' MUHAMMAD FARRUKH MAHMUD, J.-This judgment will dispose of Criminal Appeal No. 1987 of 2001 filed by Muhammad Asif, Muhammad Arif and Ashiq-appellants, who, along with Muhammad Shakeel, faced trial in case F.I.R. No.718, registered at Police Station Pasrur, District Sialkot, on 10-12- 1999, for offences under sections 302/364/201, P.P.C., before learned Additional Sessions Judge, Pasrur, who after concluding the trial, vide his judgment dated 14-12-2001, while acquitting Muhammad Shakeel convicted and 'sentenced the appellants as under: -
(1) Muhammad Asif Under section 302, P.P.C.
' Death with compensation of Rs.50,000 or in default six months' S.I.
' Under section 201, P.P.C.
' Five years' R.I.With fine of Rs.20,000 or in default one year's R.I.
(2) Muhammad Arif and Muhammad Ashiq ' Under section 302, P.P.C.
' Imprisonment for life each with compensation of Rs. 50,000 each.
' Under section 201, P.P.C.
' Five years'. R.I. With fine of Rs.20,000 each or in default one year's S.I. Each.
' Both of them were also given the benefit of section 382-B, Cr.P.C.
2. Murder Reference No.316 of 2002 for confirmation or otherwise of death sentence awarded to Muhammad Asif-appellant and Criminal Revision No.920 of 2002 filed by Iftikhar Ahmad- complainant seeking enhancement of sentences of the respondents therein, shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.PA recorded on the statement of Iftikhar Ahmad, brother of the deceased/complainant (P.W.2), according to his verbatim statement, are that "he works as a tailor in his village. They are three brothers. - His elder brother Shahid Mehmood was a labourer. Muhammad Asif son of Nazir Ahmad resident of village Ballotola used to work with his brother in Textile Mills at Faisalabad. For that reason there was friendship between them and they used to visit the. House of each other. Thereafter both of them left their job from the Mills and his brother used to do Zamindara in the'house. In the meanwhile, Muhammad Asif along with maternal uncle Akbar came to his village and purchased a buffalo worth Rs.l 1,500 from his brother Shahid Mehmood on credit. About three months before Muhammad Asif came to his house early in the morning and asked his brother Shahid Mehmood to accompany him whereupon his brother went along, with Muhammad Asif. After about one month Muhammad Asif along with Shakeel son of Muhammad Wakeel resident of the same village came to their house. Asif who had worn Clothes of his brother said that he has got employed his brother before a Maim for Rs.4,000 per month. He and Shahid Mehmood are doing business of buffaloes and Shakeel also corroborated this fact.
Shakeel also showed him identity card of his brother and both of them said to him that his brother Shahid Mehmood has taken Rs.20,000 from them at Lahore for doing business of buffaloes and they had come to take this amount. They further said that if he has no money he should give them buffalo but he did not hand over them money due to suspicion. This fact was also " told by them to his father. He and his father asked them as to why Shahid Mehmood has not come to the house for a long period who replied that he was not given leave from his duty and asked him to accompany them and they would leave him with Shahid Mehmood who would came to see his family members. In this connection he along with his friend Shahid Mehmood resident of the village went to the house of Asif who on seeing his friend expressed angriness' and asked him that he should have come alone and sent him to his house whereupon he along with his companion came back.
When his brother did not return back for three months, they became perplexed. Today i.e. On 9-12- 1999 he along with his father and respectables of the village convened a Punchayat and went to village Ballotola. Muhammad Asif son of Aman Ullah, Allah Rakha son of Sobay Khan, his maternal uncle Muhammad Boota and other respectables of the village joined Punchayat. Muhammad Asif and his parents requested to give them some time but they insisted that time has passed and Asif should be asked about the whereabouts of Shahid Mehmood. Thereupon Asif accused disclosed before the Punchyat that he has buried Shahid Mehmood in the sugarcane field belonging to Nazir Ahmad, Lumbardar, at village Ballotola after strangulation. They inquired from him as who was joined him in the occurrence but he avoided. However, Asif pointed out them the sugarcane field where the dead body was buried. The dead body had be-en eaten by the animals from the grave type pit and skeleton and bones were lying in the pit. He had identified the dead body of the brother from his Shalwar, shirt, watch and shoes."
4. The motive behind the occurrence as set down in the F.I.R. Was that Muhammad Asif accused wanted to usurp the amount of buffalo, which he had purchased on credit and he also intended to commit other frauds.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Suleman, SI/P.W.10. He proceeded to the place of occurrence, took over the dead body (bones) and prepared inquest report Exh.PF. On 10-12-1999 he arrested Muhammad Asif-accused, who while in custody on 17-12-1999 led to the recovery of Kassi P-6. On 16-12-1999 he arrested Shakeel, who led to the recovery of purse P-8 belonging to the deceased and a photocopy of identity card of the deceased, which were taken into possession vide memo. Exh.PC. On 23-12-1999 after recording the statements of Khan Muhammad and Muhammad Arshad P.Ws., the Investigating Officer arrested Arif and Ashiq on 27-12-1999.' All the accused persons pointed out the place of occurrence and the place where the dead body was buried. Arif led to the recovery of Kassi from a room of his house, which was used by him in digging the pit. Ashiq also led to the recovery of spare clothes of the deceased i.e. Shirt P-9 and Shalwar P-10 from his house. All the articles were taken into possession vide memo. Exh.PE. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in' evidence the report of Chemical Examiner Exh.PM closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication.
They did not appear as witnesses under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court, while acquitting Muhammad Shakeel, convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellants after having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal have contended that it was an unwitnessed occurrence; that the matter was reported to the police after an unexplained delay of three months; that all the witnesses regarding extra-judicial confession have made contradictory statements; that in fact dead body consisted few bones, which could not be identified; that the doctor did not mention that clothes found .Near the bones were stained with mud, blood or torn; that according to Investigating Officer the recovered clothes were in very good shape; that there is no explanation as to why after extra-judicial confession the matter was not reported to the police; that the Investigating Officer could not tell the names of the participants of Punchayat held in village Ballotola; that the recoveries in this case were totally of no consequence, as they were of ordinary metal and had no special mark; that as far as evidence of pointing out of the place of occurrence is concerned, the same was inadmissible in evidence and thus cannot be considered; and that as far as the extra-judicial confession of Arif and Ashiq is concerned, only one witness Muhammad Arshad was produced, who had overheard the confession, which was made before Jan Muhammad.
8. On the other hand, the learned Additional Prosecutor General submits that the prosecution case rests on well net circumstantial evidence; that the evidence of last seen is available against the appellants; that independent witnesses have stated about the confession made by the appellants before them; thaf the P.Ws. Had no previous enmity or ill will against the appellants so as to involve them in a false case; that the .Identification of the dead body was possible because shirt, shoe and trousers worn by the deceased along with watch were recovered at the time of recovery of bones; that after their arrest the appellants led to the recovery of incriminating articles; and that the P.Ws.2 and 6 are not related to the deceased. He supports the judgment passed by the learned trial Court.
9. The learned counsel appearing on behalf of the complainant adopts the arguments advanced by the learned Additional Prosecutor General.
10. We have heard the learned counsel for the parties at length and scanned the entire record minutely. Undeniably it was an unwitnessed occurrence and the prosecution case rests upon the circumstantial evidence. According to F.I.R., Shahid Mehmood-deceased and Muhammad Asif- appellant used to ,work together in Textile Mill, Faisalabad, and were friends. After some time both of them left their ,jobs in the Mill and Shahid Mehmood returned to his house, where he used to help in cultivation. Muhammad Asif-appellant, who resided at village namely Ballotola along with his maternal uncle Akbar, who was resident of village Galotian, went to the house of the complainant and purchased a buffalo worth Rs.11,500 on credit. Three months prior to the registration of case Muhammad Asif went to the house of the complainant and promised him a good job at Lahore, so the deceased accompanied Muhammad Asif. After a month Muhammad Asif along with Shakeel (acquitted co-accused) went to the house of the complainant, at that time Muhammad Asif was wearing the clothes of Shahid Mehmood-deceased. The complainant was informed that Shahid Mehmood was serving a foreign lady for Rs.4,000 per month. Muhammad Asif further stated that he and Shahid Mehmood had a business of selling and buying buffaloes. Shakeel endorsed the statement of Asif and showed identity card of Shahid Mehmood to the complainant. Both the accused asked for Rs.20,000 for business of buffaloes. They further stated that in case the complainant was not prepared to part with his money he should hand over some buffaloes to them. The complainant refused to oblige them and got worried. He inquired about his brother Shahid Mehmood but no satisfactory reply was given to the complainant, who was informed that Shahid Mehmood did not visit his house because he was not granted leave. Thereafter the complainant along with his friend, whose name was also Shahid went to the house of Asif. The latter got angry over coming of complainant to his house along with a stranger. As Shahid had not visited his house for three months on 9-12-1999 the complainant along with his father, Muhammad Asif son of Aman Ullah, Allah Rakha son of Sobay Khan, Muhammad Boota and other notables of the locality formulated a Punchayat and went to village Ballotola. Muhammad Asif his parents and respectables of the village were summoned. After some reluctance Muhammad Asif disclosed before the Punchayat that he had strangulated Shahid Mehmood to death and he buried his dead body in the sugarcane field belonging to Nazir Ahmad, Lumbardar. Asif did not disclose the name of his companions. However, he led the participants of the Punchayat to the sugarcane field where he pointed out a grave like pit. The complainant and P.Ws. Saw skeleton and bones in the pit and the flesh had been eaten by the animals. The dead body was identified as that of Shahid Mehmood on the basis of trousers, shirt, watch and shoes found along with dead body. Thereafter the matter was reported to the police. According to complainant, the murder was committed by Asif- appellant to devour the amount of buffalo, which was purchased on credit. It was added that Asif intended to commit many frauds.
11. Perusal of F.I.R. Makes it manifest that till three long months the matter was not reported to the police. It was also in B FIR. That after a month of departure of Shahid Mehmood, Asif and Shakeel visited the house of the complainant and at that time Asif was wearing clothes of Shahid Mehmood-deceased. Only a fool would do that and would go to the house of a brother after wearing clothes of his missing brother to invite suspicion. Similarly there was no reason for Shakeel to keep identity card of Shahid Mehmood-deceased in his pocket. At one hand, according to complainant, he was informed that Shahid Mehmood was employed for Rs.4,000 and on the other hand Rs.20,000 or a buffalo was asked by the accused from the complainant for the purpose of business of buffaloes. The complainant did not report the matter to the police for two months after the visit of Asif and Shakeel. No independent evidence is available on record to show that .Asif and Shahid Mehmood were seen together before the death of Shahid Mehmood. The complainant also made dishonest improvements during his statement recorded before the learned trial Court and he was duly confronted with his earlier statement. His intention to involve all the brothers of Muhammad Asif is evident from the fact that in his supplementary statement he implicated Muhammad Arif and Ashiq younger brothers of Muhammad Asif. It is pertinent to note her that no one from village Ballotola was produced to prove that Shahid Mehmood was seen with the appellants before his death. In these circumstances no reliance can be placed on the evidence of Shahid Mehmood having been seen last in the company of Asifappellant .
12. P.Ws. 1, 2 and 3 have stated about the confession made by Asif before the Punchayat, while P.W.6 Jhan Khan stated about the confession of Arif made before E him. All the three witnesses have given different versions. P.W.2 Jhan Khan, whose name was not mentioned in the F.I.R. As member of Punchayat, insisted that he had stated before the police that on 10-12-1999 Punchayat was convened at village Ballotola. He reaffirmed by stating that in his statement recorded by the police on 12-12-1999 he had stated Punchayat was conducted on that day i.e. 10-12-1999. Suffice it to say that according to F.I.R. The Punchayat was convened on 9-12-1999 and not on 10-12-1999.
According to him, Asifappellant was arrested from his house, which is against the statement of the Investigating Officer, who stated that when he reached the spot Asif was standing there. This witness further stated that extrajudicial confession was made in his presence as well as before the police regarding involvement of Ashiq and Arif. This portion of evidence of confession being inadmissible cannot be looked into. According to Asif Ehsan P.W.3, who is Mamoonzad of the complainant, Punchayat was convened in village Ballotola and Asif made confession before the Punchayat. During cross-examination he stated that dead body and other articles belonging to the deceased were recovered at about 4-00 p.m. And the accused made confession at 3-50 p.m. He further stated that on the same day his statement was recorded by the police at 11-00 p.m. His statement about making confession and recovery of dead body is against the statement of rest of the P.Ws. Obviously his statement could not be recorded at 11-00 p.m. As the case was registered at 12-10 a.m. During night on 10-12-1999. He was unable to tell the names of the participants of Punchayat, who were residents of village Ballotola. He was also unable to name the owner of the place where the Punchayat was held. As against the above noted witnesses, the complainant stated that Punchayat convened from Degarwela to 12-00 a.m. At night. Most importantly, according to F.I.R., Allah Rakha son of Sobay Khan was one of the persons who accompanied the complainant as member of the Punchayat. The statement of Allah Rakha was recorded by the learned trial Court. He did not state a word about Punchayat or confession or his accompanying with the complainant. No reliance can be placed on the evidence of extra-judicial confession vis- a-vis Muhammad Asif-appellant.
13. Muhammad Arshad was produced as P.W.6 to prove the confession of Arif before the learned trial Court. According to this P.W., Arif had gone to the shop of Jan Muhammad where he was sitting per chance. On the insistence of Jan Muhammad that Arif should talk with him in the presence of Muhammad Arshad, Arif confessed about the commission of murder by him and his two brothers.
Jan Muhammad, to whose shop Arif had allegedly gone, was not produced. Muhammad Arshad also made dishonest improvements in his statement and was duly confronted with his earlier statement. It is also noteworthy that according to him confession was made on 22-12-1999 while his statement was recorded on 23-12-1999. There is no explanation as to 'why he did not disclose about the confession either to the complainant or to the police soon after it was made. Extra- judicial confession is a very weak type of evidence and can easily be procured through the help of a friend. It was observed by the Apex Court in the case of Sajid Mumtaz and others v. Basharat and others (2006 SCM R 231) that "Extra-judicial confession have almost become a norm when the prosecution cannot otherwise succeed---When the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions." For what has been stated above, in our considered opinion, the evidence of extra-judicial confession was not worthy of any credence.
14. Thee medical evidence hardly supports the prosecution case, as according I to Doctor/P.W.11 the dead body consisted of few bones; no flesh was seen, bones which were present did not show any fracture and hyoid bone was not found. He was unable to give cause of death. He admitted during cross-examination that the dead body could not be identified from the bones which were presented before him. In his statement he stated that few articles i.e. One piece of shoe, one shirt, one shalwar and two pieces of papers were also produced before him along with dead body. He admitted that he had not mentioned in the post-mortem report that shoe, shirt and shalwar and other articles were stained with mud, blood or torn. The only source of identification of the dead body was the clothes and the articles found around the dead body. Whether any clothes or watch or shoe was found around the dead body is not free from doubt. We may refer here to the statement of the Investigating Officer, who admitted it to be correct that last-worn clothes of the deceased and shoe were in good condition. It could not be possible as the animals had eaten the whole flesh of the dead body and taken away many of the bones, how shirt and Shalwar could remain intact in good condition. It is a clear-cut case of padding J and concoction on the part of the Investigating Officer.
15. The recovery of string, Kassi and such-like articles would be of no consequence as neither they were bloodstained nor were of any special make.
16. As far as the evidence of pointing out the place of occurrence is concerned, the same being inadmissible cannot be looked into.
17. The motive set in the F.I.R. Is also not proved through any independent M evidence. No receipt or surety was obtained about the selling of buffalo. No document was executed prior to handing over the buffalo on credit to Asif. The complainant himself was unsure about the motive and added that Asif wanted to commit many frauds. There is nothing on record to show that Ash' was previously involved in any criminal case.
18. In the above noted circumstances, we are of the considered opinion that the prosecution case is replete with doubts. Hence while granting benefit of doubt to the appellants we allow this appeal, set aside the impugned judgment and acquit the appellants of all the charges. They would be released from jail forthwith, if not required in any other case.
19. Consequently Murder Reference is answered in the negative. Death sentence is not confirmed.
20. For the same reasons, Cri Revision No.920 of 2002 is dismissed.