' MIAN MUHAMMAD NAJAM- UZ-ZAMAN, J.-Appellant Muhammad Shafiq alias Bhola was tried for the murder of Muhammad Saeed Ahmad in case F.I.R. No,51 dated 7-5-2002 for the offence under section 302, P.P.C. Registered at Police Station Lessar Kalan, District Narowal by the Additional Sessions Judge, Shakargarh District Narowal who vide judgment dated 11-4-2003 convicted the appellant under section 302(c), P.P.C. And sentenced him to twenty years R.I. As well as to pay compensation amounting to Rs,50,000 as required under section 544-A, Cr.P.C. Or in default whereof to further undergo three months S.I. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant.
2. Calling in question the judgment, appellant filed Criminal Appeal No,810 of 2003 while the complainant has filed Criminal Revision No,424 of 2003 seeking enhancement of sentence of Muhammad Shafiq. Both these matters are being disposed of together by this judgment.
3. Succinctly prosecution case as narrated in the F.I.R. Lodged by Ghulam Dastagir P.W.4 is that complainant was a school teacher and his brother Muhammad Saeed Ahmad deceased was a taxi driver by profession. At about midnight between 6th and 7th July, 2002, on receiving a telephonic message that Muhammad Saeed Ahmad was lying seriously injured in the Tarapur Dispensary to whom first aid was being provided by the Army personnel, he (complainant) along with Muhammad Aslam, Muhammad Sardar and Abdur Rehman P.Ws. Reached at the Dispensary and on query Muhammad Saeed Ahmad told them that a young boy hired his taxi for going to Khuthi and at 11-30 p.m. When they reached within the revenue estate of Mauza Kotfley Bholey in front of the house of Noor Din, the tyre of the said taxi was punctured and about the payment of fare a dispute took place between them (deceased and the accused) whereupon the said unknown boy gave knife blows and injured him. Upon the hue and cry of the injured (deceased) the inhabitants of the locality came at the spot and removed the injured in a tractor trolley to Tarapur Dispensary, from where he was taken to Civil Hospital, Zafarwal and then he was referred to Sialkot Hospital. Statedly, on his way to hospital, Sialkot, Muhammad Saeed Ahmad succumbed to the injuries.
4. On receiving information about the said occurrence, Ghulam Abid Inspector S.H.O. P.W.10 who was on patrol duty in his area, reached at the hospital where he met complainant Ghulam Dastagir P.W.4 and recorded his statement Exh. PA on the basis of which formal F.I.R. Exh.PA/1 was registered at the police station. The Investigating Officer after preparing necessary documents, sent the dead body to the mortuary for post-mortem examination. Thereafter the Investigating Officer visited the spot and during the site inspection collected blood-stained earth vide memo. Exh.PD, car of the deceased vide recovery memo. Exh. PF and shoes of the accused vide memo. Exh.PE. He also prepared rough site-plan Exh.PM. Statedly, upon a spy information he (police officer) came to know that offence was committed by Muhammad Shafiq alias Bhola appellant. On the same night, i.e, (the day case was registered) a supplementary statement of the complainant nominating the appellant as culprit was also brought on the record. This police officer also got prepared scaled site- plan Exh.PC through Muhammad Tahir Tasneem draftsman P.W.7. Appellant was arrested by the Investigating Officer on 18-5-2002 and during the interrogation on 21-5-2002 he (appellant) led to the recovery of blood-stained knife and clothes rapped in black shopper lying in the bushes near Nala Phabbi. These articles were taken into possession vide memos. Exh.PG and PH.
5. Before the trial Court prosecution produced ten witnesses to prove the charge against the appellant.
' Farhat Munir P.W.l identified the dead body of Muhammad Saeed at the time of post-mortem examination. Tahir Hameed P.W.2 deposed that on 6-5-2002 in his presence appellant hired the taxi of deceased and upon query he (appellant) disclosed his name as Muhammad Shafiq statedly appellant had hired the taxi for going to Khuthi against the fare of Rs,250. Muhammad Khan P.W.3 deposed that he had met Muhammad Shafiq appellant while travelling in a bus bounded for Rawalpindi and during the journey appellant while making confessional statement disclosed to him that he (appellant) had hired the taxi of Muhammad Saeed Ahmad for travelling from Zafarwal to Khuthi but on the way the tyre of the taxi was punctured. He (appellant) asked the driver to drop him at the destination, the driver (deceased) requested him (appellant) to go on foot whereupon a dispute arose, between them and he (appellant) after giving knife blows to the driver fled away from the spot. Ghulam Dastagir P.W.4 while supporting the prosecution case as narrated in the F.I.R. Made statement before the trial Court. He also narrated that Tahir Hameed P.W.2 and Muhammad Khan P.W.3 had informed him that it was the appellant who had committed the murder of his brother and while making supplementary statement had disclosed the name of appellant as the real culprit. Muhammad Yousaf FC P.W.5 took the parcels (case property) to the office of Chemical Examiner. Muhammad Ishaq H.C. P.W.6 entered formal F.I.R. Exh.PA at the police station. He also kept the parcels in the Malkhana for safe custody and later on handed over the same to Muhammad Yousaf FC P.W.5 for onward transmission to the relevant office. Muhammad Tahir Tasneem draftsman P.W.7 prepared scaled site-plan Exh.PC. Abdur Rehman P.W.8 had accompanied the complainant to the Hospital where Muhammad Saeed Ahmad was under treatment. He also deposed about the information conveyed to the complainant by the deceased as find mentioned in the F.I.R. He was also present when the Investigating Officer took into possession the above said articles from the spot as well as when the accused led to the recovery of crime weapon and the blood-stained clothes and had signed the relevant recovery memos. Dr. Muhammad Javaid Iqbal P.W.9 conducted post-mortem examination on the dead body of Muhammad Saeed Ahmad and observed the following injuries on the person of the deceased:-
(1) An incised wound 3 c.m. Stitched vertical direction 6 c.m. Away from nipple at the left side of chest.
(2) An incised wound 9x3 c.m. At the left abdomen vertical direction 1 c.m. Away from umbilicus.
(3) An incised wound of 2.x 1/2 c.m. At the back, inner side of ring finger of left hand.
' Ghulam Abid Inspector/S.H.O. P.W.10 conducted the formal investigation of this case as narrated earlier.
' Special Public Prosecutor tendered in evidence report of Chemical Examiner i.e, Exhs.PQ, PR and PS and closed the prosecution case.
6. Trial Court also examined the appellant under section 342, Cr.P.C. Who while denying the charges pleaded that he has been falsely involved in this case. Appellant did not make any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
7. Trial Court, after appraisal of evidence available on record, vide judgment dated 11-4-2003 convicted and sentenced the appellant as narrated earlier.
8. Learned counsel for the appellant while challenging the legality of the impugned judgment argued that it was an unseen occurrence, deceased Muhammad Saeed was done to death by some unknown person on the night falling between 6/7-5-2002 and the appellant had been involved in this case with mala fide intention by the complainant party because of his previous political rivalry with them. It was further submitted that the evidence in the form of last seen and extra-judicial confession was prepared by the Investigating Officer during the investigation in order to strengthen the prosecution case; argued that the evidence of recovery relied upon by the prosecution was also tailored during the investigation; submitted that the . Recovery of crime weapon as well as blood-stained clothes of the deceased was allegedly effected on 21-5-2002 i.e, after almost 15/16 days of the occurrence; during this period appellant "had ample time to dispose of the said articles and there was no occasion for him to keep the said items intact for the presentation of the same as souvenir to the Investigating Officer during the investigation. Learned counsel submitted that the evidence of last seen and that of extra-judicial confession was never put to the appellant by the trial Court while examining him under section 342, Cr.P.C. And thus this part of the prosecution case could not be relied upon to convict the appellant. Lastly argued that the evidence available on record is full of doubts and the impugned judgment could not sustain.
Conversely, learned counsel for the complainant as well as the State while supporting the prosecution case vehemently opposed the contentions raised by the learned counsel for the appellants. It was submitted that none of the witnesses who had deposed before the trial Court, had any kind of animosity against the appellant for his false involvement in this case, further that all the witnesses made statement in a very natural and normal manner; during the investigation appellant led to the recovery of blood-stained knife and his clothes, his shoes were also recovered from the spot; submitted that in the light of the said evidence coupled with the evidence of last seen and that of the extra-judicial confession of the appellant it could easily be said that the appellant had committed the murder of Muhammad Saeed Ahmad and that in the circumstances appellant was rightly convicted and sentenced by the trial Court.
9. Heard. File perused.
10. According to the prosecution case Muhammad Saeed was done to death on the night falling between 6/7-5-2002 within the area of Kothey Bholey falling within the jurisdiction of Police Station Lessar Kalam At the time of lodging the F.I.R. No body knew about the real culprits and according to the complainant's own version, when he met the deceased in the hospital who was still alive, he (deceased) told him that some unknown passenger of his taxi car had caused injuries to him with sharp edged weapon because they had a dispute over the payment of fare. Later, on the basis of a supplementary statement of the complainant, appellant was involved in this case. (This supplementary statement was not placed on the record during the trial). According to the complainant's version the identity of the 'accused (appellant) was disclosed to him by Tahir Hameed P.W.2 and Muhammad Khan P.W.3, thus before the trial Court in order to prove its case prosecution relied upon the evidence of dying declaration, last seen extra-judicial confession of the appellant, recovery of incriminating articles at the instance of the appellant.
' As far the dying declaration is concerned, admittedly, deceased never disclosed the identity of the accused who had caused him injuries, thus this part of evidence is of no help to the prosecution case.
' With regard to the evidence of last seen I. Have observed that Tahir Hameed P.W.2 had made statement in this regard. According to this witness on 6-5-2002 at about 10-30 p.m. Deceased Muhammad Saeed Ahmad was taking tea with him in a hotel when appellant came and hired taxi of the deceased against the fare of Rs,250 for Khuthi and within his view both of them left for the destination. Statedly, on the next day he came to know about the murder of Muhammad Saeed Ahmad and informed the complainant in this regard. I have observed that this witness never appeared before the police on the day F.I.R. Was registered, he had participated in the funeral ceremony of Muhammad Saeed Ahmad deceased and at that time statedly police officials were also present but strangely he never made statement before the police at that time and got recorded his statement under section 161, Cr.P.C. At the police station after 10/12 days of the occurrence. While deposing before the trial Court, this witness took a specific stand that he had informed the complainant about the said facts on the day he had attended the funeral ceremony but he was confronted with his previous statement in this regard. This unexplained delay of many days in recording the statement of witnesses during the investigation of this case, cast doubts upon the authenticity of this piece of evidence (i.e, last seen). Even otherwise, it is sell settled that evidence of last seen in the absence of any corroborative piece of evidence is of no legal value.
' The next limb of the prosecution case is extra-judicial confession of the appellant. Statedly, appellant had confessed his guilt before Muhammad Khan P.W.3 when this witness along with the appellant was travelling in a bus bounded for Rawalpindi. Not only the time, place and the manner in which allegedly appellant had confessed his guilt before the said witness is unnatural and unbelievable but I have also observed that there was no occasion for the appellant to make such confession before this witness because neither he is closely related to the complainant party nor was in a position to exert his influence on the complainant party for a compromise or pardon to the appellant. Similarly, the statement of this witness is absolutely silent with regard to any promise with the appellant about any kind of help to save his (appellant) skin. This witness after hearing the confessional statement never attempted to apprehend the appellant at the spot nor he raised hue and cry to attract the attention of the passengers in this regard. The conduct of this witness was also very unnatural and sufficient to doubt his credibility. According to this witness he had informed the complainant about the said confessional statement on the day the F.I.R. Was registered but strangely he was never produced before the Investigating Officer for recording his statement on the same day. The statement of this witness was recbrded after 2/3 days of the occurrence.
' Another piece of evidence relied upon by the prosecution is recovery of incriminating articles at the instance of the appellant i.e, recovery of blood-stained knife P.6 along with blood-stained Shalwar P.4 and Qameez P.5. In this regard, I have observed that the appellant was taken into custody on 18-5-2002 i.e, after 10/11 days of the occurrence and he (appellant) had ample time to wash the blood-stains from the said articles or to destroy the same. Allegedly, appellant got recovered the said articles from the bushes on the bank of rain storm channel (Nala Phabbi). The said spot was an open place accessible to the public and not in the exclusive possession of the appellant, the possibility of placing the said articles later on by someone else also could not be ruled out.
' I have also observed that the trial Court while examining the appellant under section 342, Cr.P.C.
Never put any question to him with regard to the evidence of last seen and extra-judicial confession made by the appellant, thus I find much force iii the arguments of the learned counsel for the appellant that this piece of evidence could not be relied upon to uphold the conviction and sentence.
No doubt the witnesses who had deposed against the appellant had no direct enmity with the appellant but this fact alone is not sufficient to say that whatever the witness had deposed before the trial Court was nothing but a gospel truth especially when the circumstances of this case speak otherwise. The said loopholes in my view are sufficient to doubt the credibility of prosecution case entitling the appellant to get the benefit of the same. Accordingly, the instant appeal is accepted, conviction and sentence of the appellant is set aside and he stands acquitted from the charge. He shall be released forthwith if not required to be detained in any other case.
' For the reasons discussed above, I find no force in Criminal Revision filed by the complainant seeking enhancement of the sentence of the appellant, the same stands dismissed.