' IJAZ AHMAD CHAUDHRY, J.- Allah Ditta and Muhammad Iqbal appellants were convicted under section 302/34, P.P.C. Vide judgment dated 13-9-2001 rendered by the learned Additional Sessions Judge, Pakpattan Sharif and were sentenced to death for committing Qatl-i-Amd of Muhammad Ramzan deceased with direction to pay a sum of Rs,50,000 each to the heirs of the above said deceased by way of compensation under section .544-A, Cr.P.C. Or in default of payment thereof to undergo six months' S.I. Each. Both of them were also convicted under section 201/34, P.P.C. For concealing the dead body of the deceased in a ditch and were sentenced to 5 years R.I. Each with direction for payment of Rs,5,000 each as fine or in default of payment thereof to undergo three months S.I. Muhammad Iqbal appellant was further convicted under section 364, P.P.C. For kidnapping/ abducting Muhammad Ramzan deceased with the intention to commit his murder and was sentenced to seven years R.I. With direction for payment of Rs,5,000 as fine or in default of payment thereof to further undergo three months' S.I. However, .Through the same judgment, . Co- accused namely, Muhammad Hanif and Afzaal were acquitted of the charge by the learned trial Court by extending benefit of doubt to them., Allah Ditta and Muhammad Iqbal appellants have challenged their conviction and sentence through Criminal Appeal No,709-J of 2001 which has been heard by us along with Murder Reference No,639 of 2001, sent by the learned trial, Court under section 374, Cr.P.C. Seeking confirmation of the sentence of death passed by the learned trial Court against Allah Ditta and Muhammad Iqhal. We propose to decide both these matters together through the present consolidated judgment.
2. Succinctly the facts of the prosecution's case setup in the F.I.R. (Exh.C.W.-3/A) got lodged by Muhammad Siddique complainant (P.W.l) are that Muhammad Iqbal appellant had borrowed Rs, 10,000 from Muhammad Ramzan deceased son of the complainant about four months ago with the promise to return the same after his marriage. The said amount was demanded after the stipulated period by Muhammad Ramzan deceased, but Muhammad Iqbal appellant postponed the matter on the one pretext or the other. On 25-12-1998 an alteration hhd taken place between Muhammad Ramzan deceased and Muhammad Iqbal appellant over the payment of this amount, when Muhammad Iqbal appellant promised to pay the same on the next day. On 26-12-1998, after 'Maghrab' prayer, Muhammad Iqbal appellant called out his son Muhammad Ramzan deceased with the offer to pay him the amount of loan. Muhammad Ramzan deceased went with Muhammad Iqbal appellant in order to receive his money. At the time of his departure he had sum of Rs,28,000 in his pocket. When after passing 1 1/2 hours said Muhammad Ramzan did not return, the complainant sent Shaukat son of Sikandar (P.W.2) to know the whereabouts of Muhammad Ramzan deceased, who after return informed the complainant that Muhammad Siddique father of Iqbal appellant had told him that Muhammad Ramzan deceased had gone back home. According to the complainant after further elapse of a period of 1 1/2 hours, he along with Shaukat Ali (P.W.2) again went to Muhammad Iqbal appellant and asked about the deceased when Muhammad Iqbal appellant replied in angry mood that Muhammad Ramzan was not with him. They searched the deceased, but could not find him. At the time of departure 'of Muhammad Ramzan with Muhammad Iqbal appellant, the deceased was wearing Shalwar Qamiz of light blue 'SurmaiV colour and softy sleeper. Next morning Bashir Ahmad (not produced) and Muhammad Tufail (P.W.3) told the complainant that Hanif, Afzaal (acquitted accused), Iqbal and Allah Ditta appellants were seen taking in their company Muhammad Ramzan deceased towards Qadirpur Munshian and on their inquiry they told that they were going for some piece of work. Till that day the complainant had been inquiring about his son through 'Panchayat' but the accused person had been putting off the matter. The complainant suspected that the accused might have murdered his son.
3. The investigation of this case was conducted by Ghulam Murtaza, A.S.-I., (C.W.l), Muhammad Ali, Inspector (C.W.2) and Shahid Anwar, S.-I. (C.W.3) and during the investigation, Allah Ditta appellant was arrested on 17-2-1999 by C.W.3, who got recovered the dead body of Muhammad Ramzan deceased after digging out a trench in a garden near Mozah Ghulam Farid Maleka in the area of Police Station Sadar Pakpattan which was identified the witnesses; the site-plan of the place of recovery was prepared; the dead body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received on 1-3-1999; Allah Ditta appellant got recovered Soti (P.4) and Gandala (P.5), which were taken into possession vide recovery memo. (Exh.PD); a formal site-plan of the place of occurrence was got prepared, after the usual investigatidfo only Allah Ditta was found guilty while the others, namely, Muhammad Afzaal, Hanif (acquitted accused) and Muhammad Iqbal appellant were declared innocent. The complainant being dissatisfied with the investigation filed the private complaint against all the four accused while reiterating the story narrated in the F.I.R. With the addition that "on the third day of lodging the F.I.R., dated 16-2-1998, Muhammad Sharif and Ahmed Ali P.Ws. Told him that on 14-2-1998 at about 10-00 a.m. Muhammad Iqbal accused went to the house of Muhammad Sharif P.W., where Ahmed Ali P.W. Was also present. Said Muhammad Iqbal accused made extra-judicial confession that he along with Muhammad Hanif, Allah Ditta and Afzaal accused had abducted Muhammad Ramzan deceased from his house on 26-12-1998 after "Aftari Waila" and took him in the fruit garden of Ghulam Muhammad Maleka, where Muhammad Iqbal wrapped a cloth like Safa around his neck, Allah Ditta accused caught hold the deceased from arms, whereas Hanif and Afzaal accused caught hold from his legs and meanwhile, Muhammad Iqbal by way of tightening the Safa strangulated Muhammad Ramzan deceased and after that they buried his dead body in a ditch. He also told that they had thrown into an abandoned well softy sleeper of the deceased. According to the P.Ws. Iqbal accused made request for getting the matter compromised with the complainant and offered to compensate him regarding the expenditure etc. According to the complainant, the above said P.Ws. Asked Muhammad Iqbal accused to come after three days, so that they should negotiate the matter with the complainant meanwhile. On the third of making confession at about 4-00 p.m. Allah Ditta accused went to the house of Muhammad Sharif and also confessed his guilt in the presence of Ahmed Ali P.W. Complainant also mentioned in Exh.PE that both the above said P.Ws. Told him the whole story, then he took them to the police and narrated this incident of making confession by the accused person, but the police did not pay heed. It was further claimed in Exh.PE that on 17-2-1999 Allah Ditta accused while in police custody in the presence of Zafar Iqbal and Shaukat Ali P.Ws. Led to the police and pointed out the place of burial of dead body of Muhammad Ramzan deceased.
He got recovered dead body from a ditch in the garden of Ghulam Muhammad Maleka in Killa No,8 of Square No,34. It was further mentioned that on 1-3-1999 Allah Ditta accused while in custody led to the recovery of gandala and softy sleeper of Muhammad Ramzan deceased from an abandoned well.
4. After recording the preliminary evidence of the complainant and conducting the usual inquiry all the four accused nominated in the private complaint were summoned to face the trial.
5. At the commencement of the trial the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellants and the co-accused framed a charge under sections 302/364/201/34, P.P.C. Against them to which they pleaded not guilty and claimed a trial.
6. During the trial the complainant produced as many as eight witnesses in support of its case. The last seen evidence was furnished by Muhammad Siddique complainant (P.W.l) and Shaukat Ali (P.W.2) who also deposed about the recovery of the dead body on the pointing out of Allah Ditta appellant. Muhammad Tufail (P.W.3) was a witness of Wajtakkar while the evidence of extra- judicial confession was provided by Muhammad Sharif (P.W.4) and Ahmad Ali (P.W.5). The medical evidence was furnished by Dr. Muhammad Younis Rana (P.W. 8) who on 17-2-1999 had conducted the post-mortem examination on the dead body of the deceased. Ghulam Murtaza, A.S.-I. (C.W.l), Muhammad Ali, Inspector (C.W.2) and Shahid Anwar, S.-I. (C.W.3) stated about the various steps taken by them during the investigation of. This case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under section 342, Cr.P.C., the appellants and coaccused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "Why this case against you and why the P.Ws. Have deposed against you?" Muhammad Iqbal appellant replied as under:- ' "I have been involved in this case due to suspicion, enmity and party faction. I never made any extrajudicial confession before any P.W. Nor got recovered the dead body of Muhammad Ramzan deceased. Nothing was recovered by me during the investigation of this case. All the P.Ws. Are related inter se as well as with the deceased. They have falsely deposed against me. I was declared innocent in successive investigations conducted by different investigating officers."
' In reply to the above said question, Allah Ditta appellant made the following reply: ~ ' "I have been involved in this case due to suspicion enmity and party faction. I never made any ektn- judicial confession before any P.W. Nor got recovered the dead body of Muhammad Ramzan deceased. Nothing .Was recovered by me during investigation of this case. The police has planted false recoveries of Softy P.4 and Gandala P.5, which were produced by the complainant to the police even prior to the registration of this case. All the P.Ws. Are related inter se as well as with the deceased. They have falsely deposed against me. The police falsely involved and challaned me in this case in collusion with the complainant parties."
' However, the appellants and their co-accused had not opted to make statements on oath under section 340(2'). Cr.P.C. Or they produced any witness in their defence.
8. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellants to have been proved beyond reasdnable doubt convicted and sentenced them as mentioned and detailed above while the two co- accused namely Muhammad Hanif and Afzaal were acquitted. Hence, the appeal filed by the appellants against their conviction and sentence and the connected Murder Reference before this Court.
9. The learned counsel for the appellants contends that the eye-witnesses. Were interested witnesses being related inter se and with the deceased closely; that they had not witnessed the incident and they were not present at the spot at the time of occurrence; that there are contradictions in the statements of the P.Ws.; that acquittal of the co-accused of the appellants by the learned trial Court had created a serious dent in the prosecution's case towards the involvement of the appellants as well; that the appellants had no occasion to make extra-judicial evidence, which was a created evidence to falsely enrope the appellants in this case; that false recoveries had been planted upon Allah Ditta appellant and the witnesses thereof were. Not trustworthy; that it was a case of circumstantial evidence, but the prosecution witnesses failed to link the appellants with the commission of the crime; that the F.I.R. Had been registered with the delay of more than one month and 21 days without any explanation; hence, the prosecution had not succeeded in proving the case against both the appellants as well beyond any shadow of doubt and the appeal filed by the appellant may be accepted.
10. On the contrary, learned counsel for the State have maintained in unison that the complainant has succeeded in proving the case against the appellants beyond any shadow of doubt through the evidence of last seen, Wajtakkar extra-judicial confession, recovery of dead body and the other articles on the pointing out of Allah Ditta appellant; that the P.Ws. Had no motive or enmity to enrope the appellants in the present case that the appellants had acted in a preplanned murder and the death sentence awarded to them by the learned trial Court may be maintained.
11. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
12. According to the complainant on 25-12-1998 his son Muhammad Ramzan had been taken away from his place of residence by Muhammad Iqbal appellant but when he did not return the complainant along with Shaukat Ali (P.W.2). Went to search for him but he was not traced and on the next morning two witnesses namely Muhammad Tufail (P.W.3) and Bashir (not produced) told him that they had seen the deceased in the company of the appellants and the acquitted accused on the night. However, the whereabouts of the deceased could not be traced whereupon the case was got registered for his abduction. Then the dead body was recovered on the pointation of Allah Ditta appellant, who was only challaned by the police. The complainant filed the private complaint and introduced the story of extra-judicial confession made by both the appellants. The present case is based on circumstantial evidence only. The deceased was found missing since 26-12-1998 and he was not traceable. The complainant also came to know about taking of him by the four accused for some ulterior motive, but surprisingly he did not approach the police immediately for reporting the matter. No independent person was produced to substantiate the version of the complainant that from the very first day after the missing of the deceased, the complainant had been approaching the accused person for his return. It creates serious doubt in the version of the complainant that he remained silent for a period of more than one month and 21 days after missing of his deceased son when he was aware of the fact that some foul had been played with him by Muhammad Iqbal appellant with the help of other accused as there was dispute of money between the deceased and Muhammad Iqbal appellant. Moreover, the deceased was having Rs,28,000 at the time of leaving the house with Muhammad Iqbal appellant and when the accused were approached, they had shown ignorance about the whereabouts of the deceased, rather they stated that he had gone back home. So the registration of the F.I.R. In the present case with the delay of one month and- 21 days casts serious doubt about the complainant's version and no importance can be given to the F.I.R. That the names of the witnesses and the accused had been mentioned therein. Even otherwise on the same evidence two accused have been acquitted which has caused a serious dent in the prosecution version.
13. To prove the last seen evidence the prosecution had produced Muhammad Siddique (P.W.l) and Shaukat Ali (P.W.2). Both these witnesses stated that on 28-12-1998 the deceased had been taken away by Muhammad Iqbal appellant from the house of the complainant. It was also claimed that an amount of Rs,28,000 was in the pocket of the deceased when he had left the house but Muhammad Siddique complainant (P.W.l) did not report the D matter immediately to the police. Shaukat Ali son of Sikandar (P.W.2) was resident of Chak No,38-D, Tehsil Depalput District Okara which was at a distance of about 15 miles from the residence of Muhammad Siddique complainant (P.W.l). He did not disclose any specific reason for his presence , in the house of Muhammad Siddique complainant (P.W.l) at the time of taking away of the deceased by Muhammad Iqbal appellant with him. He was also brother of wife of Muhammad Siddique complainant (P.W.l) and his presence there at the time of taking away of the deceased was per chance: The conduct of both the witnesses also shown that they had not seen Muhammad Iqbal appellant while taking away the deceased as they kept silent for a long period. Though they made efforts, to search the deceased on the same night and on the next day Muhammad Tufail (P.W.3) and Bashir also informed them that they had seen the deceased in the company of the appellants and their acquitted accused yet even then they did not approach the police and did not make any effort for tracing out of the deceased after the first night of his missing. Muhammad Tufail (P.W.3), the witnesses of Wajtakkar was also sister's son of the complainant and was resident of Mosawal. He along with Bashir (given up P.W.) during the night time had seen the deceased near Qadirpur Manccha in village Ghulam Farid. Muhammad Tufail (P.W.3) was resident of Mosawal while Bashir P.W. (not produced) was resident of Chak Khagga and both these witnesses were not natural witnesses, but their presence at the spot where they had seen the deceased in the company of the appellants and their acquitted accused during night time was per chance. It has been admitted by the witnesses that Chak Khagga was about 20 miles away from the place of Wajtakkar. In such circumstances how Muhammad Tufail (P.W.3) and Bashir Ahmad (not produced) had jointly seen the deceased in the company of the accused is not believable.
Moreover, no time had been mentioned in the F.I.R. When these witnesses had seen the deceased and they also failed to narrate that as to which side they were proceeding. Even otherwise, Shahid Anwar, S.-I. (C.W.3), who had investigated the case during the cross- examination conceded that the complainant earlier moved an application to the S.S.P., which was further marked to the police station and was available on the police file. The complainant also did not deny the submission of the application to the S.S.P. During the cross-examination on C.W.3, the defence fully able to prove that narration of the complainant about the occurrence in the said application was entirely .Different than -the allegation levelled in the F.I.R. The names of P.Ws. 2 and 3 were not mentioned in the said application. In such circumstances, it seems that the evidence of Wajtakkar produced in the shape of Muhammad Tufail (P.W.3) and Bashir Ahmad (not produced) t was created one. The conduct of-the witnesses also dissatisfies this Court that they had seen the deceased in the company of the accused. Moreover, nothing had been recovered from any of the accused including the money, which was being carried by the deceased at the time of departure with the accused, as alleged by Muhammad Siddique complainant (P.W.l) and Shaukat Ali (P.W.2) that the deceased was in possession of Rs,28,000 at the time of leaving the house. So the last seen evidence cannot be relied upon, which even otherwise is a weak type of evidence and alone is not sufficient to connect the accused with the commission of the crime.
14. To prove the extra-judicial confession the complainant had produced Muhammad Sharif (P.W.4) and Ahmad Ali (P.W.5). Muhammad Sharif (P.W.4) was resident of Chak Khagga Marlay which was at a distance of 50 miles from the place of residence of the complainant. P.W.4 was real brother of the complainant and uncle of the deceased while P.W.5 Ahmad Ali was brother of the wife of the complainant. So both these witnesses were related inter se and with the deceased closely. According to Muhammad Sharif (P.W.4) Muhammad Iqbal appellant had made extra- judicial confession before him about the murder of Muhammad Ramzan but he. Was let off and no efforts were made by them to apprehend Muhammad Iqbal and also to produce him before the police in spite of that he had admitted the murder of their close relative i.e, paternal as well as maternal nephew Muhammad Ramzan. This conduct of the witnesses show that Muhammad Iqbal appellant never appeared before them and they also did not approach the complainant immediately to inform him about the extrajudicial confession made by Muhammad Iqbal appellant, They also claimed that after 3 days of making confession by Muhammad Iqbal appellant, Allah Ditta appellant also appeared before them at Chak Khaggha and made extra- judicial confession, but he was also let off without making any effort for producing him before the police. This time they again did not inform the complainant immediately about he extra-judicial confession made by Allah Ditta appellant as well. So the conduct of the witnesses shows that the story had been concocted regarding making of the extra-judicial confession by the accused before the paternal and maternal uncles of the deceased. Ahmad Ali (P.W.5) stated that they did not inform the complainant immediately as he was busy in his business. This explanation cannot be accepted as Muhammad Ramzan deceased who was his maternal nephew had been murdered by Muhammad Iqbal and Allah Ditta appellants with the help of the other accused and they had made extra-judicial confession but in spite of that this fact was not disclosed by Ahmad Ali (P.W.5) to his real sister whose son was initially abducted and then murdered. Similarly, the deceased was real nephew of Muhammad Sharif (P.W.4) but he also did not inform the complainant about this fact. This-conduct of the witnesses also shows that no such extrajudicial confession was made. According to Muhammad Sharif (P.W.4). Muhammad Iqbal appellant made extra-judicial confession 5/6 days before recording of the F.I.R. While Allah Ditta appellant made extra-judicial confession on the 3rd day after making the extra-judicial confession by Muhammad Iqbal appellant. In such circumstances the extra-judicial confession would be made 2/3 days before registration of the case and Muhammad Sharif (P.W.4) claimed that on the 3rd day after making confession by Muhammad Iqbal appellant before him he informed the complainant about the murder of the deceased. Then why the complainant had got lodged F.I.R. Under section 364, P.P.C. Only instead of registering the same under section 302, P.P.C. While stating that his son had been murdered by the same accused. The extrajudicial confession made before Muhammad Sharif (P.W.4) and Ahmad Ali (P.W.5) is not acceptable as there was no reason to make such confession by the appellants because no case had been registered till then arid they were not apprehending any danger. Both the P.Ws. Were close relatives of the complainant whose son was missing for the last about 1 1/2 months but in spite of having information about his murder they did not immediately approach the complainant for imparting this information was unnatural conduct, which is sufficient to draw an inference that this piece of evidence was also created story.
15. The next piece of evidence was the recovery of dead body of the deceased on the pointing out of Allah Ditta appellant. According to Muhammad Sharif (P.W.4) extra-judicial confession was made by Muhammad Iqbal appellant 5/6 days before the registration of the case and according to the complaint it has been duly mentioned in para. No,3 that before registration of the case Muhammad Iqbal appellant made extra-judicial confession on 14-2-1999 at 11-00 a.m. Before Muhammad -Sharif (P.W.4) and Ahmad Ali (P.W.5) they also confessed that they had buried the dead body in the garden of Ghulam Muhammad and subsequently on 17th the dead body was recovered from the said garden. So it was already in the knowledge of the witnesses that the dead body was buried at a specific place and pointing out the place of recovery of the dead body by Allah Ditta appellant was immaterial which cannot be taken into consideration as corroborative piece of evidence. Similarly the recovery of Soti Gandala and softy .Of the deceased from Allah Ditta appellant is also useless as the said recovery was effected on 1-3-1999 while the dead body had been recovered on 17-2-1999 and these articles also had no specific marks showing the same as belongings of the deceased. On the other hand these articles being of common pattern are easily available in the market and could be easily planted upon them. As such the recovery evidence was legally j inconsequential and immaterial to the prosecution case.
16. For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove the case against the appellants beyond any shadow of doubt. Hence, Criminal Appeal No,709-J of 2001 is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned trial Court against Allah Ditta and Muhammad Iqbal appellants is set aside and they are acquitted of the charge by extending them the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case.
17. Murder Reference .No,639 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Allah Ditta and Muhammad Iqbal appellants is not confirmed.