' IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Criminal Appeal. No.134 of 2004, filed by Sabir Ali alias Kaka (appellant) against his conviction through which the learned Sessions Judge, Kasur had convicted him under section 302(b)/34, P.P.C. And sentenced him to imprisonment for life with the direction to pay fine of Rs.50,000 or in default the reof to further undergo two years' imprisonment. The appellant was further directed to pay Rs.50,000 as compensation to the legal heirs of Muhammad Ashiq (deceased) under section 544-A, Cr.P.C. Or in default thereof to further undergo six months' S.-I, The appellant was also given the benefit under section 382-B, Cr.P.C.
2. The occurrence in the present case had allegedly taken place on 6-1-2003 at 1-00 a.m. Within the territorial jurisdiction of Police Station Saddar Kasur and the matter was reported by Muhammad Sadiq, complainant (P.W.9) real brother of the deceased at 10-30 a.m. Through statement (Exh.P.B.) on the basis of which formal F.I.R. No.3 of 2003 (Exh.P.B./1) was drafted by Muhammad Shafi, S.-I. (P.W.14) on the same day at the police station.
3. The brief facts as narrated by Muhammad Sadiq complainant (P.W.9)/real brother of Muhammad Ashiq (deceased) in the F.I.R., (Exh.P.B./1) are, that he was resident of Gulberg Colony, Kasur and his younger brother Muhammad Ashiq aged about 37/38 years had rented his house to Inayat. Machhi and his brother, while Muhammad Ashiq was living with the complainant. On 5-1- 2003 at about 11-00 a.m. The complainant and his brother Muhammad Ashiq were present in the house along with Yousaf and Haroon Babar. In the meanwhile Inayat Machhi and his unknown brother came there and took deceased along with them. At about 9-00 p.m, when Muhammad Ashiq (deceased) did not come back home, his mother went to the house of Inayat Machhi etc. In search of his son (deceased), where woman-folks told the mother of the deceased that Inayat Machhi, etc., had not come to the house and till night Muhammad Ashiq did not return to his house, On the next day at about 6-00 a.m. Complainant and his mother went to the house of said Inayat.
Machhi, but they found the said house locked. Thereafter, the complainant and his mother started the search of Muhammad Ashiq (deceased). Resultantly, they found the dead body of Muhammad Ashiq lying in a vacant plot opposite to Jawad Town near Paradise Hotel, Kasur for which the complainant, his father Khushi Muhammad and Muhammad Yousaf P.Ws. Went there and identified the same. It was suspected that Inayat Machhi along with his brother had committed his murder.
4. After recording the statement (Exh.P.B.) of complainant Muhammad Sadiq real brother of the deceased (P.W.4) and chalking out of the F.I.R. (Exh.P.B./1), Muhammad. Sharif, Investigating Officer (P.W.14) went to the place of occurrence along with the police officials, where he inspected the dead body of the deceased, prepared inquest report (Exh.P.K.), injury statement (Exh.P.L.) and also drafted an application for postmortem examination (Exh.P.M.) of the deceased. Thereafter he sent the dead body of the deceased to the mortuary through constables for post-mortem examination.
Thereafter, he collected and secured bloodstained earth through recovery memo. Exh.P.G. He also took into possession crime empty P-7 and live bullet P-8 from the place of occurrence vide recovery memo. Exh.P.F. To be attested by the P.Ws, and he recorded the statements of witnesses under section 161, Cr.P.C. On 7-1-2003 , Abdul Maj id , Constable produced before the Investigating Officer last-worn clothes of the deceased P.1 to 4 along with a sealed phial, which he took into possession vide recovery memo Exh.P.H. Thereafter, he took draftsman and went to the place where the dead body was found, for, preparing scaled plan. The draftsman took rough notes on 6- 1-2003 and on 12-1-2003 and then the draftsman handed over site-plan Exh.P.A. And Exh.P.A./1 to the Investigating Officer. Then Muhammad Sharif S.-I./ Investigating Officer was transferred and investigation was handed over to Muhammad Islam-udDin, S.-I./Investigating Officer (P.W.13), who conducted the raid for the arrest of the accused persons in their houses repeatedly. Thereafter, he recorded the supplementary statement of Muhammad Sadiq complainant (P.W.9) in which he nominated Sabir Ali alias Kaka (appellant), who was arrested on 18-4-2003 by this Investigating Officer. The appellant during the investigation, made his defence version, which was recorded and then Investigating Officer got the physical remand of the appellant, who during the investigation led to the recovery of Safa P-5 and string P-6 from the house of the deceased on 21-4-2003, which were taken into possession vide recovery memo. Exh.P.C. And Exh.P.D. Duly signed by Khushi Muhammad (P.W.11) real brother of the deceased. He also prepared the rough site-plan or place of recovery of both these articles Exh.P.C./1. On 23-4-2003, the appellant led to the recovery of Pistol P- 9 from the house of Mst. Ashran Bibi (his mother), which was also taken into possession vide recovery memo. Exh.P.J. On 24-4-2003 after conducting the investigation, Investigating Officer sent Sabir Ali (accused-appellant) in the judicial look-up.
5. After the completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried.
6. The prosecution in order to prove its case produced as many as 14 witnesses.
' The last seen evidence was furnished by Muhammad Sadiq, complainant/real brother of the deceased (P.W.9) and Khushi Muhammad, father of the deceased (P.W.11). Muhammad Latif (P.W.3) and Mukhtar Ahmad (P.W.4) deposed about the extra-judicial confession allegedly made by the appellant. Sardar (P.W.7) and Muhammad Riasat (P.W.8) had seen the appellant along with his brother Inayat Machhi at Raiwind Road during the night time and on the next day the dead body of the deceased was recovered near the said place. Zulfiqar Ali (P.W.12) deposed that the appellant and his brother had asked him to arrange for a house on rent as they had committed murder of the deceased. The medical evidence was furnished by Dr. Ashfaq Muhammad Akhtar, M.O. District Headquarters Hospital, Kasur (P.W.10), who conducted the post-mortem examination of Muhammad Ashiq (deceased). However, the investigation had been conducted partly by Muhammad Sharif, S.-I. (P.W.14) and thereafter by Muhammad Islam-ud-Din, S.-I./ Investigating Officer (P.W .13). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. Who denied the allegations and professed his innocence. ' However, to a question that "why this case against you and why the P.Ws. Deposed against you?" Sabir Ali (appellant) made the following reply:-- "All the P.Ws. Are inter se related and close friends of the complainant, therefore, they have deposed falsely against me.. My brother Inayat had taken a house of deceased on rent. He has not given him the rent since about one year nor was ready to vacate it. The murder of the deceased was committed by Dilshad, etc. And some unknown dacoits. The complainant party has lodged the present case of murder against my brother and I was not nominated in the case, but later on, I was nominated in the supplementary statement of the complainant, which has no legal value. The complainant party concocted the false story of confession after about three/four months of the alleged occurrence. The complainant party remained filing applications against different persons alleging therein that the said persons committed the murder of the deceased. The deceased was an addict person, as has been admitted by the P.Ws. And one Dilshad a dacoit was his friend and his wife eloped with him and this fact has also been admitted by the complainant. In fact, it was an unseen occurrence. There is no eye-witness of the same."
' The learned Prosecutor also tendered in the prosecution evidence the reports of Chemical Examiner, Lahore Exh.P.O., Serologist, Exh.P.P. And Forensic Science Laboratory, Lahore Exh.P.Q. And closed the prosecution case. The appellant did not opt to make the statement under section 340(2), Cr.P.C. Or to produce defence evidence.
8. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant. Hence, this appeal before this Court.
9. The learned counsel for the appellant has contended that during the investigation the complainant party had nominated different persons as accused for the murder of Ashiq Ali (deceased) and this fact was admitted by Muhammad Sharif, S.-I./Investigating Officer (P.W.14); that the evidence of extra judicial confession is not reliable as the appellant had no reason to make the same and both the witnesses did not apprehend him; that both the witnesses were not previously known to the appellant and they were also not persons of means, who could get pardon for the appellant from the complainant party and they were also not residents of the same area; that the appellant was not named in the F.I.R., but no identification parade had been conducted in the present case; that there was no motive to commit the murder Vajtakkar, extra-judicial confession and recovery of weapon had been produced by the prosecution and all the said witnesses had no previous enmity with the appellant to falsely depose against him.
12. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution,
13. In the present case according to the prosecution the incident had taken place in the night between 5/6-1-2003 and when the, appellant and his brother Inayat Machhi on the preceding day had taken the deceased along with them at 11-00 a.m. And since then the deceased was missing.
The dead body of the deceased was recovered on 6-1-2003 and then the case was registered.
2. To prove the ocular account, the prosecution case rests in the circumstantial evidence, which consists of:-
(i) Last seen evidence,
(ii) Vajtakkar,
(iii) Extra-judicial Confession,
(iv) Recovery of Safa, String and Pistol, and
(v) Medical Evidence.
' To prove that last seen evidence, the prosecution produced the complainant Muhammad Sadiq (P.W.9) ahd Khushi Muhammad (P.W.Ll), real brother and father of the deceased respectively. The complainant (P.W.9) stated that at about 11-00 a.m. He along with his father and other relatives was present at his house when the appellant and Inayat Machhi coaccused (P.O.). Came there, called the deceased out- and took away the deceased out and took away the deceased with them.
A B ' Thereafter on the next day the dead body of the deceased was found lying on a soling track in a vacant plot of Jawwad Town. The complainant (P.W.9) during the examination-in-chief narrated that Khushi Muhammad, his father was also present in the house when the deceased was taken away by the accused-appellant. On the other hand, it is found that in his statement Exh.P.B./l recorded by the police he had not mentioned the name of his father Khushi Muhammad (P.W.Ll) that he was present at the time of leaving the house by the deceased in the company of the accused-appellant and co-accused. During the trial Khushi Muhammad (P.W.Ll) was also produced, who claimed that he was present at the time when the deceased had left the house in the company of the appellant and co-accused. At the trial when the complainant was duly confronted with his previous statement, who tried to improve his previous statement in order to show that his father was also witness-of last seen which seems to be dishonest improvement. Even otherwise, name of the appellant Sabir Ali was not mentioned in Exh.P.B. And admittedly he was introduced fox the first time in-the supplementary statement made on 21-4-2003 after three and half months of the incident. During the examination-in-chief he also stated that the deceased had been searched for and when they reached in the house of the appellant, the wife of Inayat Machhi co-accused was present, who stated that the deceased, appellant and Inayat Machhi (P.O.) were not available in the house. If the deceased was missing at that time why they did not report the matter to the police station immediately, but the matter was only reported after the recovery of the dead body. The fact shows that the complainant and Khushi Muhammad P.Ws. Were not present at the spot when the deceased had left the house alleged in the company of the appellant and Inayat co-accused and this story was concocted afterwards. Moreover, the appellant, had not been nominated at the A first juncture and his name for the first time was introduced after 3-1/2 months of the occurrence. In such facts and circumstances the evidence of last seen cannot be believed to the extent of the appellant and is discarded.
15. The next piece of evidence is the statements of Muhammad Latif (P.W.3) and Mukhtar Ahmed (P.W.4), who claimed that the appellant on 20-3-2003 came to them with three persons and made extra-judicial confession for the murder of the deceased and asked for getting pardon from them.
Muhammad Latif (P.W.3) during the cross-examination admitted that the complainant was his close relative and Mukhtar Ahmed (P.W.4) was his nephew. So both these witnesses were related inter se with the complainant closely. Both the witnesses were not Councillors or Lambardars of the area and previously they also did not know the appellant Sabir Ali before making the statement and they failed to disclose the parentage and place of residence of the appellant. Both these witnesses were not in a position to get pardon for the appellant from the heirs of the deceased due to their influence. The conduct of both the witnesses is that they were close relatives of the complainant and brother of the complainant was murdered but they did not make any effort to apprehend the appellant and let him to go after making the confessional statement when it is not a case of the prosecution that at that time the appellant was armed with any weapon. Even otherwise, in the extra-judicial confession allegedly made by the appellant, the details had not been disclosed by the witnesses and even the manner in which the deceased was done to death and the time and place when and where the occurrence was committed were not disclosed. Even the name of Inayat Machhi co-accused was also not mentioned by, the appellant. Moreover, the role allegedly played by the appellant during the incident was also not disclosed. It is also not on record that how and why the appellant had approached them, when they were not previously known to the appellant and also not in a position to get pardon for the appellant from the heirs of the deceased. Both these witnesses during the cross-examination have not been found truthful witnesses. The evidence of extra-judicial confession in such circumstances cannot be relied upon.
16. Next piece of evidence was recovery of pistol from the appellant from the house of his mother in the presence of Muhammad Latif (P.W.3) and Investigating Officer. Although one empty was shown to have been recovered from the spot, but there is no report about comparison of the same with the weapon allegedly recovered from the appellant. The report of the Forensic Science Laboratory (Exh.P.Q.) only discloses that the weapon was in working condition, which cannot be used as a corroborative piece of evidence. The other piece of evidence is the recovery of Safa and string, which were not stained with blood. According to the Investigating Officer these articles were usually available in the market and there was no specific identification of those articles. Hence this recovery is also useless.
17. The evidence of Sardar Ali (P.W.7) and Muhammad Riaz (P.W.8) regarding seeing of the appellant along with D his brother Inayat Machhi during night time near the place of recovery of the deceased is also not believable. P.W.7 during the cross-examination explained that his statement for the 'first time had been recorded after three months of the occurrence. He also claimed that the said factum was informed to the complainant at the time of funeral of the deceased, but it is strange that no efforts were made immediately for bringing this fact on the record when it is admitted during the cross-examination that the police was also present at the time of funeral ceremony. Even otherwise, P.W.7 was residing at a distance of 3 miles away from the place of vajtakkar, but he failed to explain any just reason for his presence at a far-flung area from his residence and there was also thick fog during the days of occurrence as admitted by P.W.7.
P.W.8 was Humzulf of P.W.7 and he admitted that he was hard of hearing and only P.W.7 had inquired about the accused about their identity and purpose of coming. They also did not visit the place of recovery of dead body of the deceased when it was recovered. Even P.W.9 and P.W.11, who were brother and father of the deceased while appearing in the Court during their examination-in- chief did not confirm the statements of P.W.7 and P.W.8, if they had informed then about the seeing of the appellant and his Inayat Machhi co-accused on the night of the occurrence near the place of recovery of the dead body.
18. The evidence of Zulfiqar All (P.W.
1.2) also cannot be used against the appellant as he was resident of Lahore and the occurrence had taken place at Kasur. He failed to disclose any reason that how the appellant and his brothers had contacted him to confess about their guilt and to ask for arranging a house for them when he was not previously known to them and he was also not dealing in the business of property.
19.In the F.I.R. No motive had been attributed to the appellant or the coaccused. Although at the trial the complainant alleged that the accused persons wanted to usurp the property of the deceased, yet there is no evidence that as to what property was belonging to the deceased and What efforts were made by the accused to usurp the same by preparing any document either. Forged or genuine. As such, the motive could not be proved and bald statement of the complainant at the trial cannot be accepted.
From the foregoing discussion, I have no hesitation in my mind that the prosecution had miserably failed to bring home guilt to the appellant beyond any shadow of doubt. Hence, this criminal appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt, who shall be released from the Jail forthwith, if not required in any other criminal case.