This appeal is directed against the judgment dated 3.6.2005 passed by learned Addl. Sessions Judge, Tandlianwala District Faisalabad whereby appellants were convicted under Section 302/34, PPC. Muhammad Yacoob, appellant was sentenced to suffer 5 years R.I. whereas Riaz and Nasir, appellants were sentenced to suffer 25 years R.I each. They (Riaz and Nasir) were also directed to pay Rs. 1,00,000/- each as compensation to the legal heirs of deceased (Muhammad Asghar) in default whereof to undergo SI for one year in case FIR No. 38/ 2005 dated 19.1.2005 under Section 302, PPC registered at Police Station Tandlianwala District Faisalabad.
2. The prosecution story as appearing from the testimony of PW. 2, Muhammad Yactoob, complainant is that his son Muhammad Asghar aged about 30-35 years used to prepare Manjan' and sell in buses. On 18.1.2005 early in the morning he went out for his job and did not return till night. The complainant alongwith Siddique and Muhammad Akram searched for him and when they reached in the land of Abid son of Jehangir Bhutta (in the area of Chak No. 393/GB), they saw Muhammad Asghar was lying unconscious in a watercourse. There were injuries on his face and different parts of the body. The took him to hospital Tandlianwala but he died before reaching hospital. His son was murdered by some unknown persons: He was going to report the matter to the police but police met him near the gate of bus stand. He made statement, Ex. PA before police, which was read over to him and he signed the same in token of its correctness. On the next day Muhammad Khan and Alam Sher, PWs told him that Nasir, Riaz alias Ranoo and Yaqoob (accused) had confessed before them that they had murdered Muhammad Asghar. In the meanwhile Mansha alias Munshi and Muhammad Boota son of Akbar Ali, PWs told him that they were going to get medicine for their buffalo from the Veterinary doctor and they had seen accused (Nasir, Riaz and Yaqoob) beating Asghar and they threw him in injured condition. On 21.1.2005 police recorded his supplementary statement about the aforesaid accused persons. The accused murdered his son and took away his pair of shoes and bag containing currency. and `Manjan'. On his statement present case was registered against the accused.
Sarfraz Ahmad, SI (PW. 12) is the I.O. in this case. He stated that on 19.1.2005 he was present in police station when complainant came to him and informed about the occurrence. He recorded his statement, Ex. PA and sent the same for registration of a case. Thereafter he 'reached THQ Hospital Tandlianwala. He handed over the dead body to Ghulam Shabbir, Constable for post-mortem examination and got prepared inquest report, Ex.PE from Abdul Gafoor, SI. He also got prepared injury statement, Ex.PF from Abdul Ghafoor, SI. The I.0 reached the place of occurrence and prepared rough site plan, Ex.PK and recorded statements of PWs. After post-mortem examination Ghulam Shabbir, Constable produced before him last worn cloths of deceased, Kameez P.1, Shalwar P 2, jersey P 3 and a sealed parcel, which were taken into possession vide memo, Ex. PJ. He handed over last worn clothes of deceased and sealed parcel to Itfoharrir' for safe custody in `malkhana'. On 21.1.2005 complainant came to him alongwith 4 PWs and he recorded his supplementary statement that PWs, Muhammad Mansha and Muhammad Boota had seen the accused beating the deceased and that accused had made extra-judicial confession before PWs, Alam Sher and Muhammad Khan. He recorded statements of above mentioned four PWs and thereafter investigation was transferred to Shaukat Ali, SI on the orders of SP (Investigation).
PW. 13, Shaukat Ali, SI is also I.0 in this case. He stated that on 30.1.2005 investigation was entrusted to him. On 2.2.2005 he took alongwith him Mehmood Hussain, `Patwari' for preparation of site-plan.
On 4.2.2005 Patwari handed over to him site-plans of the place of occurrence, Ex.PG and Ex.PG/1. On 6.2.2005 he arrested Yaqoob, Nasir and Riaz, accused. On 9.2.2005 Riaz, accused led to the recovery of a pair of shoes, which was taken into possession vide memo, Ex.PC. He prepared site-plan of the place of recovery Ex. PL. On the same day Nasir accused led to the recovery of bag (containing a cap, six packets of Wanjan' and private identity card), which were taken into possession vide memo, Ex.PB. He prepared site-plan Ex.PM of the place of recovery of bag. The I.0 recorded statements of PWs and on 15.2.2005 got prepared challan from SHO.
3. The accused appeared before trial Court and charge under Section 302/34, PPC was framed against them to which they pleaded not guilty and claimed trial whereupon prosecution evidence was recorded. The prosecution examined 13 witnesses in all to prove its case.
4. PW. 1, Aftab Ahmad identified the dead body of Muhammad Asghar at the time of post-mortem examination. PW. 2, Muhammad Yaqoob is the complainant in this case and what he stated in his examination-in-chief has already been noticed above. During cross-examination, he denied that his son Muhammad Asghar, deceased was an addict. He also denied that his son died due to excessive use of intoxicant. He explained that Muhammad Asghar was murdered by accused for snatching money from him.
5. PW. 3, Muhammad Akram reiterated the story narrated by PW.2 Muhammad Yaqoob. He is uncle of deceased. He also stated that accused got recovered a bag and pair of shoes in his presence.
6. PW. 4, Muhammad Mansha stated that on 18.1.2005 at about 8:00 p.m he alongwith Muhammad Boota was going to the veterinary doctor of Chak No. 393/GB for medicine of his buffalo and when they reached near the land of Abid son of Jehangir, they saw accused were beating Asghar son of Muhammad Yagoob. They identified all three accused on next morning. The informed the complainant about the occurrence. Police recorded their statements. During cross-examination he stated that they did not join the funeral ceremony ' of Asghar, deceased. He did not know the name of veterinary doctor. The witness stated that when they returned from veterinary doctor, all three accused (Muhammad Yaqoob, Nasir and Riaz) were beating Asghar, deceased by fists and kicks in the street. He did not know about the residences of the accused. It was moonlit night when they passed that street. They came to the veterinary doctor by motor bike. They came to know about the death of Asghar, deceased on the next day. There was a rumour in their village that Asghar son of Yaqoob had died. They went to the house of complainant one day after the occurrence. The made statements before police 4/5 days after, they told the complainant about the occurrence.
They did not inform police when they saw accused giving beating to Asghar, deceased. The deceased was making noise at the time of occurrence:
7. PW. 5, Alam Sher stated that on 20.1.2005 at evening time accused came to him and told individually that Asghar used to sell Manjan' in buses and they gave him beating and threw in a water course in the field of Abid son of Jehangir in injured condition, who died on the next morning.
Many people saw them when they were beating deceased. The accused also gave out that Muhammad Yaqoob, complainant had knowledge about the occurrence and they requested them (PW. 5 and Muhammad Khan) for securing pardon from Muhammad Yaqoob, complainant. They told about the conversation (extra-judicial confession) to Muhammad Yaqoob, complainant.
Police recorded their statements. The accused were known to him prior to this occurrence. During cross-examination, he stated that he joined the funeral ceremony of deceased on 20.1.2005 at about 10:00/11:00 a.m. The witness stated that accused came to them and made extra-judicial confession after evening. There is facility of mobile phone in their village. They did not inform the police about the occurrence: He denied that accused never made extra-judicial confession before him.
8. PW. 6, Muhammad Khan also reiterated the story narrated by PW.5.
9. PW. 7, Dr. Abdul Sattar conducted post-mortem examination on the dead body of Muhammad Asghar deceased and found following injuries:-- 1.A bruise 3 cm X 1% cm on right upper arm.
2.A bruise 1 cm X 1 cm on left side of neck 3.An abrasion 2 cm X 1 cm on low back.
4.An abrasion 3 cm X 3 cm on left cheek.
5.An abrasion 1 cm X 1 cm on left side of nose.
6.Three abrasions on forehead each of 1 cm X 1 cm. Cranium and spinal cord.
'Scalp, skull and vertebrae were found healthy. A piece of brain was taken and sent to Chemical Examiner.
'Thorax: 'Walls, ribs and cartilages, pleurae, larynx and tracheae were healthy, Right lung was healthy. One piece of lung was sent to the office of Chemical Examiner. Left lung was also found healthy.
Pericardium and heart were healthy. 10 cc. blood was taken from ventricle and sent to chemical examiner. Blood vessels were found healthy.
'Abdomen: 'All the organs of abdomen were found healthy however, one piece of stomach small intestines, large intestines, liver, spleen both kidneys was taken and sent to chemical examiner for detection of poison.
'The muscles, bones and joints of the deceased were healthy. Opinion.
'In his opinion the cause of death will be given after the arrival of report from chemical examiner.
'The probable time that elapsed between injury and death was immediate and between death and post-mortem was within 10-11 hours.
'Ex.PD is the correct carbon copy of post-mortem report which is in his hand and bear his signatures. He has seen the inquest report Ex.PE which is signed by him and also bears his seal. He has also seen the injury statement of the deceased Ex.PF which is also in his hand and bears his signatures. Now chemical report is before him which is Ex.PH according to it and his opinion about death is due to Injures Nos. 4 to 6".
'During cross-examination he admitted that he was unable to give the cause of death without seeing the report of Chemical Examiner. He denied that deceased died due to taking of some narcotics and due to the reason that he remained lying in cold weather whole the night.
10.PW. 8, Mehmood Hussain prepared site-plan, Ex.PG. During examination he stated that he has not mentioned names of PWs in Ex.PG. He admitted that he had prepared Ex.PG on the pointation of complainant and I.O.
11.PW. 9, Zulfiqar Ali stated that on 19.1.2005, he received complaint Ex.PA and recorded formal FIR, Ex.PA/1, which is in his hand and signed by him. On 19.1.2005 Ghulam Shabbir, Constable handed over to him one sealed envelop and one sealed parcel for safe custody in `malkhana' and on 27.1.12005 he handed over the same to Mohabat Ali, Constable for onward transmission to the office of Chemical Examiner, Lahore intact. PW. 10, Mohabat Ali stated that on 27.1.2005 Zulfiqar Ali, `Moharrir' handed over to him a sealed envelop and parcel for its onward transmission to the office of Chemical Examiner, which he delivered therein the said office intact. PW. 11, Ghulam Shabbir, stated that I.O. handed over to him dead body of Muhammad Asghar for post-mortem examination. After post-mortem examination doctor handed over to him last worn clothes of deceased, parcel and police papers and he produced the same before I.O., who took into possession vide memo, Ex. PJ which is signed by him.
12.PW. 12, Sarfraz Ahmad, SI is the 1.0 in this case and how he investigated the case has already been noticed above. During, cross-examination he stated that he tried to get information about the facts from the local people but no body gave him any material information and this fact was not brought on the record. He denied that he had not investigated the case properly and honestly.
13.PW. 13, Shaukat Ali, SI is also the 1.0 in this case and how he investigated the case has already been noticed above. During cross-examination he denied that many people had informed him that deceased was drug addict and he remained lying in cold weather whole night, which caused his death.
14.After the statements of aforesaid PWs, the accused were examined under Section 342, Cr.P.C. wherein they denied the allegations levelled against them by the prosecution and pleaded their innocence. After hearing the parties, learned trial Court convicted and sentenced the appellants as mentioned above vide judgment dated 3.6.2005. Hence this appeal.
15.I have heard the arguments and perused the record.
16.As mentioned above the prosecution case is that on 18.1.2005 at about 8:00 p.m appellants gave beating to Muhammad Asghar, deceased, as a result of which he died. However the case of appellants is that Muhammad Asghar was an addict and he died due to excessive use of drugs.
The prosecution produced ocular account, evidence of. extra-judicial confession, evidence of recovery and medical evidence to prove its case.
17.The appellants are not nominated in FIR. However complainant made supplementary statement before police on 21.1.2005 that Muhammad Mansha (PW. 4) and Muhammad Boota (given up PW) had seen the accused causing injuries on the person of Muhammad Asghar, deceased. Also that they had seen the accused throwing the deceased in water course in injured condition. However prosecution examined only Muhammad Mansha to prove its case. He is not resident of the same village, rather he is resident of Chak No. 441/GB. He stated that he was going to the veterinary doctor of Chak No. 393/GB, when he saw the accused beating deceased. As such he is a chance witness. During cross-examination, he stated that when they returned from the veterinary doctor, all three accused were beating deceased. It shows that he has contradicted his own statement as appearing in examination-inchief. Moreover he admitted that they did not inform the police about the occurrence. It is interesting to note that he remained silent till 21.1.2005.
There is no explanation as to why he remained silent for three days. As such. his statement cannot be believed. Moreover there is no A evidence to corroborate his statement. The evidence of a chance witness in the absence of corroborative evidence has to be excluded from consideration.
Reliance can be placed on the case of Zafar Hayat Versus The state (1995 SCM R 896) and Muhammad Bashir alias Pervaiz and anothers versus The State (2005 P.Cr.L.J 1135).
18.According to prosecution case accused made extra-judicial confession before PW. 5, Sher Alam and PW. 6, Muhammad Khan that they had committed murder of Muhammad Ashgar, deceased. The said witnesses neither apprehended the accused nor produced them before police.
There is nothing on record to show that they are influential persons of the area. As such it is not understandable that why accused selected them for making extra-judicial confession or for securing pardon from complainant. The prosecution has not been able to show that PW. 5 and PW.
6 were even known to complainant. It seems that they have been planted as witnesses of extra- judicial confession only to strengthen the prosecution story. Moreover they mada statement before police on 21.1.2005. There is no explanation as to why they remained silent after confession of accused. So the conduct of said PWs being most unnatural, story of extra judicial confession cannot be believed. Even otherwise extra judicial confession is a weak type of evidence and cannot be made basis for conviction without independent corroboration. Reliance can be placed on the case of Mst. Manzooran Versus The State (1989 M LD 832) and Mst. Jamila Bibi versus The State (1999 P.Cr.LJ 381). However there is no independent corroborative evidence in this case in support of the alleged extra-judicial confession.
19.The most important aspect of the case is that according to site-plan, Ex.PG `Abadi' of Chak No. 393/GB is at a distance of 18 karms from the place of occurrence. Likewise 'Azar) Abadi' 5 Marla scheme is also at the same distance. According to PW. 4, deceased had been making noise at the relevant time but none reached the spot to rescue him. According to site-plan, Ex. PG metalled road is at a distance of 94 karms from the place of occurrence and PW.4 alongwith.his companion (Muhammad Boota) had allegeldy seen the occurrence from a distance of 94 karms during night time, which makes the prosecution story doubtful. PW. 4 also stated-that accused were giving beating to deceased in the street. So his statement cannot be believed and even his presence at the scene of occurrence at the relevant time is doubtful.
20. As mentioned above injurers on the person of deceased were simple in nature. PW. 7, Dr. Abdul Sattar admitted in cross-examination that he was unable to give cause of death without seeing the report of chemical examiner. It shows that injuries were not sufficient to cause death in ordinary course of nature. According to report of chemical examiner no poison was detected from the articles sent for analysis. As such in the circumstances of the case, the opinion of Medical Officer has no value.
21.According to prosecution case bag, pair of shoes etc. had , been recovered at the instance of accused. However in the circumstances of the case, said recovery has no value.
22.According to statement of complainant (PW. 2) accused killed the deceased to snatch cash from the deceased. However during investigation no amount was recovered from accused. Even otherwise deceased was a `manjan' seller, hence prosecution story does not sound to be natural.
23. As stated earlier appellants are not named in FIR. The complainant nominated them in his supplementary statement. There is no provision in Cr.P.C. about the supplementary statement and generally it is recorded to fill the lacunas in the prosecution case. Reliance can be placed on the case of Mubarak Ali versus The State (2003 P.Cr.L.J 986) and Allah Ditta Versus State (PLJ 2000 Cr.0 (Lahore) 991 (DB).
24.The case of appellants is that deceased was addict and he died due to excessive use of intoxicant. According to prosecution case he remained out of his house during whole night and was found lying unconscious in a water course. So in the circumstances of the case, defence version seems to be plausible. In these circumstances I find that prosecution has miserably failed to prove its case against the appellants, rather it is case of no evidence, therefore, they deserve acquittal. So the impugned judgment is not sustainable in the eyes of law.
25.For what has been discussed above, I am of the considered opinion that prosecution has failed to prove its case against appellants beyond any shadow of doubt. So this appeal is accepted, impugned judgment is set aside and appellants are acquitted of the charge preferred against them by the prosecution. They are in jail and they shall be released forthwith if not required in any other case.