' MUHAMMAD NAWAZ BHATTI, J.---This appeal is directed against the judgment dated 26-6-2002 passed by the learned Additional Sessions Judge, Vehari, whereby the appellants Mumtaz alias Taju and Zafar Iqbal were convicted under section 302(b), P.P.C. And sentenced to life imprisonment in case F.I.R. No,82 dated 6-4-1996 registered under sections 302, 109 and 34, P.P.C. At Police Station Sadar, Vehari. They were also ordered to pay compensation of Rs,50,000 each to the legal heirs of the deceased and in default thereof to undergo S.I. For a period of three months each.
Benefit of section 382-B, Cr.P.C. Was also given to the appellants.
2. Briefly stated the prosecution case as contained in F.I.R. Exh. PG is that Muhammad Ramzan alias Dhami deceased who was brother of Bashir Ahmad complainant (P.W.9) was driver at the tractor of Ch. Nazir Muhammad Duggal resident of Chak No,198/EB and used to return home at night. Last night of the registration of case when he did not return, the complainant along with Maryam and Nazar Muhammad went to Chak No,198/EB in search of him. Muhammad Hanif the 'Munshi' of Nazar Muhammad Duggal told them that Muhammad Ramzan had gone preceding night at about` 9/1.0-00 p.m. After parking the tractor at his Dera In the meantime, Peeran Ditta (P.W.10) came there who told that Muhammad Ramzan was going towards Chowk Kumharan at night. He further stated that outside the flour Chakki, Riaz and Nazar accused were standing and were talking about Ramzan deceased. At about 8-00 a.m. The complainant along with Waryam, Nazar and Peeran Ditta went towards Chowk Kumharan to find out Muhammad Ramzan at flour Chakki where they saw that his brother Muhammad Ramzan was lying murdered in the cotton 'Painja' room. His neck was cut down. He went on stating in the F.I.R. That Mumtaz alias Taju, Anwar and Zafar had committed the murder of his brother on the instigation of Riaz and Nazar.
3. The motive behind the occurrence as alleged by the prosecution was that Anwar accused (since' dead) doubted that the deceased Muhammad Ramzan had developed illicit relations with his sister Mst. Hafizan Bibi (acquitted accused). About 15 days before the occurrence, Mst. Hafizaa Bibi left the house of her parents and went to the house of Muhammad. Ramzan deceased. However, through the intervention of Ch. Khan Muhammad Duggal, she was made to return to her parents.
Due to this grudge, the accused Mumtaz alias Taju, Anwar (since dead) and Zafar Iqbal had murdered his brother.
4. After the investigation of the case, complete challan was sent to the Court. Charge was framed against- the appellants along with Mst. Hafeezan, Riaz Ahmad, Rehmat Ali, Nazar and Shaukat Ali to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examanied thirthen witnesses.
6. Dr. Muhammad Abid (P.W.2) conducted the post-mortem examination of Muhammad Ramzan deceased and found following injuries on his person:--
(1) An incised wound 14 c.m. x 6 c.m. Cutting muscles thyroid cartilage, cervical vessels cervical vertebrae in line with the injury on front of neck in transverse plane.
(2) An incised wound 5 c.m. x 1.5 c.m. Bone exposed on the back of right side of neck about 3 c.m.
Posterior to the right ear.
(3) An incised wound 3 c.m. x 1 c.m. x bone deep on the back of left at the level of posterior hair line about 1.5 c.m. Away from midline on left side of neck.
(4) An incised wound 2 c.m. x 1 c.m. Bone deep on the back of left side of neck 3 c.m. Away from Injury No,3.
(5) A contusion 2 c.m. x 2 c.m. On right side of forehead with depression about 3 c.m. Above right eye-brow.
(6) An incised wound 4 c.m. 1/2 cm. x muscle deep at the proximal end of terminal phalanx of right thumb.
(7) An incised wound 4 c.m. x 2 c.m. x going deep on the front of abdomen 5 c.m. Below the sternum of right side of front of abdomen.
(8) An incised wound 5 c.m. x 2.5 c.m. x going deep 2 c.m. Away on right side from Injury No,7 on anterior abdomen.
(9) An incised wound 9 c.m. x 3 c.m. Going deep with intestines and omentum coming out on left side of abdomen about 3 c.m. Left costal margin.
' In his opinion, death was due to Injuries Nos.1, 7, 8 and 9 individually and collectively which were sufficient to cause death in ordinary course of nature. Injury No,5 was caused by blunt weapon while rest of the injuries were caused by sharp-edged weapon. All the injuries were ante-mortem.
The probable time that elapsed between injuries and death was immediate and the probable time that elapsed between death and post-mortem was within 24 hours. Photostat copy of post- mortem examination report Exh.PA is correct Photostat copy of the original which was in his hand and signed by him.
7. Abdul Khaliq Khan, S.S.P. (P.W.7) went to the place of occurrence on 5-9-1997 and conducted the investigation. He recorded the supplementary statement of Bashir Ahmad and Nazar Muhammad P.Ws. On 19-9-1997. He also recorded the statement of Shabbir Ahmad P.W. On the same date under section 161, Cr.P.C. He concluded that not only Hafeezan accused committed 'Qatl-i-Amd' of Muhammad Ramzan alias Dhami but Nazar, Riaz, Mumtaz alias Taju, Muhammad Anwar, Zafar Iqbal, Rehmat and Shaukai alias Shoki accused also actively participated in the occurrence and committed 'Qatl-i-Amd' of Ramzan along with Mst. Hafizan Bibi accused.
8. Bashir Ahmad (P.W.9) is complainant of this case. He reiterated the contents of the F.I.R. Exh.PG Peeran Ditta (P.W.10), Waryam (P.W.11) and Yousaf (P.W.12) supported the statement of the complainant.
9. Shabbir Ahmad (P.W.13) stated himself as eye-witness of the occurrence. He deposed that at the time of occurrence he had gone to the place of occurrence i.e, flour Chakki to collect his bag of wheat at 10-00 p.m. He saw that Ramzan deceased was lying on the ground of room of Painja machine while accused Nazar had caught hold of the deceased from his arms, Zafar accused armed with Sota had placed his hand on the mouth of the deceased, Anwar accused (since dead) had caught hold of the deceased from his legs. Mumtaz alias Taju accused armed with Chhurri and Riaz accused armed with dagger along with Rehmat Ali accused empty handed was also present there. Zafar accused inflicted Sota blow on the forehead of the deceased, whereafter Riaz and Mumtaz accused gave repeated blows to the deceased with their respective weapons.
Shabbir Ahmad (P.W.13) further deposed that Riaz accsued had threatened him that if he disclosed to anyone about the occurrence, he would meet the same consequence. He is also the witness of alleged joint confessional statement made by Mumtaz, Zafar, Anwar (since dead), Nazar, Riaz, Rehmat and Shaukat accused.
10. Javed Iqbal HC(P.W.1) received a sealed parcel containing blood-stained earth and a parcel of blood-stained knife along with the last-worn clothes of the deceased from the Investigating Officer for keeping the same in safe custody of Malkhana. On 10-4-1996, he handed over the parcel of blood-stained earth to Abdul Sattar constable for onward transmission to the office of Chemical Examiner Lahore. He also handed over the parcel of blood-stained knife to Abdul Sattar constable for onward transmission to the said office.
11. Muhammad Sarwar, S.I. (P.W.3) deposed that Mst. Hafizan Bibi was under arrest and in his presence during interrogation by Taj Muhammad Inspector, she disclosed and led to recovery of blood stained knife P.1 from his residential room, which was hidden in an iron box. The Investigating Officer prepared a sketch, made it into a parcel and took into possession vide memo. Exh.PC. He signed on it. On the same day, she disclosed d led to the recovery of blood-stained clothes Shalwar P.2 and Shirt P.3 from her residential room where the same were put in an iron box. The Investigating Officer prepared sealed parcel of Shalwar P.2 and Qameez P.3 and took into possession vide memo. Exh.PD. He also signed it.
12. Ali Ahmad constable (P.W.4) escorted the dead body of Muhammad Ramzan to D.H.Q. Hospital, Vehari. After the post-mortem examination, the Medical Officer handed over him the last-worn clothes of the deceased, blood-stained Shirt P.4, Shalwar P.5 and a Safa P.6. All were blood-stained.
He handed over the above-mentioned clothes to the Investigating Officer on the same day who took the same into possession vide memo. Exh.PE. He signed on it.
13. Abdul Sattar constable (P.W.5) stated that on 10-4-1996, Javed Iqbal Moharrir 136/HC handed over him one sealed parcel containing blood-stained earth for onward transmission to the office of Chemical Examiner, Lahore. On 11-4-1996, he delivered the same in the said office intact. On 14-4- 1996, he received the result from the said office and brought to the police station.
14. Khalid Mehmood (P.W.6) is son of Muhammad Shafique draftsman who had prepared the site- plan. He deposed that he could identify the writings and signatures of his father. He had seen scaled site-plan Exh.PF. The writings and notes and drawing on it in black ink were in the hand of his father which also bore the signatures of his father.
15. The learned ADA gave up the P.Ws., namely, Khan Muhammad Duggal, Ch. Sardar Muhammad, Muhammad Hanif, Javad Masood Ghuman, Muhammad Akram, Ghulam Rasool, Muhammad Khan, Muhammad Nawaz S.-I., Rana Ali Muhammad Inspector, Muhammad Hussain S.-I., Muhammad Sadiq S.-I., Taj Din Inspector being won over by the accused persons, whereas P.Ws., namely Nazar and Mr. Abdul Razaq Judical Magistrate were given up being unnecessary. He tendered in evidence report of Chemical Examiner regarding blood-stained earth Exh.PK and of Serologist regarding blood-stained earth Exh.PS and closed the prosecution case.
16. The accused were examined under section 342, Cr.P.C. Wherein they stated that they were innocent and had falsely been charged. They produced Taj Din, D.S.P. And Muhammad Afzal as defence witnesses.
17. Taj Din, D.S.P. (D.W.1) deposed that on 12-4-1996, he was posted as Inspector/S.H.O. Police Station Sadar, Vehari. On the same day, he started the investigation of the case. On 2-5-1996, he got prepared the site-plan Exh.PF through draftsman. All red notes from 1 to 5 were in his handwritten and signed by him. On 11-5-1996, he arrested Riaz, Nazar, Taju, Anwar and Zafar accused in this case. On 20-5-1996, he arrested Mst. Hafizan Bibi accused who led to the recovery of Chhurri P.1. He got prepared memo. Of recovery of Chhurri Exh.PC. It was in his handwritten and signed by him. On the same day, Mst. Hafeezan Bibi accused got recovered bloodstained Shalwar P.2 and Qameez P.3 from her house which were taken into possession vide recovery memo. Exh.PD. He recorded the statements of the P.Ws. Regarding recovery under section 161, Cr.P.C. And he also prepared rough site-plan of the place of recovery of Chhurri P.1. On 29-5-1996, after due investigation, he declared Riaz, Nazar, Taju, Anwar and Zafar accused innocent in this case and prepared the report under section 173, Cr.P.C. Against Mst. Hafeezan Bibi accused. He further deposed that according to the file, Rao Saleem Akhtar, D.S.P. After declaring the above mentioned accused persons innocent except Mst. Hafeezan Bibi, made discharge report and the innocent accused persons were discharged by the order of Mr. Nusrat Ullah Khan Niazi, the learned Magistrate Section 30, Vehari.
Kosar Abbas, D.S.P. And Rana Muhammad Iqbal S.-I. Also declared the abovementioned accused persons innocent. Kosar Abbas Gilani, D.S.P. Had died. He had acquainted with his handwriting and signatures. Rana Muhammad Iqbal, S.P. Also declared the abovementioned accused persons innocent. The complainant had not produced the eyewitnesses of this case during the investigation The place of occurrence found a 'Painja' machine room of Ghulam Rasool. The motive asserted by the complainant in the F.I.R. Remained the same during his investigation. He found during investigation that it was a blind murder.
18. Muhammad Afzal (D.W.2) deposed that the Painja machine where the deceased was done to death was in the ownership of his father. About six years and two months ago, he went along with his father at the Painja machine at 7-00 a.m. And they saw a dead body there who was later on identified of Muhammad Ramzan. They went to the Dera of Khan Muhammad Duggal and informed him about the murder of Muhammad Ramzan. He along with Nazar Muhammad Duggal came at the place of occurrence and inspected the site. They informed the heirs of the deceased after inspection of the place of occurrence.
19. Learned counsel for the appellants has contended that it is an unseen occurrence and blind murder; that the names all the accused persons are not mentioned in the F.I.R.; that there is not any role specifically attributed to them; that is a night occurrence and nobody witnessed the occurrence; to the accused persons except Mst. Hafeezan Bibi were declared innocent in five investigations; that the prosecution case in highly doubtful; that co-accused Riaz, Mst. Hafeezan, Rehmat Ali, Nazar Muhammad and Shaukat Ali alias Shoka were acquitted by the learned trial Court and as the case of the appellants is identical to their case, they are also entitled to be acquitted; that it is motiveless case; that extra-judicial confession allegedly jointly made before the close relatives of the complainant is -not admissible under the law; that whole prosecution case is based on circumstantial evidence which itself is a very weak type of evidence and that an effort has been made by the prosecution through the statement of Shabbir Ahmad (P.W.13) to make it a case of ocular version but his sole statement itself is not sufficient to prove the case against the accused persons and even otherwise statement of Shabbir Ahmad (P.W.13) is highly doubtful and their conviction cannot be based on such type of weak evidence.
20. On the other hand, learned counsel for the State has supported the impugned judgment and submitted that names of the five accused persons are mentioned in the F.I.R. While the names of other accused persons were brought on record during investigation of this case; that this is a brutal murder And a number of injuries were caused on the vital parts of the body of the deceased; that it was a pre-planned murder and that the accused persons had confessed their guilt before the P.Ws.
21. I have heard learned counsel for the parties and also gone through the record.
22. According to the statement of the complainant (P. W . 9) Exh. PG, the F . I . R. , the motive is that Anwar one of the co-accused (since dead), had suspected that his sister Mst. Hafeezan Bibi accused had the illicit relations with the deceased Muhammad Ramzan and 15 days prior to the occurrence, Mst. Hafeezan Bibi accused had run away to the house of the deceased. She was returned to her parents at the intervention of Ch. Khan Muhammad Duggal, the landlord of the area. Then due to that grudge, the accused persons with consultation each other have murdered the brother of the complainant. While appearing the complainant as P.W.9, he stated that the motive behind the occurrence was that Mst. Hafeezan Bibi laccused considered herself the sister of wife of Muhammad Razman deceased. She came at the house of the deceased 15 days prior Ito the occurrence after having quarrelled with her husband. She was returned and due to this grudge the accused persons committed 'Qatl-i-Amd' of Ms brother Ramzan deceased. The complainant (P.W.9) himself changed the motive mentioned in the F.I.R. Exh.PG while appearing as P.W.9 in his evidence. Abdul Khaliq, S.S.P. Whd held all the accused persons guilty, stated in ,his evidence that he was unable to give any finding about the motive in this case. It all shows that real motive for the occurrence has been suppressed by the prosecution. The motive asserted by P.W.9 complainant in his evidence is not plausible. If the petitioner has asserted a motive in the F.I.R., then it must have been proved on the same line as mentioned in the F.I.R. Exh.PG. So it cannot be ascertained that under what circumstances, Ramzan deceased was murdered by the accused persons.
23. As far as the extra-judicial confession by the appellants Mumtaz , and Zafar before Nazar Muhammad P.W. Is concerned, said Nazar Muhammad P.W. Was given up and has not come to the Court to verify the contention of the prosecution that they really confessed their guilt. Therefore, the extra-judicial confession of the appellants has no value in the eyes of law.
24. Shabbir Ahmad (P.W.13) has been produced by the prosecution to give ocular account of the occurrence but his statement is not corroborated by any other witness rather Abdul Khaliq, S.S.P.
(P.W.7) before whom he allegedly made ocular account of occurrence has stated in his evidence that he did not find any eye-witness of the occurrence during his investigation. His sole statement cannot be made the basis for conviction of the appellants. Taj Din, D.S.P. (D.W.1) has also stated that the complainant could not produce any eyewitness of the occurrence during investigation. If Shabbir Ahmad had actually seen the occurrence as narrated by him in the trial Court while appearing as P.W.13, he would have definitely made such statement during the investigation of the case but he has not appeared before any of the Investigating Officers to give ocular account of the occurrence. His statement is not reliable and the learned trial Court has wrongly believed the same to award the conviction and sentence to the appellants.
' Both the appellants had been declared innocent during five police investigations along with other co-accused who have been acquitted by the learned trial Court but they have been convicted and sentenced only on the statement of Shabbir Ahmad (P.W.13) which is not sustainable in the eyes of law.
25. It appears from the facts and circumstances of the case that it is an unseen occurrence wherein some unknown accused committed the murder of Muhammad Ramzan. Although five police investigations were conducted in the case but none of them could find out the real culprit and murder of Muhammad Ramzan remained shrouded in mystery.
26. From the discussion made above, I am of the view that the prosecution has not proved its case against the appellants beyond reasonable doubt. Therefore, this appeal is accepted, conviction and 'sentence of the appellants recorded through the impugned judgment is set aside and" the appellants are acquitted of the charge. They shall be released forthwith if not required in any other case.