' M. NAEEMULLAH KHAN SHERWANI, J.---Rizwan Ahmad son of Aurangzeb and Irfan Ahmad son of Manzoor Ahmad along with Khalid Mehmood were tried by a learned Additional Sessions Judge, at Mandi Bahaud-Din for the murder of Tahir Mehmood who by virtue of his judgment dated 13-12- 2000 found Rizwan Ahmad and Irfan Ahmad guilty of the said charge, convicted them under section 308, P.P.C. And sentenced them to undergo rigorous imprisonment for fourteen years each and to pay Rs, 2,51,625.4 in equal shares as Diyat to legal heirs of the deceased. They were ordered to undergo simple imprisonment till full payment of Diyat.
2. Rizwan Ahmad and Irfan Ahmad, convicts have approached this Court by filing instant appeal to call in question conviction and sentence passed against them by the said learned Judge.
3. On 17-10-1998 Azhar Iqbal (P.W.3) reported to the police that on the said date about 4-00 p.m. He went to sugarcane crop of Ch. Muhammad Azam where he saw a putrefied dead body of a boy aged 14/15 years. He immediately informed Muhammad Azam and then reported the matter to Muhammad Zafrullah S.I. (P.W.14) at Chalianwala Bus Stand. The said police official after recording his statement sent the same to the police station where Report No, 23 dated 17-104998 was recorded in Rozanmcha.
4. Muhammad Zafrullah S.I.(P.W.14) rushed to the place of occurrence, prepared inquest report (Exh.PM) injury statement (Exh.PM/1) and despatched the dead body to the mortuary for autopsy purposes under the escort of Khalid Mehmood and Shabbir constables. On 23-10-1998 on the basis of Report No, 23 dated 17-10-1998 he recorded F.I.R. Exh.PD/1 without any addition or substraction on his part. On the same day Muhammad Zarait (P.W.1) appeared before him and got recorded his statement (Exh.PB). On the said date, Muhammad Zarait (P.W.1) and Mst. Rasoolan Bibi identified last worn-clothes as that of Tahir Mehmood in the presence of Muhammad Inayat and Muhammad Iqbal P.Ws.
5. Muhammad Siddique (P.W.9) also investigated the case. On 20-11-1998 he arrested Wan and Rizwan accused. On the same day on the pointation of Irfan accused he recovered chhurri (P.4) which was taken into possession by him vide seizure memo.
(Exh.PG), duly attested by Muhammad Hayat and Muhammad Anayat P.Ws. He examined all the relevant witnesses under section 161,Cr.P.C. Imdad Hussain Inspector (P. W.10) completed the investigation and submitted challan against the accused.
5A. The learned trial Judge after observing legal formalities framed charge against the accused. It was put to them to which they pleaded not guilty and claimed to be tried. Accordingly prosecution was directed to produce its evidence against the accused.
6. During trial, prosecution produced as many as seventeen witnesses against the accused whereas Riaz Hussain, S.-I. And Raza Elahi LHC No, 432 were examined as C.W.1 and C.W.2 respectively.
7. Muhammad Zarait P.W.1 is father of the deceased. Dr. Shafique Hussain (P.W.4) conducted postmortem examination on the dead body of Tahir deceased and found three injuries on his person. These injuries were caused by sharp-edged weapon. Exh.PE is postmortem report and Exh.PE/1 is pictorial diagram. Munawar Iqbal (P.W.6) is witness of last seen evidence. Sikandar Hayat (P. W.15) and Muhammad Hayat (P.W.16) are witnesses of extra-judicial confession. Their statements will be discussed in detail during reappraisal of evidence. If need be, statements of other witnesses will also be discussed.
8. Statements of the accused were recorded under section 342, Cr.P.C. In order to provide them full opportunity to explain all the incriminating evidence or circumstances appearing against them on the surface of evidence. They denied correctness of the allegations and claimed their false involvement in the case due to suspicion. Rizwan and Irfan accused produced their birth certificates as Exh.DB and Exh. DC respectively. They opted not to appear in witness-box under section 340(2), Cr.P.C. In disproof of accusations brought against them.
9. The learned trial Court minutely attended to all items of evidence for and against the appellants and pronounced verdict of guilt against them leading to their conviction and sentence.
10. Learned counsel for the appellants in his stunningly attractive arguments puts the matter like this. That it was an unseen incident and story implicating the appellants and others was manufactured subsequently by the complainant in collaboration with the police and related witnesses; that different kinds of evidence were fabricated one after the other which have been wrongly believed by the trial Court; that conclusions arrived at by the learned trial Court are not well founded in evidence.
11. Conversely learned counsel for the State assisted by learned counsel for the complainant submits that prosecution has successfully proved its case beyond any shadow of doubt against the appellants and they stood convicted rightly by the trial Court. Nothing more could be said by them while supporting this judgment.
12. I have consciously heard and soberly considered respective arguments of learned counsel for both the sides have also looked into the matter with hawk's eyes. One of the major piece of evidence is that of extra-judicial concession of Khalid since acquitted before Mazhar Iqbal (P.W.2) and Muhammad Akram given up P.W. And that of Rizwan and Irfan appellants and Anwar P.O.
Before Sikandar Hayat (P.W.15) and Muhammad Hayat (P, W.16). Another piece of evidence relates to last seen evidence furnished by Munawar Iqbal (P.W.6), recovery of chhurri (P.4) at the instance of Rizwan appellant. While re-evaluating evidence in its entirety. I would like to comment upon all pieces of evidence one by one.
13. According to Mazhar Iqbal (P.W.2) on 5-1-1999 he along with' Muhammad Akram was present at the Dera of Muhammad Zarait (P.W.1). Khalid Mehmood since acquitted came over there along with his father and established contact with them. Khalid stated before them that on 23-10-1998 he along with his co-accused namely Rizwan, Irfan was present at the Dera of Muhammad Anwar P.O.
They watched T.V. Programme till 12-00 p.m. Then Anwar committed sodomy with Tahir Mehmood deceased. Thereafter Irfan and Rizwan enjoyed their turn. Tahir Mehmood started weeping. All the three accused then took away Tahir Mehmood to board him a bus and when they came back, their clothes were stained with blood. On inquiry all the three told that they after killing Tahir Mehmood threw his dead body in a sugarcane field. They further expressed that if they unfurled this fact to any one, then he would also be killed. Khalid sought pardon from Muhammad Zarait (P.W.1). He also stated that he himself did participate in the occurrence in any manner. Zarait (P.W.1) did not forgive him. Careful scrutiny of statement of Khalid clearly depicts that it was an exculpatory extrajudicial confession. He did his best to place blame on shoulder of others to exculpate himself in the best possible manner. This exculpatory nature of extra-judicial confession is not to be believed. What way Tahir Mehmood was killed was not disclosed. Where he was killed is also not disclosed by him.
Allegation of sodomy having been committed by the appellants could not be proved by the prosecution with the help of medical evidence. Medical evidence is silent over this aspect of the matter. Trial Court also did not frame charge of committing unnatural offence with the deceased by the appellants. Doctor who performed autopsy also failed to observe any signs or symptoms of sodomy having been committed upon Tahir Mehmood deceased. Khalid has been let off by the trial Court. Blood-stained clothes of the appellants have also not been recovered by the police during course of investigation. The police enjoyed full opportunity of investigating upon all material facts but the fact remains that this incriminating evidence could not be secured.
14. To prove extra-judicial confession of Irfan, Rizwan and Anwar, prosecution examined, two witnesses namely Sikandar Hayat (P.W.15) and Muhammad Hayat (P.W.16) who are real brothers inter se. According to Sikandar Hayat (P.W.15), about two years and 6/7 days before, they approached Muhammad Zarait (P.W.1) for offering condolence of Tahir Mehmood deceased. It was about 5-00 p.m. When Rizwan, Irfan and Anwar along with Sikandar Hayat, father of Rizwan and 4/5 other persons arrived at the Dera of Muhammad Zarait (P.W.1). Rizwan was the first to state that they had come to know that Muhammad Zarait, father of Tahir Mehmood deceased had set the State functionaries into motion by getting a murder case registered against them and they had come to seek pardon from him. Rizwan stated that on 13-10-1998 they took Tahir Mehmood to Chalianwala at the Dera of Masood Raza Gujjar where they continued watching T.V. Programme till mid-night. Anwar went to bed of Tahir Mehmood and satisfied his unnatural lust. Tahir Mehmood started weeping. All the accused stated that they too committed sodomy with Tahir Mehmood. On the following day, Tahir Mehmood was taken by them to a sugarcane field where the act of sodomy was repeated. Tahir Mehmood thereafter was killed by them. Zarait (P.W.1) refused to grant pardon for the heinous crime committed by them. Muhammad Zarait asked the accused to leave his Dera. The accused left his Dera. Muhammad Hayat (P.W.6) almost narrated same facts.
Muhammad Hayat (P.W.16) also deposed about recovery of churri (P.4) at the instance of Irfan from an unattended brick-kiln of Muhammad Azam. Recovery memo. (Exh.PG) prepared by the Investigating Officer does not in any manner show that Churn (P.4) was bloodstained. Muhammad Hayat (P.W.16) did not mention in his statement that Churri (P.4) was stained with blood. Chhurri (P.4) has been recovered after about one month of the occurrence from an unattended open place which was accessible to all. According to report of the chemical Examiner (Exh.PO), chhurri (P.4) was found to be blood-stained. During this period human blood was bound to be disintegrated. It was recovered from an uninhabited open place. The effect of atmosphere changes should not have let blood adhering to ,Chhurri. Recovery memo. Was also attested by the related witnesses. No evidentiary value can be attached to the piece of evidence. The Investigating Officer appears to have changed this affair tactfully to create corroboration in the case. It is a glaring instance of padding, done by the police. Story of extra-judicial confession narrated by Sikandar Hayat (P. W.15) and Muhammad Hayat (P.W.16) is also a manufactured piece of evidence.
It does not fit in with the circumstances of the case. The accused did not name Khalid since acquitted. Police did not associate Masood Raza Gujjar where appellants watched T.V. Programme till mid-night and achieved their ignoble design of committing sodomy with Tahir Mehmood deceased. Medical evidence lends no support to this principal fact. Muhammad Zarait (P.W.1) did not utter a word about extra-judicial Confession of the aforementioned accused in his presence before Sikandar Hayat (P. W.15) and Muhammad Hayat (P.W.16) and some others. The omission to mention this potential fact in his statement regarding extra judicial confession of the appellants before the witnesses in his presence strikes at the very root of the case. Rizwan Ahmad according to birth certificate Exh.DB and Wan' Ahmad according to (Exh.DC) were under sixteen years of age.
If the appellants had made a clean breast of their guilt before these witnesses then father of the deceased and other persons would not have permitted them to go back. They never asked the confessors as to why the crime was committed, where it was committed and by what weapon. The witnesses never asked the accused to make confession before the police. They never took them to the police station. They also did not ask them that if all that was true and real then they should make that confession before a Court of law. Critical analysis of statements of Sikandar Hayat (P.W.15) and Muhammad Hayat (P.W.16) reveals that more or less it was a joint extra-judicial confession. The witnesses tried to change the whole complexion of joint extra judicial confession by stating that it was made by the appellants turn by turn. This exercise of Muhammad Hayat (P.W.16) was effectively nullified by learned defence counsel by getting him confronted with his police statement (Exh;DA). The witnesses had never stated before the police that the appellant had confessed their guilt one after the other. Whenever a witness deliberately and dishonestly introduces some new material facts to cover up a big lacuna in the case, then his testimony is rendered unbelievable. The peculiar conduct of witnesses makes them unworthy of credit.
15. Relationship of the witnesses with the complainant is amply proved from the statement of Muhammad Zarait (P.W.1). From 2540-1998 to 2-11-1998 P.Ws. Did not disclose factum of extra- judicial confession having been made by the appellants to anyone including the police. It was imperative for the witnesses to have divulged these facts to all concerned to bring the culprits to book. Why they kept mum over such a dreadful situation, has also not been disclosed by them.
Extrajudicial confession is a weak type of evidence. In this case it is shaky, vague and full of ambiguities and improbabilities. It would not be safe to place explicit reliance upon the testimony of these witnesses. I am constrained to hold that it is a fabricated piece of evidence, which deserves no credence at all.
16. Munawar Iqbal (P.W.6) is first cousin of Muhammad Zarait (P.W.1). Other witness regarding extra- judicial confession is Zafar Iqbal, son of Muhammad Hayat (P.W.16). This witness has not been produced by the prosecution. As per statement of Munawar Iqbal (P.W.6), he along with Zafar Iqbal was going towards bus stand Mandi Baha-udDin. They saw the appellants and Muhammad. Anwar since P.O. Along with Tahir Mehmood deceased sitting in a bus bound for Kharian on 13-10-1998. On 14-10-1998 Muhammad Zarait paid him a visit and told him that his son did not return home yesterday after being free from school. Accordingly he on his asking told him that he had seen Tahir Mehmood in the company of the appellant while sitting in a bus at Mandi Baha-ud-Din. He along with others went to the Police Statidti Sadar, Mandi Baha-ud-Din where he identified clothes and Chappal of the deceased on 23-10-1998. This witness is an employee of police and was posted in S.P. Office Mandi Baha-ud-Din during days of occurrence. Being a relation of the deceased he should c have asked Tahir Mehmood as to where he was going, why and with whom. He did not make any query about this fact from Tahir Mehmood although he was so closely related with him.
The evidence of this witness is also bogus and cannot be relied. The fundamental principle in cases dependant on circumstantial evidence is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. In the instant case, necessary links in the chain of evidence are awfully missing. All pieces of evidence are left scattered like a moth. The whole lot of circumstantial evidence adduced by the police is not incompatible. With innocence of the accused.
15(sic). Conclusion arrived at by the trial Court are not in consonance with the golden principles regarding appreciation of evidence. Evidence has not been appreciated in its true perspective and conviction in this case emanates from misinterpretation of evidence and perversity of reasoning.
All that can be said in this case is that evidence is full of polluted evidence and doubts of very grave nature.
' Accordingly by accepting this appeal I quash conviction of the appellants and they are directed to be released from custody forthwith if not required to be detained in any other case.