' MUHAMMAD FARRUKH MAHMUD, J.---The appellant Muhstaq alias Abdul Ghafoor alias Chacha, along with his wife Mst. Bashiran Bibi, was tried by the learned Additional Sessions Judge, Lahore, in case F.I.R. No,427 registered at Police Station South Cantt, Lahore, on 30-12-1996 for offences under sections 302/34, P.P.C. Vide judgment, dated 28-9-2001, the learned trial Court, while acquitting Mst.
Bashiran Bibi, convicted and sentenced the appellant as under:--
(I) For offence under section 302(b), P.P.C. To death on three counts plus payment of Rs .50,000 on each count as compensation to the legal heirs of the deceased, in default whereof to undergo S.-I.
For three months on each count;
(II) For offence under section 381, P.P.C. To undergo R.I. For seven years; and
(III) For offence under section 411, P.P.C. To suffer R.I. For three years. All the sentences were to run concurrently. The convict/appellant was also granted the benefit of section 382-B, Cr.P.C.
2. Mushtaq alias Abdul Ghafoor alias Chacha has challenged his above noted convictions and sentences through the instant appeal.
' Murder Reference No,643 of 2001 seeking confirmation or otherwise of death sentences imposed upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the case per complaint Exh.PO recorded by Muhammad Ashraf, Inspector/P.W.19, at the instance of Mst. Saeeda Akhtar Bokhari, complainant/P.W. 13, which based the registration of formal F.I.R. Exh.PG, are that the complainant along with her family members lived at Kotli Behram District Sialkot. Her daughter Mst. Afshan Afzal along with her children Saad Afzal and Zain Afzal was living at Ghazi Road, Lahore Cantt. Muhammad Afzal, the husband of Mst.
Afshan Afzal, had gone to Japan in connection with his business 15/20 days prior to the registration of the case. A servant called as Chacha, whose name was not known to the complainant, was also living in the house of Mst. Afshan. He was removed from service by Muhammad Afzal but was re- employed by Muhammad Afzal before his depature to Japan, as the latter thought it necessary to have a servant in his house in his absence. A few days earlier when the complainant came to the house of her daughter's house, the aforesaid servant Chacha was present in her house. On 30-12- 1996 she was informed by Dr.' Nasir Aziz that the house of her daughter was locked and bad smell was coming from inside, so she should rush to Lahore, whereupon she along with Dr. Irfan and Hamid Qureshi/P.W.16 reached the bungalow of her daughter, opened the door and entered into it and saw her daughter Afshan Afzal, grandsons Saad Afzal aged 9 years and Zain Afzal aged 5 years lying dead tiding with clothes on their necks in separate rooms and the dead bodies were putrefied. Suspicion was made on the servant Chacha that he had committed the crime to take revenge. The aforesaid had disappeared. While leaving Hamid Qureshi to guard the dead bodies, the complainant along with Dr. Irfan was proceeding to police station when she came across Muhammad Ashraf, Inspector/S.H.O., at Bhatta Chowk, who recorded her statement Exh.PO.
4. On 30-12-1996, after recording and sending the statement Exh.PO of the complainant to the police station for registration of the formal F.I.R., Muhammad Ashraf, Inspector/P.W.19, went to the spot; took into possession the dead bodies of Mst. Afshan Afzal, Saad Afzal and Zain Afzal; prepared their injury statements Exh.PV, PZ and PX and inquest reports Exh.PW, PAA & PY respectively. He took bloodstained earth from the places where the dead bodies of Mst. Afshan Afzal, Zain Afzal and Saad Afzal were lying and sealed the same into parcels vide memos Exh.PE, PC and PD and then sent the dead bodies to the mortuary for post-mortem examination. On 1-1-1997 the Investigating Officer (I.O.) recorded the statement of Muhammad Afzal, husband of Mst. Afshan Afzal, who had returned from Japan and added offences under sections 201/380, P.P.C. The Investigating Officer recorded the statements of Naseer Ahmad/P.W.11 and Mobeen Saeed/ P.W.16 on 29-1997. The appellant was arrested on 31-1-1997 and on the same day got recovered 44 stolen articles P-15 to P-58 which were taken into possession vide memo. Exh.PN. On the same date, golden ring P-14, lady's wrist watch P-12 and bracelet P-13 were recovered from his personal search and the same were taken into possession through memo Exh.P.M. The aforesaid articles/jewellery were identified by Muhammad Afzal. On 10-2-1997, the appellant led to the recovery of some stolen articles, i,e, golden chain, locket and bracelet, which were taken into possession vide memo Exh. PS Muhammad Afzal also identified these articles. After completion of the investigation, the accused were sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced nineteen witnesses. Azhar Siddiqui, brother of Muhammad Afzalhusband of Mst. Afshan and father of Saad Afzal and Zain Afzal, stated that 7/8 days prior to the registration of case, he visited the house of the deceased and saw both the accused going hurriedly. Mst. Bashiran Bibi (acquitted accused) was carrying a bundle on her head. Naseer Ahmad/P.W.11 and Mobeen Saeed/P.W.17 stated about the extrajudicial confession made by both the accused before them in the house of P.W.11. Mst. Saeeda Akhtar Bokhari, complainant/P.W.13, reiterated the contents of the complaint Exh.PO which based the registration of formal F.I.R. Exh.PG. Hamid Qureshi/P.W.16 accompanied the complainant to house of the deceased, unlocked its door, entered the house and saw the.Dead bodies of the deceased in different rooms. Dr. Sabahat Javed Butt/P.W.6 conducted post-mortem examination on the dead- body of Saad Afzal on 31-12-1996 and opined that the cause of death was due to interference with respiration at the level of neck; and that the probable time which elapsed between the death and post-mortem examination was 1 to 2 weeks. A similar opinion was expressed by Dr. Javed Iqbal Khokhar/P.W.7, who, on the same date, conducted postmortem examination on the dead-body of Mst. Afshan Afzal. The opinion of Dr. Shahid Mahmud/P.W.8 was also to the same effect, who conducted autopsy on the dead-body of Zain Afzal on the same date. Muhammad Ashraf, Inspector/P.W.19, stated about the recording of statement/complaint Exh. PO of Mst. Saeeda Akhtar Bokhari/ complainant, its despatch to the police station for registration of formal F.I.R. And the investigation thereafter. Muzaffar Khan, S.-I./P.W.12, and Tallat Mahmood, retired S.-I. /P. W.18, also partly investigated the case. The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication on account ofsuspicions. However, neither he himself appeared as his own witnesses under section 340(2), Cr.P.C. Nor did he produce any witness in defence.
7. Learned counsel for the appellant submits that it was an unwitnessed occurrence; that the witness produced in order to prove extra-judicial confession contradicted each other on almost all the material points; that the recovery evidence was not only unreliable but during trial the stolen property was also not produced before the learned trial Court; that on the same evidence, Mst.
Bashiran Bibi was acquitted, while the appellant was convicted; and that the prosecution case was replete with doubts.
8. Conversely, the learned counsel appearing on behalf of the State have submitted that the witnesses were independent, non-inimical and had no interest to implicate the appellant in a false case; that the prosecution has successfully proved its case through independent and strong circumstantial evidence consisting of Wajtakkar, extra-judicial confession and recoveries. They support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. It was an unwitnessed occurrence. The law was set in motion by Mst. Saeeda Akhtar Bokhari P.W.13, the mother of Mst. Afshan Afzal and grandmother of Saad Afzal and Zain Afzal, the deceased. She was resident of Sialkot and went to the house of the deceased after receipt of information on telephone along with Dr. Irfan and Hamid Qureshi/ P.W.16. The door of the house was opened and dead bodies of Afshan, Saad Afzal and Zain Afzal were seen lying in different rooms.
She showed her strong suspicion against Mushtaq appellant, who had been servant of Muhammad Afzal, husband of Afshan-deceased, and was dismissed and was subsequently re- employed before Afzal's departure to Japan. The matter was reported to the police at Bhatta Chowk at 11-30 a.m. On 30-12-1996. After registration of case, the Investigating Officer (I.0.) reached the spot and sent the dead bodies of the deceased to the mortuary. According to the medical evidence, all the dead bodies were putrefied and the death had taken place due to interference with respiration at level of neck. According to the opinion of the three doctors, P.Ws. 6, 7 and 8, the death had occurred 1 to 2 weeks prior to the post-mortem examination.
11. Azhar Siddiqui, who is brother of husband of Mst. Afshan deceased, appeared as P.W. 10 and stated that 7/8 days prior to 30-12-1996 at about 10-00 a.m., he saw Mushtaq/appellant and his wife Mst. Bashiran Bibi going hurriedly. Mst. Bashiran was carrying a bundle on her head. On his inquiry, the appellant and his wife informed him that Mst. Afshan Afzal had gone to Silakot, therefore, they were leaving for their houses after locking her house. Strangely after hearing the news, hecame back to his house and did not inquire about the welfare of his sister-in-law/brother's wife ,Mst. Afshan Afzal and her children till he received telephone call. During cross-examination, he admitted that the distance between his house and that of the deceased was about twenty B kilometers. When he was confronted with the situation that Bhatta Chowk was a very busy place, he came out with the explanation that he was going on foot, while in his examination-in-chief he stated that at about 10.00 a.m. He and his brother Muhammad Ajmal were going to see his brother's wife and children. He never mentioned that he was going on foot. It is not believable that the witness would go to the house of his brother, which was at a far-off distance, on foot and would return without making any inquiry. He also did not inquire from Mst. Bashiran Bibi as to what was being carried in the bundle, which, according to him, was of large size. The other witness Muhammad Ajmal who was allegedly accompanying him, did not appear before the trial Court.
The statement of this witness is also against the facts narrated by Mst. Saeeda Akhtar Bokhari/complainant in her statement.
12. Naseer Ahmad/P.W.11 and Mobeen Saeed/P.W.17 furnished the evidence of extra-judicial confession having been made before them by the accused in the house of Naseer Ahmad. The statements of both the P.Ws. Are mutually destructive, being replete with contradictions. According to Naseer Ahmad, at about 8-00 p.m. On 29-1-1997. Mushtaq and his wife came together, while Mobeen in his examination-in-chief never mentioned the name of Mst. Bashiran Bibi. According to Naseer Ahmad the house of Mobeen Saeed was situated after 3/4 houses, while Mobeen Saeed stated that he lived in Sialkot. On the day the confession was made, he reached Lahore at 3-00 p.m. And left for Sialkot at about 9-30 p.m. According to Mobeen Saeed, Mushtac remained with them for 5/6 minutes and did not give any details of the ccurrence. According to Naseer Ahmad, Mst. Bashiran Bibi and Mushtaq jointly confessed their guilt, while, as noted above, according P.W.1 Mobeen Saeed, it was Mushtaq who had gone to the house of Naseer Ahmad and left after 5/6 minutes. Both the witnesses made no efforts to apprehend the accused. According to Naseer Ahmad, on the next day he and Mobeen Saeed went to R.A. Bazar and there Mobeen Saeed lodged a report about the confession of the accused with the police, while according to Muhammad Ashraf/I.O., he had recorded the statements c I both these witnesses on 29-1-1997, the day when the alleged confession was made. In these circumstances, the statements of both the P.V are not worthy of any credence.
13. The appellant was arrested on 31-1-1997 by Muhammad Ashraf, Inspector/P.W.19. At the time of arrest, lady watch chain and ring wererecovered from the appellant during his personal search.
Thereafter the recovery was affected of 44 household items from the residential room of upper storey of a rented house situated in village Amar Sadhu (Bhatta Chowk). Subsequently, the investigation was entrusted to Tallat Mahmood, S.-I./P.W.18, who effected recovery of locket and bracelet from the residential house of appellant situated in Kachi Abadi, Sanda. Tallat Mahmood/S.-I. Also effected recoveries of allegedly stolen articles at the instance of Mst. Bashiran Bibi (acquitted accused) from a rented house situated at Baidian Road. At the time of all these recoveries, independent witnesses of the locality were not associated. In most of the recoveries, Muhammad Afzal husband of Mst. Afshan and his brother Muhammad Ajmal were shown to be the witnesses who did not appear before the learned trial Court. It is also noteworthy that the stolen articles were not produced before the learned trial Court. The appellant was a poor man who earned his living as a servant. It is not believable that he lived in more than one houses. One recovery has been effected from a residential house situated in village Amar Sadhu. The other recovery has been effected from Kachi Abadi situated in Sanda. The recoveries from Mst. Bashiran Bibi were effected from a house situated at Baidian Road. It is also not believable that the appellant was carrying the stolen articles in his pocket after a month of the registration of case. He was not arrested while he was selling the stolen property to some jeweller, rather he was arrested from outside the gate of General Hospital. The fabrication and the dishonesty on the part of Tallat Mahmood, S.-I./P.W.13, was brought on the record of the case. The prosecution failed to prove the recoveries to the judicial satisfaction.
14. Not a single witness from the locality was produced before the learned trial Court to prove that the appellant was re-employed by Muhammad Afzal prior to his departure to Japan or he was seen in the house of Muhammad Afzal prior to the occurrence. The witnesses implicated Mst.
Bashiran, wife of the appellant, as well. On the basis of same evidence, she was acquitted and her acquittal has not been challenged. No independent reliable corroborative evidence against the appellant is available to distinguish his case from that of Mst. Bashiran Bibi. No one can be convicted on the basis of suspicions and presumptions however strong they may be. For conviction, proof is required which is lacking in the instant case.
15. For the foregoing reasons, this appeal is allowed and the judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges. He would be released forthwith if not required in any other case. The death sentence is Not confirmed. The Murder Reference is answered in the negative.