' MUHAMMAD FARRUKH MAHMUD, J.-This judgment will dispose of Criminal Appeal No, 1517 Of 2001 filed by Muhammad Yousaf alias Ayubi, who along with Sabir Ali and Fateh Muhammad faced trial in case F.I.R. No,719, registered at Police Station Saddar Kasur, on 15-11-1999, for offence under section 302, P.P.C., before the learned Additional Sessions Judge, Kasur, who after concluding the trial, vide his judgment dated 26-9-2001, while acquitting Sabir Ali and Fateh Muhammad, convicted the appellant under section 302(b), P.P.C. And -sentenced him to Death with compensation ol'~R^50,000 or in default six months' S.I.
2. Murder Reference No,624 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.PB are that husband of Mst. Bashiran Bibi (complainant) was blind. Out of wedlock four sons and two daughters were bom. Ghulam Mustafa aged 18 years and Ghulam Murtaza aged 15 years were labourers and the responsibility of the family was on their shoulders. Ghulam Mustafa came to his house 16 days before registration of case. On that day, when Muhammad Ashraf son of Barkat Ali resident of Khai Hithar and Muhammad Hanif son of Sardar resident of Lakhnekay were also present in the house, Muhammad Yousaf alias Ayubi at about 2-00 p.m. Came there and asked Ghulam Mustafa something. Ghulam Mustafa told to the guests that they should stay in the house and he would return in the evening. At the time of departure Ghulam Mustafa was wearing Badami coloured Shalwar Qamiz and Joggers.
In the next morning the guests left the house of the complainant after waiting Ghulam Mustafa, who did not return. After waiting for three days the complainant started search for Ghulam Mustafa along with her other son Ghulam Murtaza. It is also mentioned in the F.I.R. That during that period Muhammad Yousuf came to the village secretly for two or three times. During search, on 15-11-1999 the complainant came to know that Muhammad Yahya son of Allah Ditta, Muhammad Nawaz son Of Yaqoob and Ali Ahmad son of Peyara, residents of the same village, had brought out a dead body of a youngman from the Rohi Siphon Depalpur Canal. They after identifying the dead body sent message to the complainant. The complainant and her son Ghulam Murtaza went to the spot and identified the dead body as of Ghulam Mustafa, who had sharp-edged injuries on his head and neck. The dead body become rancid due to remaining in water. Hence the matter was reported to the police.
4. The motive behind the occurrence as set down in the F.I.R. Was that Yousuf was aggrieved over the engagement of Ghulam Mustafa with daughter of Bashir Ahmad and had been opposing the marriage.
5. After registration of formal F.I.R., the investigation of the case was conducted . By Ashfaq Hussain Kazmi, Inspector/ P.W.10. He proceeded to the spot, took over the dead body, prepared inquest report Ehx.PF and sent the dead body for postmortem examination. On 18-11-1999 the complainant made supplementary statement wherein she stated that Sabir Ali, Muhammad Younus and Fateh Muhammad 1 also joined hands with Muhammad Yousuf. Hence on 17-12-1999 the Investigating Officer arrested Muhammad Yousuf alias Ayubi, Sabir Ali and Fateh Muhammad, while Muhammad Younas could not be arrested and subsequently declared proclaimed offender. While in custody, on 29-12-1999 Muhammad Yousuf led to the recovery of hatchet and Churri, which were taken into possession vide memo. Exh.PA. After completion of investigation, the accused were sent up to fact 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 reports of Chemical Examiner Exh.PH closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C. However, they produced Haji Muhammad Siddique D.W.l, Muhammad Yaqoob, D.W.2, Walayat alias Kala D.W.3 and Muhammad Safdar D.W.4. After conclusion of trial, the learned trial Court while acquitting Fateh Muhammad and Sabir Ali convicted and sentenced Muhammad Yousaf alias Ayubi-appellant as stated above.
7. After having read the entire prosecution evidence, statement of the appellant recorded under Section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that all the witnesses are inter se related; that the prosecution case revolved around the evidence of last seen, which was not reliable; that the motive could not be proved; that the evidence of recovery allegedly effected at the instance of the appellant was not worthy of any credence, as no independent witness was produced to prove the same; and that it was not believable that the accused would keep the weapons intact for about a month in his house ever after registration of case.
8. The learned counsel appearing on behalf of the State have contended that the P.Ws. Though related with the deceased had no enmity to involve the appellant in a false case; that the evidence of last seen was supported by the medical evidence and corroborated by the evidence of recovery.
They support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. The case was registered after discovery of dead body of Ghulam Mustafa son of the complainant A from Rohi Siphon Depalpur Canal. It was an unwitnessed occurrence and the prosecution case rests on the circumstantial evidence. According to.Mst. Bashiran Bibi complainant/P.W.3, who is mother of the deceased, and Muhammad Hanif P.W.5, husband of complainant's sister, 16 days prior to the registration of case Muhammad Yousaf-appellant went to the house of the deceased and said something to him. Thereafter the deceased son of the complainant after informing the inmates that he would return by evening went along with Muhammad Yousaf. The deceased did not return to the house for 16 long days yet no report was lodged at the police station. According to P..W.3, she kept waiting for her son for three days and then she started search for him. In case some hostility existed between the appellant and the deceased then firstly the deceased would not accompany the appellant and secondly real mother and father, who were alive and according to evidence were available in the house when the deceased left with appellant, would not wait for three long days. Even after three days, according to evidence, no serious efforts were made to know about the whereabouts of the deceased. The complainant stated in the F.I.R. That Yousaf-appellant visited his house 2/3 times secretly till registration of the case but he did not return to the village. However, during trial she made improvement in her statement by stating that she had gone to the house of Yousaf 3/4 times and the inmates of the house informed her that Yousaf had visited the house 3/4 times. She did state that she launched search for her son after three days but it is lacking in the evidence that relatives of the deceased were seriously concerned about his disappearance, as according to the complainant/P.W.3, she had been searching for Ghulam Mustafa in the streets and fields and could not remember the name of any person, who had met her during search. The matter was not reported to the police for 16 long days nor any Punchayat was convened nor there was any evidence that father, brother and other relatives of the deceased made any serious efforts to know about the whereabouts of the deceased. In case the deceased would have left along with the appellant then the relatives of the deceased would have straightaway gone to the house of Yousuf and in case of any suspicion they would have immediately reported the matter to the police.
Muhammad Hanif/P.W.5 lived at a distance of about 25/30 miles from the house of Mst. Bashiran Bibi and according to him, he had gone to the house of Mst. Bashiran Bibi at 2-00/2-30 p.m. On the day when in his presence the deceased went along with the appellant. Strangely he was never informed about disappearance of the deceased despite his close relationship with Mst. Bashiran Bibi and the deceased. During cross-examination he stated that he along with Barkhurdar, Ashraf Munsif and Aslam went to the house of Mst. Bashiran Bibi after three days of the discovery of dead body. He further admitted that he did not participate in the funeral ceremony. To establish that the deceased left with the appellant, the prosecution also produced Barkhurdar, real father of the complainant and grand-father of the deceased as P.W.6. According to him, he saw the deceased in the company of Yousuf-appellant, Younas, Fateh Muhammad and Sabir. Sabir and Fateh Muhammad were acquitted by the learned trial Court while Younas was not tried. He further stated that he had seen Ghulam Mustafa in the company of the accused 15/16 days prior to the recovery of dead body. During cross-examination he stated that he had told this fact to Mst. Bashiran Bibi three days after discovery of the dead body. The question would be that in case Ghulam Mustafa had left his house along with appellant after informing the parents that he would return by evening, would the parents not inform the real grandfather about disappearance of their son for 16 long day. It is also noteworthy that from the date of his leaving till the discovery of his dead body no independent witness saw the deceased and the appellant together. In these circumstance, it is difficult to believe that the deceased left his house in the company of the appellant.
10. It was alleged in the F.I.R. That the appellant was aggrieved over the engagement of the deceased , with daughter of Bashir Ahmad. Why he felt aggrieved was not mentioned in the F.I.R.
During trial the complainant denied that Yousuf, was a married man and had a child aged about 7/8 years. According to her, Yousuf was maternal uncle of the fiancee of the deceased and he intended to get himself married after giving the hand of his 'Bhanji' in 'Watta' (exchange). She also denied that name of wife of Yousaf was Razia. On the same point Muhammad Hanif/P.W.5 admitted that Yousuf was father of a boy of 7/8 years. Barkhurdar/ P.W.6, who is father of the complainant, also admitted that Yousuf was married about 8/9 years ago and he had a son.
However, he had added that Yousuf had divorced his wife. He never stated that Yousuf wanted to remarry with fiancee of the deceased after giving the hand of his 'Bhanji' in exchange. In the above noted circumstances, it can safely be said that the motive was concocted by the complainant and no* ill-will or enmity existed between the deceased and the appellant.
11. The appellant was arrested on 17-12-1999. He remained in physical custody of the police till 29- 12-1999. On that date, allegedly, he led to the recovery of hatchet and Chhurri from a 'Kacha' room, which had no roof. Both the weapons, according to recovery memo., were blood-stained. In order to prove the recovery Nasrullah/P.W.l, who was 'Khalu' of the deceased and sister's husband of the complainant, was produced. He was resident of a place which was at a distance of 20 miles from the place of recovery. The other witness, who attested the recovery memo, but was produced before the learned trial Court, was also related to the deceased and resided at a distance of 20 miles. Provisions of section 103, Cr.P.C. Have been violated by the Investigating Officer.
12.
12. The deceased had only two injuries on his body, which were of different .Dimensions. It was for that reason the Investigating Officer in his own wisdom thought it fit to show the recovery of two different weapons. The deceased was a boy of 18 years of age. There was no need for the assailants to carry two different weapons and to cause one injury by each weapon to take life of the deceased. It is also not believable that the accused, would keep blood-stained weapons intact till his arrest, which was effected after more than a months of registration of case. After taking full precautions that the crime should not be detected and throwing the dead body in the canal it is most unlikely and oppose to common sense that the assailant would bring back the weapons used during the occurrence and keep them safe so as to present them / as souvenir to the Investigating Officer. It is obvious that the recovery was planted in order to provide corroboratory evidence.
13. According to medical evidence the deceased lost his life due to injuries, which were caused by sharp-edged weapon. However, according to doctor, the time elapsed between death and post- mortem was 2 to 3 weeks. The medical evidence cannot be used against the appellant as it provides no clue about the killer, who caused the injuries.
14. For what has been discussed above we are of the view that prosecution failed to prove its case against the appellant beyond reasonable doubt. Having come to this conclusion there is no need to look into the defence evidence: Consequently, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges. He would be released from Jail forthwith, if not required in any other case.
15. Murder Reference is answered in the negative. Death sentence is not confirmed.