Above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction, Sudhnoti dated 25.5.2005, whereby the appellants were convicted and awarded 14 years simple imprisonment each under Section 302, A.P.C. and 6 years simple imprisonment each under Section 394, A.P.C.
2. Brief facts leading to the backgrounds of the appeals are that a case under Sections 302/34, 460, A.P.C. and 14, E.H.A. was registered at Police Station, Mang on the complaint of Muhammad Bashir Khan. It was reported that complainant's cousin Mst. Shamim Akhtar w/o Muhammad Sharif r/o Mang dar was residing in the house with minor son Muhammad Amir while her husband was in Pakistan for earning livelihood. On 1.5.1999 he was informed by said Muhammad Amir that last night at about 3.00; a.m. two unknown persons entered in their house, her mother resisted, upon which they fell her on the cot and killed by throttling. They also committed theft, took away cash and a juicer machine and locked the residential room while leaving the place of occurrence. Next morning he came out through a window and informed the neighbours, upon which Khanum Bibi, Yasmin, Sherin Akhtar Zia Hussain and other residents of the village came at the spot, saw the dead body and noticed signs of violence on her neck, legs and arms. The complainant came to the place of occurrence and lodged the report.
3. During investigation, the appellants were arrested by the Police and were also found guilty for commission of offence of Zina, consequently challan under Sections 302/34, A.P.C, sub-section (4) of Section 17, The offence against Property (Enforcement of Hadood) Act 1985 and sub-section (3) of Section 10, The Offence of Zina (Enforcement of Hadood) Act 1985 was submitted before District Court of Criminal Jurisdiction, Sudhnoti. On conclusion of trial, the Court convicted and awarded the aforesaid sentences to the appellants through the impugned judgment. Hence these appeals.
4. Learned counsel for the convict appellants argued that the occurrence took place during dark hours of the night. Identification of the convict-appellants was doubtful. They were not nominated in the F.I.R. During trial the only eye-witness of the occurrence Muhammad Amir failed to identify them as culprits who committed the offence, thus no direct evidence against the convict- appellants was available on record. Recovery of stolen articles was highly doubtful. The trial Court by putting reliance on confessional statements recorded under Section 164, Cr.P.0 convicted them but failed to appreciate that the same were highly doubtful. Admittedly the convict-appellants were studying in Jamia Farooqia city Sadar Road, Rawalapindi. Story regarding their travelling from Rawalpindi to Mang in Bus No, 1776-AJK on the day of occurrence was not proved. Recovery of stolen articles was fake and was concocted to establish presence of the convict-appellants at the place of occurrence and in order to strengthen the same Fiaz Gul and some other witnesses were planted by the Police. Retracted confessional statements of the convict-appellants recorded under Section 164, Cr.P.0 were not worth consideration as the same were not recorded in accordance with the Provisions of said section, moreover the version given therein by the accused was totally different from the one furnished by the complainant and other witnesses. There was nothing on record to establish that the convict-appellants came to Mang on 01-05-1999 and were present at the place of occurrence at the time the offences were committed. The prosecution miserably failed to prove its case beyond any doubt, thus conviction recorded against them was not justified in the circumstances, therefore, by accepting the appeal they may be acquitted of the charge.
5. On the other hand, it was argued that the prosecution proved its case beyond any doubt. It was established that Muhammad Akhlaq, Muhammad Imtiaz and Ali Akbar absconder hatched a conspiracy and for execution of the same the convict-appellants came to Mang and committed the alleged offences. The occurrence was witnessed by Muhammad Aamir son of the deceased, his presence at the spot was natural and undoubted and the innocent witness furnished true account of the occurrence which was supported by recovery of stolen articles at the instance of the convict-appellants. Moreover, they voluntarily got recorded their confessional statements wherein gave details of the occurrence and the statements were corroborated by other circumstantial evidence including deposition of P.Ws Abid Hussain, conductor of the bus in which they travelled from Rawalpindi to Mang and Fiaz Gul a shopkeeper who purchased the stolen juicer machine from them. The prosecution successfully established guilt of the convict-appellants during trial and in presence of strong evidence there was no justification to award lesser punishment of 14 years imprisonment to each for the offence of murder and 6 years imprisonment to each under Section 394, A.P.C, therefore, by accepting the appeal they may be convicted in accordance with law.
6. Learned Additional Advocate General supported the arguments advanced by the learned counsel for the complainant.
7. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.
8. I have heard the learned counsel for the parties and considered the record with great care.
9. The statement of P.W Muhammad Aamir was that "I know the accused present before the Court.
On 1st May, 1999 at night, I woke and saw two persons, one was tall while the other was of short height, they inquired about keys. and I expressed my ignorance, upon which by breaking the box they pulled out my mother's purse and theft watches, ornaments and cash. I made hue and cry, upon this the taller asked to stop crying and promised for bringing toys for me. They also took out a juicer machine from another box. I tried to awake my mother but the accused persons said that she will not speak as she was sleeping. They left the room and locked it from outside. Later on I came out by opening door of other room and informed the neighbours. After knowing about death of mother, I informed uncle Bashir (the complainant) about the incident."
10.The deposition shows that the witness did not see the convict-appellants killing her mother and negated the plea taken by the prosecution at the time of lodging F.I.R. that the witness informed his uncle Muhammad Bashir that the two persons entered in the house, his mother resisted, upon which they made her fell and killed by throttling, they locked the door while leaving the place of occurrence and he used window of the room for coming out of the house." Another interesting aspect was that at the time of examination the witness deposed that "he knows the accused present before the Court" but did not allege that they were the same who entered in the room and committed the offence and categorically stated that "one of the offenders was tall while the other was of short height". Thus, the part of the statement of P.W Muhammad Aamir regarding knowing the accused persons was of no importance and particularly in view of the fact that Muhammad Akhlaq convict-appellant was resident of the same village and was related to the deceased and her family, the claimed identification of the convict-appellants in the Court was not worth consideration. Moreover, the deceased aged 38 years was stout and healthy woman. She was killed by throttling as per post mortem report eight injuries were found on her person. This shows that she desperately resisted during the occurrence but the eye-witness was 'silent about it and no signs of struggle in the room where the occurrence took place were noticed by the Investigating Officer which also creates a serious doubt on truthfulness of the prosecution story.
11.As per prosecution case the occurrence took place on 01-05-1999 and convict-appellants were arrested on 16-06-1999. The police seized juicer machine from the shop of P.W Faiz Gul located near Perl view Hotel, Rawalakot on 10-06-1999 at the instance of Imtiaz Ahmed, convict in presence of Sardar Zaheer and Sardar Said Hussain attesters. It was allegedly sold by the convict-appellants to the shop keeper for Rs,500/-. Three watches were seized from the shop of Muhammad Farooq in Sadar Bazar, Rawalpindi at the instance of Muhammad Akhlaq in presence of P.Ws Muhammad Khalid and Abdul Waheed on 18-06-1999 while two gold ear rings and one finger ring was recovered at the instance of Imtiaz Ahmed convict from the house of Munshi Khan situated in City Sadar Road, Rawalpindi in presence of Muhammad Khurshid and Muhammad Shafique on 21-06- 1999. Surprisingly all the attesters were residents of Mang and some of them were related to the deceased. They claimed that by chance they were present at places of recoveries at relevant time.
Besides a considerable delay was also caused in effecting the recoveries, respectables of the locality were not asked to join the process and the Police did not bother to prepare parcels of the articles.
12.From perusal of the record it reveals that on 16-06-1999 and 28.6.1999 P.W. Ateeque-ur- Rehman son of the deceased identified the seized articles and claimed that these were stolen by convict-appellants but unfortunately no evidence showing ownership of the said articles was brought on record. Thus, evidentiary value of the above mentioned recoveries was very poor. The P.W further alleged the convict-appellants for steeling Rs, 36000/- meaning thereby that they were not short of money after committing the offence, thus there was no reason to sell the juicer machine in Rawalakot for Rs, 500/-. This shows that recovery of said articles was fictitious and was fabricated to establish the presence of convict-appellants in the area. Moreover, it appears from the evidence that the episode regarding recoveries giving impression that the articles were preserved by the possessors in wait of the Police in order to collect A the evidence against the convict-appellants was designed Besides P.W Abid Hussain, conductor of the Bus No, 1776-AJK did not mention the date on which the convict-appellants travelled from Rawalpindi to Mang, thus their presence at the place of occurrence at relevant time was not beyond doubt.
13.According to the statement of P.W. Muhammad Maroof Khan, Investigating Officer, Muhammad Akhlaq was committed to Jail on 18-06-1999 while Imtiaz was sent to judicial lock-up on 21-06-1999. Their confessional statements were recorded on 19.6.1999 and 22.6.1999 respectively.
Muhammad Akhlaq narrated that his uncle Ali Akbar absconder instigated him for commission of the offence and also promised to provide two persons for the purpose. On the night fallin between 30th April and 1st May, 1999 he alongwith Imtiaz Ahmed car e to Mang but his uncle did not fulfil his promise and there was no one to help him, however, they entered in the house of the deceased Ind committed the crime. Imtiaz Ahmed also confessed the offence till did not mention the story regarding Ali Akbar absconder and also alleged Muhammad Akhlaq for committing Zina with the deceased. Both of them admitted that they stole three watches, two ear rings, one finger ring, a juicer machine and Rs, 12000/-. Their statements were recorded by Syed Aftab Hussain Gardaizi, Assistant Commissioner, Pallandri and Salim Ullah Khan, Revenue Assistant respectively. It is interesting to note that it was claimed by the prosecution that Muhammad Akhlaq and Imtiaz Ahmed convict-appellants were brought before the aforesaid Courts from judicial lock-up for recording their confessional statements but no evidence showing their exit from judicial lock up on 19-06-1999 and 22-06-1999 was brought on record, neither the accused nor the Investigating Officer made any application for recording confessional statements, thus the question as to how they appeared before the aforesaid Magistrates on the claimed dates, was shrouded in mystery.
Even Ex.PZ and Ex.PL does not indicate that who was the Presiding Officer and in which Court they appeared for recording their statements.
Besides signatures of the Presiding Officers on both the statements were totally different from these at the statements recorded by the trial Court, thus in my view story regarding recording of the confessional statements was fake as there was nothing on record to establish that the convict- appellants appeared before S.D.M and Revenue Assistant, Pallandri on the claimed dates and got recorded their statements.
14. In light of the facts listed above, I am of the opinion that the trial Court while passing the impugned judgment failed to appreciate that P.W Abid Hussain in his statement did not mention the exact date and time he dropped the convict-appellants in village Mang, thus their presence at the place of occurrence was not proved. Eye account furnished by Muhammad Amir was not confidence inspiring, recoveries of stolen articles were incredible, confessional statements of the appellants were highly doubtful and the prosecution failed to prove its case against the convict- appellants beyond doubt, therefore, the conviction was not warranted in the circumstances.
15.Upshot of the above discussion is that the appeal filed by Ateeq-ur-Rehman, Zia-ur-Rehman sons of the deceased and Muhammad Sharif the complainant being without any substance is hereby dismissed while that filed by the convict-appellants is accepted and by extending benefit of doubt they are acquitted of the charge.