' TARIQ SHAMIM, J.---Muhammad Khan, Muhammad Aslam, Muhammad Ramzan and Nazar Hayat appellants, through this appeal, have assailed the impugned judgment dated 26-1-2004 passed by the Additional Sessions Judge, Sargodha whereby he convicted the appellants in case F.I.R.
No,62 dated 4-4-2003 registered at Police Station Shahpur Saddar District Sargodha to the following effect:-
(i) Under section 302(b)/34, P.P.C.: imprisonment for life each.
(ii) Under section 364/34, P.P.C. Five years each and fine of Rs,5,000 each or in default to further undergo six months' S.I. Each.
(iii) Under section 404, P.P.C.: three years R.I. Each and fine of Rs,5,000 each or in default to undergo two months' S.I. Each.
(iv) The appellants were also directed to pay compensation of Rs,50,000 each to the legal heirs of the deceased or in default to further undergo six months' S.I. Each as contemplated by section 544- A, Cr.P.C.
2. The brief facts of the case as disclosed in the F.I.R. Exh.PA lodged by Muhammad Yousaf complainant are that on the night between 30/31-3-2003 he along with his brother Muhammad Sultan, Murid Akbar deceased and maternal uncle Muhammad Sultan were sitting in his Baithak whereafter some time Nazar Hayat appellant came and asked Murid Akbar deceased to accompany him on the pretext that he had to go for some urgent work and whereafter they went away. Later on the complainant and others went to sleep in their house. The licensed gun of the complainant was laying in the Baithak. When they awoke early in the morning they found Murid Akbar as well as his gun missing. He went to Nazar Hayat and enquired from him about his brother and then went to Muhammad Ashraf accused, who used to suspect that Murid Sultan deceased had illicit relations with his daughter. Muhammad Ashraf failed to give a satisfactory reply.
Thereafter, he kept on searching for his brother but could not trace him.. In the meanwhile, Muhammad Ashraf accused came to their house and said that he had already committed the murder and now he would also commit the murder of Murid Akbar. On 4-3-2003 at 12-00 noon Habib Ullah P.W. Informed the complainant that dead body of his ,brother was tying in the wheat crop of Shah Nawaz whereupon Muhammad Yousaf complainant,. Muhammad Akram and Muhammad Sultan P.Ws. Along with some other persons went to the spot and found that dead body of Murid Akbar was lying in the wheat crop. He left Muhammad Sultan and. Muhammad Akram near the dead body and himself went to police station and got the report (Exh.PA) registered.
3. The motive set up in the F.I.R. For the murder of Murid Akbar was that Muhammad Ashraf accused suspected that the deceased had illicit relations with his daughter.
4. Muhammad Riaz, Inspector/S.H.O. (P.W.13) on 4-4-2003 after recording the F.I.R. (Exh.PA) went to the spot, where he prepared injury statement Exh.PI and inquest report Exh.PJ, entrusted the dead body to Khizar Hayat Constable for conducting post-mortem, recorded the statements of the P.Ws, inspected the place of occurrence, took into possession .12 bore gun P.3, one empty cartridge P-4 and a bag P-5 containing five live cartridges P-6/1-5 vide memo. Exh.PB, prepared rough sketch of the spot as Exh.PK. He took into possession blood-stained shirt P-8, Shalwar P-9 vide memo. Exh.PD the same day and recorded statements of Muhammad Akram, Muhammad Nawaz, Amir Mukhtar, Muhammad Hayat H.C. And Khizar Hayat Constable and started searching for the accused. On 9- 4-2003 he got prepared site plans Exh.PG and Exh.PG/1 from Akhtar Abbas Patwari. On 3-5-2003 Muhammad Ashraf acquitted co-accused joined the investigation. On 7-5-2003 the Investigating Officer arrested Muhammad Khan, Muhammad Aslam and Muhammad Ramzan accused. On 9-5- 2003 Muhammad Khan appellant got recovered 7 live cartridges of .12 bore. Gun P-10/1-7 which the Investigating Officer took into possession vide memo Exh.PE. Muhammad Aslam appellant while in police custody led to the recovery of a piece of cloth Exh.P-7 and ring P-8 from his house which were took into possession vide memo. Exh.PC. On the same day Muhammad Ramzan appellant while in police custody led to the recovery of watch P-2 of the deceased from his house lying in an iron box which was taken into possession vide memo Exh.PF. Thereafter the investigation was transferred to Ghulam Abbas S.I. P.W.9 who examined both the parties and arranged their meetings on different dates. On 29-6-2003 he recorded statements of Mansab Khan and Rab Nawaz P.Ws.
Ghulam Abbas; S. -I. Arrested Muhammad Ashraf and, Nazar Hayat accused on 2-7-2003 and after completion of the investigation he submitted the challan to the trial Court.
5. The appellants/accused were charged under sections 302, 364, 404 and 148/149, P.P.C. To which they pleaded not guilty and claimed to be tried.
6. At the trial, the prosecution in order to prove its case produced as many as 13 witnesses.
Muhammad Yousaf complainant appeared as P.W.l and supported the contents of the F.I.R., Muhammad Ashraf P.W.2 stated that he heard the accused persons of having murdered Murid Akbar deceased, Muhammad Akram P.W. 3 deposed about * extra-judicial-confession made by Muhammad Ashraf acquitted accused and the appellants, Muhammad Riaz P.W.6 deposed, that he on 30/31-3-2003 at about 9-0 p.m. Had seen the deceased along with the appellants in the area, of village Jalpana. Ghulam Abbas, S.I. P.W.9 and Muhammad Riaz Inspector P.W.13 investigated the case. The evidence of rest of the witnesses is of formal nature. The prosecution tendered in evidence reports of Forensic Science Laboratory Exh.PL and closed its case.
7. After recording the prosecution evidence the trial Court recorded the statements of the appellants and that of their co-accused under section 342, Cr.P.C. Who did not opt to appear as witnesses in their defence under section 340(2), Cr.P.C. However, they produced Asghar Ali Naib Moharrir Police Station Shahpur Saddar as D.W.l. Muhammad Khan appellant tendered in evidence certified copy of Talaqnama as Exh.DG. In reply to the question "Why this case against you?" the appellants stated as under: - ' "The P.Ws. Deposed falsely due to enmity" -
8. At the conclusion of the trial, the learned trial Judge acquitted Muhammad Ashraf co-accused and convicted and sentenced the appellants as stated above. Hence this appeal. The complainant has also assailed the impugned judgment by filing Criminal Revision No, 135 of 2004 seeking enhancement of sentence awarded to the appellants. Both the matters are being decided together through this judgment.
9. Mr. S. M. Masood, the learned counsel for the appellants contended that the F.I.R. Was lodged by the complainant with a delay of four days which had not been explained; that there existed previous background of enmity and grudge between the complainant side and the accused party on account of which the appellants had been falsely involved in the case; that in their deposition before the learned trial Court the witnesses had made dishonest improvements; that the- body of the deceased was unidentifiable as the piece of his face from the chin above was missing which has been admitted by P.W.15 in the statement before the learned Court, therefore, the story as narrated by the complainant was false; that P.W.2 in his testimony could not come up with a convincing story of having purportedly heard the accused talking about the murder of the deceased at 11-00 p.m. And that too from far away distance; that the witness of extra-judicial confession P.W.3 was close relative of the complainant side, hence it was highly improbable for the appellants to have made confession before him; that the purported recoveries effected from the appellants were fake as no private individual had been associated with the recovery proceedings by the police, as such, the recovery was Of no consequence particularly as there was no evidence that the ring and the watch recovered by the police belonged to the deceased; that the last seen evidence furnished by P.W.6 was not creditworthy as the said witness had made dishonest improvements before the learned trial Court and further the said witness knew that the deceased was missing from the night between 30-31 March, 2003. However, he never reported the matter to the police until 5-4-2003. The' delay in reporting the matter to the police has not been convincingly disclosed by the said witnesses. P.W.9 who had officially investigated the case and P.W.13 admitted that Muhammad Ashraf acquitted coaccused and Nazar Hayat were innocent in the case; that no blood was found at the place from where the dead body was recovered which was in the testimony of P.W.13 the investigating officer and that the appellants had been falsely implicated in the case out of mala fide by the complainant as such the conviction recorded by the learned trial Court was not sustainable under the law.
10. The learned counsel for the complainant as well as the learned counsel appearing on behalf of the State contended that the statements of the witnesses were in line on all material points; that the motive as asserted in the F.I.R. Was fully proved at the trial by the witnesses; that the murder of the deceased was committed by the appellants and their acquitted co-accused in cold blood; that no defence plea was raised by the appellants before the learned trial Court and that the judgment was based on proper appreciation of evidence and in consequence with law as such the same did not warrant interference.
11. I have heard the learned counsel for the parties and perused the record with their able assistance.
12. The case of the prosecution rests on circumstantial evidence. Muhammad Yousaf the complainant appeared as P.W.l before the learned trial Court and deposed that on the night between 30/31-3-2003 he along with his brothers Muhammad Sultan, Mureed Akbar deceased and maternal uncle Muhammad Suitan were sitting in the Baithak when Nazar' Hayat accused came there and asked the deceased to accompany him as he had to go for some important business.
According to this witness, Nazar Hayat accused and Murid' Akbar left the house in his presence.
However, in the morning the said P;W. Found that the deceased had not returned to the house and that his licensed gun was also missing from the Baithak. Thereafter the witness and others launched a search for the deceased and in the said regard also approached Muhammad Ashraf, the acquitted accused, who could not give a satisfactory reply to query put forth by the said witness. He was informed by Habib Ullah P.W. On 4-4-2003 that the dead body of Murid Akbar deceased, was lying in the wheat crop of Shah Nawaz (not produced). The complainant along with others went to the spot and identified the dead body of Murid Akbar. The complainant thereafter went to the police station and lodged F.I.R. Exh.PA. The gun of the complainant was lying next to the dead body whereas the ring and the watch of the deceased were missing in respect of which he made a supplementary statement before the police.
13. The complainant Muhammad Yousaf P.W.l in his deposition admitted that Muhammad Ashraf acquitted accused and Nazar Hayat appellant were declared innocent during investigation by Muhammad Riaz, I.O. P.W. 13 as well as the A.S.P. Who had investigated the case. He further admitted that he had made statement Exh.DA before the A.S.P. On 15-7-2003. The statement reveals that the witness, who was employed as ambulance driver with Edhi Foundation, on the night between 30th and 31st of March, 2003, was at Sargodha and not at his residence in village Bakhri. It further reveals that the witness had been provided information by Muhammad Ashraf son of Ahmad Khan on telephone at 9-00 a.m. At Sargodha about the occurrence whereupon he returned to the village 'and was provided details by his brother Muhammad Sultan (not produced).
In the light of the statement Exh.DA, it can be safely inferred that the witness was not present when the deceased left in the company of Nazar Hayat appellant. It has also come in the evidence of this witness that there existed a background of enmity between the parties. In his cross- examination, the said witness in an answer to a question put by the defence, admitted that Muhammad Ashraf, the acquitted accused had informed him, at his house, about having, committed the murder of Murid Akbar deceased. However, he has failed to provided any plausible explanation for not immediately reporting the matter to the police. The witness further stated that blood was found under and near the dead body of the deceased. This assertion of the witness is belied ^by the testimony of Muhammad Riaz P.W. 13 who stated before the learned trial Court that he had tried his best to find blood at and near the spot but the same was not available. The evidence furnished by this witness which is full of dishonest improvements and contradictions leaves an impression that this witness has not come out with the truth.
14. The motive as urged by the complainant in the F.I.R. And at the trial is suspicion of illicit relations between the deceased and the daughter of Muhammad Ashraf co-accused who was declared innocent during investigation and was acquitted at the trial. The testimony of this witness to the extent of motive is not supported by any other witness. Further, the motive is not illicit relations but only suspicion of illicit relations between the deceased and the daughter of Muhammad Ashraf.
Since there is no supporting evidence On the record as such, the motive for the occurrence has not been proved.
15. The prosecution also produced Muhammad Ashraf P.W.2 who deposed before the learned trial Court that on the night before 30th and 31st March, 2003, while he was feeding his cattle, he was attracted by the barking of the dog whereupon he saw Muhammad Ashraf, Muhammad Aslam, Muhammad Khan, Muhammad Ramzan and Nazar Hayat Maikan accused who were loudly talking of having murdered the deceased. This witness did not report the matter to the police or the relatives of the deceased till 5-4-2003. The witness in his cross-examination stated that he did not deem it fit to inform the family members of the deceased about the conversation. Even otherwise, the witness purportedly heard the conversation of the accused at 11-00 p.m. And that too from a distance of about 4/5 Killas from his Dera. The evidence furnished by this witness is not only unrealistic but beyond comprehension.
16. Muhammad Akram P.W. 3 in his statement before the learned trial Court deposed about the extra-judicial confession made by the acquitted accused Muhammad Ashraf and the appellants on 9-4t2003 which is 9 days after the occurrence. The said witness did not immediately contact the police or approach the relatives of the deceased although he was involved in the search for the deceased who was his nephew. Further, according to this witness each and every accused independently made statement regarding his own role as well as that of his co-accused. It does not appeal to mind that the appellant had any plausible reason to make confessional statements before the said P.W. Who admittedly is a close relative of the complainant. Even otherwise, the evidence of extra-judicial- confession is a weak type of evidence which by itself is not sufficient to base Conviction.
17. The last seen evidence in the case was furnished by Muhammad Riaz P.W.6 who deposed before the learned trial Court \ that at 9-00 a.m. On the night between 30th and 31st of March, 2003, while he was returning to his house, he had seen Muhammad Khan armed with a .12 bore gun accompanied by Muhammad Ashraf coaccused and the appellants with Murid Akbar deceased proceeding towards the western side of the field of Shah Nawaz. This witness further deposed that Murid Akbar deceased and Muhammad Khan appellant had informed him that they were going for some urgent business. On 4-4-2003 the said witness learnt that the dead body of Murid Akbar deceased had been found from the field owned by Shah Nawaz but did not make a statement before the police till 5-4-2003 although, he was aware that Murid Akbar was missing since 30/31-3- 2003. The last seen evidence provided by this witness, therefore, appears to be lacking and cannot be accepted without corroboration from some unimpeachable source.
18. Seven live cartridges Exh.P. 10/1-7 were recovered from die residential room of Muhammad Khan appellant which were taken into possession vide memo Exh.PE. Khizar Hayat P.W.7 appeared as a witness before the learned trial Court to prove the recovery. Mere recovery of live cartridges cannot prove the involvement of Muhammad Khan appellant. Further, the recovery was witnessed by- Khizar Hayat Constable P.W.7 and not by any independent witness of the locality. Similarly, watch P.2 was recovered on the disclosure of Muhammad Ramzan appellant from his residential room which was taken into possession vide memo Exh.PF. This recovery was proved through the testimony of Muhammad Nazir Constable P.W.8 who in his cross examination stated that the box from which the watch was recovered was lying open and although a number of persons of the locality were present at the time of recovery, none was associated with the proceedings. One white piece of cloth P.7, which was hot stained with blood and ring P.l without any special marking were recovered from the residential house of Muhammad Aslam appellant. The prosecution in order to prove the recoveries produced Muhammad Akbar FC P.W.5 who in his testimony admitted that although a number of persons from the locality were present at the place, however, none was associated by the investigating officer to witness the recovery. Thus, it is apparent that the above recoveries were effected in flagrant disregard of the mandatory provisions of section 103, Cr.P.C.
And therefore, no reliance could be placed thereon.
19. Site-plan was prepared by P.W. 10 Akhtar Abbas Revenue Patwari who admitted that the names of the accused persons or the P.Ws. Were not mentioned in the site-plan and that it was prepared under the direction of the police and not on the pointation of the P.Ws.
20. The investigation in the case was conducted by P.W. 13 Muhammad Riaz, Inspector/S.H.O. And Ghulam Abbas S.-l. P.W.9. Muhammad Riaz, Inspector deposed that Muhammad Ashraf co- accused and Nazar Muhammad appellant were declared innocent in the case by him. He further stated that blood was not available at or near the spot from where the dead body was found. This obviously implies that the deceased was done to death at some other place, yet no effort was made by this witness to ascertain as to where the actual murder had taken place. With regard to recovery of gun the witness stated that when the gun was sent to the Forensic Science Laboratory, an objection was received that the number of the gun in the memo, did not tally with the number engraved on the gun. This also has a negative bearing on the prosecution case.
21. From the above it is manifestly clear that the evidence produced by the prosecution at the trial is not only lacking and deficient but full of improbabilities.
22. For what has been discussed above, I accept this appeal, set aside the conviction and sentence awarded to the appellants through the impugned judgment passed by the learned trial Court and acquit them from the charges. They are in jail and may be released forthwith if not required in any other case.
23. As a sequel, Criminal Revision j No, 135 of 2004 is dismissed in limine.