' M.A. SHAHID SIDDQIUI, J.---Muhammad Arif alias Mahi, appellant along with five others was tried by a learned Additional Sessions Judge at Faisalabad on a Private Complaint No,20/7 of 2000 filed by Ghulam Haider for the murder of his son Muhammad Akram. The appellant and one Muhammad Hanif were convicted and sentenced to death; They were also directed to pay Rs,15,000 each as compensation to the legal heirs of the deceased vide judgment dated 22-12-2001. During the pendency of Criminal Appeal No,80-J of 2002 the legal heirs of Muhammad Akram, deceased pardoned Muhammad Hanif. Accordingly he was acquitted by this Court on the basis of compromise vide judgment dated 27-6-2005.
2. The incident was reported by Ghulam Haider, complainant/P.W.1 vide F.I.R. No,180 of 1998 dated 27-4-1998 registered at Police Station Lundianwala, District Faisalabad. The F.I.R. (Exh.C.W.- 9/B) was based on the statement (Fard Bian) Exh.C.W.-9/A of Ghulam Haider recorded by Zafar Abbas, S.I./C.W.11 at Adda Lundianwala at 9-30 a.m. According to the F.I.R. Muhammad Akram aged 25/26 years a truck driver by profession returned to his house on 26-4-1998 at Dopaher Wela. In the evening he went out but did not return to his house upto 9/10-00 p.m. Ghulam Haider, complainant/P.W.1 set out in search of his son in village but failed to get any clue. On the next morning he was working as a labourer in the land of Muhammad Akram Havaldar who was getting a tubewell installed in his field. There he came to know that a dead body was found lying in the sugarcan field of Malik Muhammad Munir Ahmed. The complainant along with Muhammad Zaman and Abdul Rehman P.Ws. Rushed to the spot and found that it was the dead body of his son Muhammad Akram who had been murdered by some unknown persons on the previous night with sharp edged weapon. It was an unseen occurrence. Ghulam Haider, complainant met Zafar Abbas, S.I. At Adda Lundianwala who recorded his statement Exh.C.W.9/A.
3. Zafar Abbas, S.I./C.W.11 inspected the spot, sent the dead body for post-mortem examination and recorded the statements of the P.Ws. During investigation of the case. He had found Muhammad Arif alias Mahi, appellant and Muhammad Hanif responsible for the murder of Muhammad Akram.
According the challan was submitted. Ghulam Haider, complainant/P.W.1 felt dissatisfied with the result of the investigation and filed Private Complaint No,20/7 of 2000. The learned trial Court on the basis of the material collected by it and the material appended with the challan formally charge- sheeted Muhammad Arif alias Mahi, appellant and four others namely Muhammad Hanif, Abu Bakar, Nadeem, Shakeel and Bashir, co-accused. They pleaded not guilty and claimed trial. The complainant produced four witnesses in support of his case. The learned trial Court examined 12 other witnesses as C.W.1 to C.W.12 on the basis of the report made by the S.H.O. Under section 173, Cr.P.C. Ghulam Haider, P.W.1, deposed that about three and half years ago, he, his wife Mst. Surraya Bibi and Muhammad Akram, deceased were present in their house when Abu Bakar and Nadeem co-accused came there and took Muhammad Akram away saying that they had arranged for the money. After some time Mst. Surraya Bibi/P.W.2 went to Bazar where she saw her son Muhammad Akram going in the company of Muhammad Nadeem and Bashir towards Lundianwala Bungalwo, Ghulam Haider further stated that Muhammad Akram did not return to his house uptil 8/9-00 p.m.
On the next morning he found the dead body of, his son lying in the field of Malik Muhammad Munir Ahmed. He further stated that Muhammad Arif, appellant and Muhammad Hanif co-accused went to the house of Manzoor (given up P.W.) on the next day where they confessed in the presence of Ghulam Abbas that they had committed murde>< of Muhammad Akram and that they were six in number. All the seven accused again went to the house of Abbas P.W. And narrated the same story in the presence of Faiz Ahmed, P.W.4. Mst. Surraya Bibi while supporting her husband deposed that her son Muhammad Akram was taken away from her house by Abu Bakar and Nadeem co- accused and that she had also saw her son Muhammad Akram, deceased going in Tonga towards Lundianwala Bungalow in the company of Abu Bakar Nadeem, Shakeel, Bashir, Arif (appellant) and Muhammad Hanif. She alleged that the police had arrested all the six accused and effected recoveries from them but only two accused Arif and Hanif were challaned. Ghulam Abbas/P.W.3 stated that on 28-4-1998 Muhammad Arif alias Mahi and Muhammad Hanif accused came to the house of Manzoor, P.W. At 9-00 a.m. In his presence and stated that they both along with Abu Bakar, Nadeem, Shakeel and Bashir had committed the murder of Muhammad Akram and asked Manzoor P.W. For compromise with the complainant. He further stated that on the next day Abu Bakar, Nadeem, Shakeel, Hanif, Arif and Bashir accused came to his house at about 7-00 p.m. In the presence of Malik Faiz, P.W.4. Abu Bakar accused disclosed that on 26-4-1998 they went to the house of Muhammad Akram and took him to the field of Malik Muhammad Munir where they inflicted Chhuri blows to Muhammad Akram and killed him. He further stated that Hanif accused was also with Abu Bakar when they called Muhammad Akram from his house. Faiz Muhammad/P.W.4 also stated about the extra-judicial confession made by all the six accused in the house of Ghulam Abbas, P.W.3. His statement is also in line with the statement of Ghulam Abbas, P.W.3 and Ghulam Haider, complainant/P.W.1.
4. Dr. Pervez Akhtar/C.W.8 who had conducted autopsy on the dead body of Muhammad Akram on 27-4-1998 provided medical evidence. While testifying his report Exh.C.W.-8/A, he gave description of as many as 50 injuries which he had found on the dead body of Muhammad Akram. He opined that Injuries Nos.9 to 12, 14 to 18, 23 to 38 and 40 to 45 were fatal and collectively sufficient to cause death in ordinary course of nature. These injuries were ante mortem and caused by sharp-edged weapon. He further opined that the time that elapsed between' injuries and death was immediate while the time that elapsed between death and post-mortem examination was within twenty hours.
5. There is also evidence of recovery of Churries furnished by Muhammad Afzal, Constable No,3743/C.W.7. The statement of this witness is to the effect that on 14-6-1998 Muhammad Arif and Hanif accused led Zafar Abbas, S.-I./I.O. To their houses and got recovered Churries which were secured vide recovery memos. Exh.C.W.7/A and Exh.C.W.7/B. As per reports of the Chemical Examiner Exh.PC, Exh.PD and that of Serologist Exh.PE and Exh.PF both these chhurries were bloodstained with human blood. Zafar Abbas, S.I./C.W.11 stated about the various steps which he took during investigation of the case. He disclosed that he had recorded the statements of Ghulam Abbas and. Manzoor Ahmed P.Ws. Under sections 161, Cr.P.C. Relating to the extra-judicial confesion on 29-4-1998. He further stated that he had arrested Muhammad Arif and Hanif accused on 9-6- 1998 and during investigation of the case both the accused got recovered Chhurries on 14-6-1998 from their houses. He denied the suggestion given by the learned counsel for the complainant that the complainant had nominated all the six accused namely Muhammad Hanif, Muhammad Arif, Abu Bakar, Nadeem, Shakeel and Bashir on the first day in his statement and that he did not mention the names of the accused in connivance with the accused party in Exh.C.W.9/A. He also denied the suggestion that the complainant had produced before him P.Ws. Manzoor Ahmed, Ghulam Abbas and Faiz Ahmed before whom all the six accused had made extra-judicial confession. He also denied the suggestion that he had not recorded the statements of Ghulam Abbas and Manzoor P.Ws. Correctly and had incorporated in their statements only the names of Hanif and Arif accused. The appellant in their statement under section 342, Cr.P.C. Denied the allegation. He pleaded that Muhammad Akram, deceased was a man of bad character and was involved in a criminal case and that he was murdered by some unknown culprits. He claimed to be the minor at the time of alleged occurrence and produced his school leaving certificate Exh.DF in which his date of birth was recorded as 6-4-1985. He did not produce any evidence in his defence.
The learned trial Court after taking into consideration the entire material brought on the record held the prosecution case against Muhammad Arif (appellant) and Muhammad Hanif (since acquitted on the basis of compromise) to have been proved beyond any reasonable doubt.
Accordingly they were convicted and sentenced as mentioned in the opening paragraph of this judgment.
6. Learned counsel for the appellant while assailing the conviction and sentence inter alia argued that there is no direct evidence to connect the appellant with the occurrence; that the evidence of extrajudicial confession before Ghulam Abbas/ P.W.3 and Faiz Ahmed/P.W.4 has been disproved to the extent of Abu Bakar, Nadeem, Shakeel and Bashir co-accused by the learned trial Court as such it could not be made basis for convicting the appellant; that both these witnesses are admittedly related to the deceased and their statements are not corroborated by any other independent piece of evidence; that the recoveries of Chhurries had been made from the houses of the accused which are situated in a thickly-populated area but no independent witness was associated with the recovery proceedings; that these recoveries were made after one and half months of the occurrence as such the reports of the Chemical Examiner and that of Serologist appear to have been procured and that the prosecution has failed to prove its case against the appellant beyond any doubt. The learned Deputy Prosecutor-General appearing on behalf of the State supported the judgment of the trial Court.
7. We have made reappraisal of the prosecution evidence in the light of arguments advanced by the learned counsel for the parties. Admittedly the occurrence was unwitnessed. The dead body was first recovered and the matter was reported to the police immediately after the discovery of the dead body. The evidence of last seen has been furnished by Ghulam Haider/ P.W.1 and Mst.
Surraya Bibi/P.W.2 the father and mother of Muhammad Akram, deceased. Zafar Abbas, S.I./C.W.11 who recorded the F.I.R. (Exh. C .W .9/B) immediately after the occurrence has denied the suggestion given by the complainant counsel that he had not mentioned the names of the accused in the F.I.R.
Collusively. It can be gathered from the time between death and post-mortem examination that the matter was reported to the police by Ghulam Haider, complainant/P.W.1 without any delay. The Investigating Officer had no time to connive with the accused so the suggestion given by the complainant counsel appears to be dishonest. Had these two witnesses seen Muhammad Akram, deceased leaving his house in the company of Abu Bakar and Nadeem accused (since acquitted) and had Mst. Surraya Bibi/P.W.2 seen her son Muhammad Akram going in a Tonga towards Lundianwala Bungalow in the company of all these accused she would have certainly narrated this incident to her husband on the same evening and would have certainly disclosed the same in her statement Exh.C.W.9/B. This dishonest improvement is sufficient to discard the testimony of both these witnesses.
8. The order piece of evidence relates to the extra-judicial confession made' by the accused on two different occasions and at two different places. Ghulam Abbas/P.W.3 was present on both these occasions. According to him he was present in the house of his cousin Manzoor on 28-4-1998 when Hanif and Arif accused stated that they both along with Abu Bakar, Nadeem, Shakeel and Bashir had committed murder of Muhammad Akram. Manzoor has not entered into witness-box to support Ghulam Abbas/P.W.3. Ghulam Abbas/P.W.3 as per admission made by Ghulam Haider, complainant is the maternal uncle (Mamoo) of the deceased. Faiz. Muhammad/P.W.4 is another witness in whose house all the six accused admitted to have murdered Muhammad Akram in the presence of Ghulam Abbas/P.W.3. He is also admittedly related to the complainant. The statements of both these witnesses have B been disproved qua the remaining four accused. Their statements are also not corroborated by any other evidence as such we find no distinguishing feature to accept their testimony qua the appellant as well. The last piece of evidence on which the prosecution has relied upon is the recovery of two Churries made by the Investigating Officer on 14-6-1998 i.e, almost one month and sixteen days after the occurrence. Except a police constable Muhammad Afzal/C.W.7 no other person from the locality was associated during the recovery proceedings. During his cross-examination it transpired that he had not stated in his statement under section 161, Cr.P.C. That these Chhurries were blood-stained. Even otherwise the delay in the recovery of the Chhurries was bound to a result of disintegration of the blood, therefore, the report of the Chemical Examiner and that of Serologist are of no consequence. Both these recoveries are held to be inconsequential.
9. As a sequel to the discussion made above, we are of the considered, view that the prosecution has failed to prove its case against the appellant beyond any doubt. Thus the conviction and sentence cannot be sustained. We allow Criminal Appeal C No,79-J of 2002 and set aside the impugned judgment. The appellant stands acquitted. He shall be set at liberty forthwith if not required in any other case. Murder Reference No,17 of 2002 is answered in the negative.