He also stated about the recording of supplementary statement of the complainant as well as those of P.Ws. Abdul Latif Kanju, Inspector/P.W.12, stated about the arrest of the accused on 19-7-2001. He also stated about the recoveries effected at the instance of the appellant and initial investigation of the case. During cross-examination, he conceded that he did not visit the house of the deceased during the investigation of the case and also did not join the daughters of the complainant in the investigation of the case. The rest of the witnesses are formal in nature and need not be discussed. After placing on record, the reports of Chemical Examiner (Exh.P.L.) regarding Chhuri, Serologist (Exh.P.M.) and Bacteriologist (Exh.P.N.), the prosecution closed its case.
8. In his statement, recorded under section 342, Cr.P.C., the appellant claimed to be innocent; and stated that, in fact, the deceased had engaged his daughter Mst. Bushra with him in his life time and as the complainant was not happy over it, she involved him in this false case. Neither the appellant appeared in his defence as a witness under section 340(2), Cr.P.C., nor he produced any D.W. During trial.
9. Learned counsel for the appellant has argued that the prosecution case is pregnant with doubts, that the circumstantial evidence has come through the mouth of witnesses, who are not only related to the deceased but also are not reliable; that the story of extra-judicial confession is belied by the medical evidence; that the complainant, who is architect of the case, had been changing colours and taking different stances during the investigation and the trial. The learned counsel has lastly argued that the learned trial Court has rightly disbelieved the prosecution evidence qua the co-accused Abid Ali and Javed and has wrongly convicted the appellant on the basis of the same evidence. Learned counsel appearing on behalf of the State has argued that the extra-judicial confession is supported by the medical evidence as well as the evidence of having been last seen together. The learned counsel has further argued that the recoveries have been effected at the instance of the appellant which connect him with the commission of the offence.
10. I have heard the learned counsel for the parties and have also scanned the entire record of the case.
11. It is not a case of direct evidence. The prosecution has relied upon circumstantial evidence to prove its case. Circumstantial evidence is to be appreciated according to, well settled principle that circumstantial evidence should be well knit like a chain whose one end should point to the deceased, while the other to the neck of the accused, P.W.1, wife of the deceased, is author of the accused. She also stated about the confession of the appellant made before her, her brother P.W.3 and one Zulifqar who was not produced during trial. In her first statement, she stated that after leaving his daughter Mst. Shahida' Bibi at the clinic, the deceased returned to his house and after some time left the house to meet with Patwari. It was not mentioned that deceased had accompanied Jamil Ahmad appellant. In the same statement, she stated that after receipt of information about the dead body, she along with Jamil Ahmad appellant and Iftikhar Ali P.W.3 went to the spot where the dead body was lying. She further stated that Iqbal and Javed sons of Matloob Shah were inimical towards the deceased over the possession and ownership of a plot. This witness made dishonest improvements in her statement recorded by the learned trial Court; firstly, she stated that appellant accompanied the deceased when the latter left to visit Patwari; secondly, she suppressed the fact that after receipt of information about the dead body, Jamil appellant had accompanied her and P.W.3 to the place where the dead body was lying; and thirdly, she did not speak a word about the motive which she had narrated in Exh.P.A. Her statement qua the confession of the appellant before her and other P. Ws is to be adjudged and valued in the light of the statement as a whole and the piece of her statement relating to extrajudicial confession cannot be separated. According to her, on 3-6-2001 at about 4-30 p.m., while she, along with her daughters, her brother Iftikhar/P.W.3 and Zulfiqar, was sitting in her Baithhak, Jamil came there and disclosed that on 29-5-2001, after dropping daughter of the deceased at clinic, he and deceased went to the Patwari for getting copy of 'Fard' . They were seen by Shakeel P.W.2 and when it was dark and they were near the tubewell, Government Water Scheme, he took out Chhuri and inflicted blow on the back side of Abdul Hameed. He gave another blow which caused injury in between index finger and thumb of Abdul Hameed deceased. He further stated that he also received injury on his right hand. He also stated that he threw the dead body in the canal. P.W.3 Iftikhar also most repeated the story narrated by P.W.1. It is noteworthy that P.W.3 also dishonestly suppressed the fact that after receipt of information, he, along with P.W.1 and Jamil appellant had gone together to the place where the dead body was lying. The F suppression of facts and the dishonest improvements made by P.Ws.1 and 3 have c, ised serious injury to the veracity of their statements.
The story of confession put forward by them is belied by the medical evidence, which was not challenged, as P.W.7, who had conducted the post-mortem examination, stated that the cause of death was head injury and asphyxia due to throttling. Jamil appellant never confessed or disclosed about throttling. According to the story of confession, one injury with Chhuri was caused on the head of the deceased, while the other on the hand. On the contrary, according to medical evidence, nasal bone and margins of the eye balls were fractured and, as noted above, one of the causes of death was asphyxia due to throttling. It is also note worthy that in order to put force in their statements both the P.Ws. Stated that the appellant had confessed that during the occurrence he sustained injury on his right hand. Firstly, the injury was not noticed by the P.Ws., while Jamil remained with them and went along with them to the place where the dead body was lying,; secondly, according to doctor P.W.8, the injury was on the left hand and not on the right hand. Confession can be relied upon only if it is made voluntarily and without any inducement of threat or promise. On that score P.W.1 stated that when Jamil made confession, he was in deep state of anxiety and stated that if he was not forgiven, he would commit suicide. On the other hand, he never surrendered either to the witness or to the police till 19-7-2001 (more than 1-1/2 months of making confession) when he was arrested by Abdul Latif/S.H.O. It is also note worthy that allegedly confession was made before more than three persons yet none of them apprehended the appellant and produced him before the police. The above noted circumstances refute voluntariness of the confession.
12. The upshot of the whole discussion is that the statements of the P.Ws. Relating to the confession of the appellant before them suffer from serious doubts and, thus, cannot be relied upon.
13. As confirmatory evidence, P.W.2 Shakeel, who is cousin of P.W.1, was produced, who stated that on 29-5-2001, he had seen Jamil and deceased together. His statement is not worth of the paper of which it was recorded, as he did not disclose at what time, morning, evening or afternoon, he had seen the deceased and the appellant together. Not only this, he also did not mention, whether the deceased and the appellant were on foot, on a cart or on a bicycle. Furthermore, he is resident of Faisalabad. He admitted that he had come from Faisalabad to give evidence. He further admitted that he did not own any house in Satellite Town, Rahimyar Khan. When he was grilled on that score, he rescued himself by stating that he stayed in the house of the mother of the deceased. The fact that the deceased and the appellant were seen together only by a related witness and not by any other resident of the area has caused serious dent in the prosecution story.
14. According to memo. Exh.P.B., the appellant, while in custody, on 19-7-2001, led to the recovery of a blood-stained Chhuri and a purse containing identity card of Abdul Hameed from his house. In order to prove recoveries, prosecution produced P.W.12. Abdul Latif Kanju, Inspector, and P.W.2 Shakeel. P. W.12 in his statement did not mention that purse containing identity card of Abdul Hameed was recovered at the instance of appellant at all, while P.W.2 stated about the recovery of Chhuri and purse. No reliance can be placed on the evidence of recovery for the following reasons:--
(i) In order to save himself from prosecution, allegedly, the appellant threw the dead body of Abdul Hameed in the canal. In the circumstances, it is revolting to common sense that the accused would keep incriminating evidence intact to produce the same before the I.O. As a souvenir after his arrest. The appellant had all the opportunity to throw the Chhuri as well as purse along with the dead body in the canal and finish with it.
(ii) Not a single independent witness from the locality was produced to support the recovery evidence. No reliance can be placed on the statement of Shakeel who had already been disbelieved on the point of last seen evidence. It is salutary principle of law that one piece of tainted evidence cannot be corroborated by another piece of tainted evidence.
15. In her statement, P.W.1 stated that she had suspected that deceased was murdered by sons of Matloob Shah, as a dispute over a piece of land existed between them. During trial she did not state a word about it and came out with a different motive. According to her, the motive behind the occurrence was disclosed by none than the appellant himself. According to P. Ws the appellant wanted to marry Mst. Bushra daughter of the deceased but the deceased did not agree to the proposal, which caused annoyance and grievance to the appellant. This story is also belied by the circumstances of the case. It is not believable that the mother did not know about the proposal which was made 2-1/2 years prior to the occurrence and existed till the death of Abdul Hameed.
There is no evidence that after refusal, Jamil was ever stopped from visiting the house or the relations were strained between the deceased and the appellant over the issue. The best evidence available on that regard was that of Mst. Bushra, who is alive and adult, but she was not produced during trial. Not only this, P.W.12 conceded that he did not join the daughters of the deceased in the investigation of the case.
16. To sum up the case the prosecution miserably failed to prove its case against the appellant beyond doubt; hence, I allow this appeal, set aside the judgment passed by the learned trial Court and acquit the appellant of all the charges. He would be released forthwith, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.