' KAZIM ALI MALIK, J.---We find it convenient to dispose of Murder Reference No,311 of 2003 and Criminal Appeals Nos.136, 144 and 268 of 2003 arising out of judgment dated 28-2-2003 by a learned Additional Sessions Judge, Vehari in a case F.I.R No,173 of 2002 registered with Police Station Saddar Vehari through this consolidated judgment.
2. The appellants stand convicted and sentenced vide judgment, now under challenge, as under:--
1. Muhammad Anwar
(i) Convicted under section 302(b), P.P.C. And sentenced to death as Tazir. He was also directed to pay Rs, 50,000 as compensation to heirs of the deceased under section 544-A, Cr.P.0 and in default thereof to undergo simple imprisonment for four months.
(ii) Convicted under section 201, P.P.C. And sentenced to five years simple imprisonment with a fine of Rs,20,000 and in default thereof to suffer simple imprisonment for four months.
(iii) Convicted under section 148, P.P.C. And sentenced to two years' imprisonment.
2. Naseer Ahmad
(i) Convicted under section 302(b) read with section 149, P.P.C. And sentenced to life imprisonment as Tazir. He was also directed to pay Rs, 50,000 as compensation to heirs of the deceased under section 544-A, Cr.P.C. And in default thereof to undergo simple imprisonment for four months.
(ii) Convicted under section 201, P.P.C. And sentenced to five years simple imprisonment with a fine of Rs,20,000 and in default thereof to suffer simple imprisonment for four months.
(iii) Convicted under section 148, P.P.C. And sentenced to two years' imprisonment.
3. Muhammad Ramzan
(i) Convicted under section 302(b) read with section 149, P.P.C. And sentenced to life imprisonment as Tazir. He was also directed to pay Rs, 50,000 as compensation to heirs of the deceased under section 544-A, Cr.P.C. And in default thereof to undergo simple imprisonment for four months.
(ii) Convicted under section 201, P.P.C. And sentenced to five years' simple imprisonment with a fine of Rs,20,000 and in default thereof to suffer simple imprisonnent for four months.
(iii) Convicted under section 148, P.P.C. And sentenced to two years' imprisonment.
4. Mst. Fazeelat Bibi
(i) Convicted under section 302(b) read with section 149, P.P.C. And sentenced to life imprisonment as Tazir. She was also directed to pay Rs, 50,000 as compensation to heirs of the deceased under section 544-A, Cr.P.C., and in default thereof to undergo simple imprisonment for four months.
(ii) Convicted under section 201, P.P.C. And sentenced to five years' simple imprisonment with a fine of Rs,20,000 and in default thereof to suffer simple imprisonment for four months.
(iii) Convicted under section 148, P.P.C. And sentenced to two years' imprisonment.
5. Mst. Naziran
(i) Convicted under section 302(b) read with section 149, P.P.C. And sentenced to life imprisonment as Tazir. He was also directed to pay Rs, 50,000 as compensation to heirs of the deceased under section 544-A, Cr.P.C., and in default thereof to undergo simple imprisonment for four months.
(ii) Convicted under section 201, P.P.C. And sentenced to five years simple imprisonment with a fine of Rs,20,000 and in default thereof to suffer simple imprisonment for four months.
(iii) Convicted under section 148, P.P.C., and sentenced to two years imprisonment.
2. The prosecution case set up in the F.I.R., in brief, is that Rustam Ali, a younger brother of Hashmat Ali complainant, was married to Mst. Rashidan Bibi. Mst. Fazeelat, Mst. Naziran (appellants); Mst.
Farzana, Imran (12) and Rehman (9) were born out of this wedlock. Mst. Rashidan Bibi died about 8/9 years before 28-4-2002. Aforementioned daughters of Rustam Ali indulged in immoral activities. Rustam Ali used to forbid them unsuccessfully. About seven months before lodging of the F.I.R. Rustam Ali married his daughters Fazeelat and Farzana and also engaged Mst. Naziran. Mst.
Farzana had been living with her in laws at Faisalabad since her marriage whereas Fazeelat and Naziran were with the complainant in his residential Chak of District Vehari. About six months before registration of the case Rustam Ali returned home at night and was killed by his daughters Mst. Fazeelat and Mst. Naziran with the help of her paramours Muhammad Anwar, Naseer Ahmad and Muhammad Ramzan. After killing Rustam Ali, all the said five accused persons buried the dead body in chaff store. On the following day Hashmat Ali, complainant and his brother's son Ata Ullah reached the house of Rustam Ali, deceased, and enquired from his daughters Mst. Fazeelat Bibi and Mst. Naziran Bibi about his whereabouts. They furnished wrong and misleading information that Rustam Ali had left the house at night after having disowned them (Fazeelat and Naziran). The complainant searched for his missing brother Rustam Ali unsuccessfully and then informed Mst.
Farzana at Faisalabad, who reached the spot on the following day along with her father-in-law Hadayat Ali and thereafter left for Faisalabad again along with Fazeelat and Naziran and their brother Rehman. After 6/7 days of their arrival at Faisalabad Mst. Fazeelat was sent to the house of her husband in Chak No,445 EB, Burewala. Mst. Naziran and Rehman also accompanied Mst.
Fazeelat at the time of her Rukhsati. In this way only Imran son of Rustam Ali deceased remained all alone in the native house. It so happened that Imran, his uncle Hashmat Ali and a cousin Ata Ullah had been taking out old chaff from the store, when they spotted human skull. They dug floor of the store, disinterred skeleton of Rustam Ali and then lodged the F.I.R. On 28-4-2008 at 9-30 p.m., about the occurrence, which took place six months before.
3. On 29-4-2002 Dr. Muhammad Abdullah, P.W-1, conducted autopsy on the dead body, which was identified as that of Rustam Ali and observed that it was a skeleton packed in a piece of cloth.
Scalp membrane, brain, and spinal cords were absent. Skull was completely devoid of soft tissues.
Only ribs and thorax vertebrae were present. Abdominal contents were also missing. The skeleton was not identifiable. The post mortem examiner recorded his report Exh.PB but without forming any opinion about the cause of death.
4. After recording of the F.I.R., Exh.PL, Abdul Sattar, S.I., P.W-9, reached the spot and prepared injury statement Exh. PC, inquest report Exh. PD in respect of the skeleton and dispatched it to mortuary at Vehari for autopsy. He claimed to have secured blood stained earth from the spot under memo Exh.PO. He prepared rough site plan Exh.PW. After post mortem examination the escorting constable brought back Shalwar P.5, Saafa P.6 both blood-stained, which were taken into possession vide memo Ex.PM.
5. On 13-5-2002 the Investigator arrested Mst. Fazeelat and Mst. Naziran, daughters of Rustam Ali, deceased and on 15-5-2002 they led to the recovery of cot, P.8 and pillow, P.9 from their residential house, which were taken into possession vide memo Exh.PR. They also pointed out the place of murder and burial of their deceased father for which the I.0 prepared memos Exhs.PP and PQ. On 19-5-2002 Muhammad Anwar and Naseer Ahmad, accused, were arrested. On 21-5-2002 Muhammad Anwar, accused pointed out the place of burial of the deceased and place of murder vide memo Exh. PT. Naseer Ahmad, accused, also pointed out place of occurrence in a similar way vide memo Exh.PS. Blood-stained Kassi, P.10 had also been recovered at the instance of Muhammad Anwar, accused, from the house of deceased, which was taken into possession vide memo Exh.PU. Muhammad Anwar, deceased, got recovered revolver .32 bore, P.I, along with two live cartridges, which were seized vide memo Exh.PE. Naseer Ahmad, accused, led to the recovery of gun 12 bore P.3, which was taken into possession vide memo Exh.PF. On 23-5-2002 Naseer Ahmad, accused, led to recovery of blood-stained dagger from his residential house, which was taken into possession vide memo Exh.P.O. On 22-5-2002 Muhammad Ramzan, accused, was apprehended and on 26-5-2002 he got recovered dagger, P.I from his residential house, which was seized through memo Exh.PN.
6. At inception of trial, the accused persons were charged under section 148, P.P.C. For having formed an unlawful assembly while armed with dagger, gun and pistol, which resulted in violence; under section 302 read with section 148, P.P.C. For having committed Qatl-i-Amd of Rustam Ali in prosecution of common object of unlawful assembly and under section 201, P.P.C. For having screened off themselves of the offence. The accused persons denied the charge and claimed trial.
7. The prosecution got examined 13 witnesses in all. Dr. Muhammad Abdullah, P.W-1, proved his report Exh.PB about skeleton subjected to autopsy. Muhammad Ashraf, constable, P.W-2, transmitted sealed parcels of blood-stained Kassi and dagger to the concerned office for analysis.
Muhammad Ijaz, constable, P.W-3 attested recovery memos in respect of .32 bore revolver, P.I, gun 12 bore, P.3 and dagger, P.4. .Ghulam Hussain Sabir, draftsman, P.W-4 prepared scaled site plan Ex.PJ. Wazir Khan, Muharer, P.W-5, drew up formal F.I.R. And kept sealed parcels in safe custody till their onward transmission to the concerned office. Muhammad Ahmad, constable, P.W-6 got post mortemed the dead body and also attested recovery memos of last-worn clothes and dagger, P.7.
Hashmat Ali, P.W-7, made statement in line with his version already set up in the F.I.R. He also attested recovery memos of blood-stained earth, last worn clothes and pointing out of the spot. 10 years old Rehman son of Rustam Ali (deceased) and real brother of Mst. Fazeelat and Mst. Naziran Bibi (appellants) entered the witness box as P.W-8 and claimed that his above mentioned sisters had developed illicit intimacy with their co-accused Muhammad Anwar, Naseer Ahmad and Muhammad Ramzan and that he had been transmitting love messages between them. The P.W further claimed that in his presence Mst. Fazeelat and Mst. Naziran administered tablets to their father Rustam Ali in cooked meal as a result of which he went asleep and thereafter all the accused persons killed him and buried the dead body in the chaff store. Abdul Sattar, SI, P.W-9, proved his investigation. Muhammad Hanif, P.W-10, deposed about extra judicial confession allegedly made by Muhammad Anwar, accused, to the effect that he along with his co-accused persons killed the deceased Rustam Ali and buried the dead body. Muhammad Ashraf, P.W.11, claimed that Muhammad Ramzan, accused, confessed his guilt before him. Abdul Jabbar, constable, P. W-12, transmitted two sealed parcels pertaining to this case to the concerned offices.
He also attested recovery memo of dagger, P.7. Najabat Ali, P.W-13, deposed that Ahmad, accused, confessed his guilt before him to the above effect.
9. When examined under section 342, Cr.P.C. The accused persons denied and dismissed each piece of prosecution evidence put to them. They got examined Muhammad Aslam D.W-1 while Muhammad Anwar, accused, himself made a statement on oath in terms of section 340(2), Cr.P.C.
In disproof of the allegation. He also brought on record documents i.e, Nikah Nama of Mst. Farzana Exh.DG, Nikah Nama of Mst. Fazeelat Exh.DH, birth entry of Rehman, P.W, Exh.DJ, and two photostat copies of applications by Hashmat Ali and Khuda Bakhsh, father of Muhammad Anwar, accused.
10. It was a blind murder. The prosecution case rests on different circumstantial pieces of evidence.
We propose to examine and analyze each piece of evidence separately.
11. Muhammad Ijaz, Constable, P.W-3 and Abdul Sattar, Investigator, P.W-9, deposed that Muhammad Anwar and Naseer, appellants, got recovered .30 bore revolver, P.I and gun .12 bore, P.3 respectively. The learned Law Officer termed the recovery of pistol and gun as a corroborative piece of evidence in support of the charge of murder. For two reasons the contention is misconceived and devoid of legal force. Firstly, no crime empty was found or seized from the spot during the course of investigation, which could match with the test empties prepared from the revolver, and gun, P.3. The alleged recovery of fire-arms being inconsequential is of no legal significance. Secondly, the prosecution completely failed to prove as to what was cause of death of the deceased. The post mortem examiner recorded in his report and deposed at trial that he could not form any opinion about cause of death. As the medical evidence is not in support of the charge, therefore, recovery of revolver and gun, even if believed for the sake of arguments, would not advance the prosecution case successfully. We, therefore, exclude this piece of evidence from consideration.
12. Muhammad Ijaz, Constable, P.W.3, Muhammad Ahmad, Constable, P.W.6 and Abdul Sattar, Investigator, P.W.9 deposed that on 23-5-2002 Naseer, appellant, led to the recovery of bloodstained dagger P.4, which on chemical analysis was found stained with human blood. In the opinion of Law Officer, it was another piece of evidence in support of the charge. We could not persuade ourselves to attach any importance to the argument. Allegedly, the deceased was killed six months before 28-4-2002. According to prosecution itself it was blind murder and that is why disappearance and killing of the deceased could not be reported to the Police for six months. The claim of Investigator and recovery witnesses that on 23-5-2002 Naseer, appellant, got recovered bloodstained dagger, P.4 from his residential house appears to be ridiculous. How can we believe that Naseer, appellant, was so fool that he chose to preserve the blood-stained dagger, P.4 in his house for about 1-1/2 year? The available record does not tell nor the learned Law Officer was in a position to explain during the course of arguments as to what were the special circumstances which persuaded and compelled Naseer, appellant, to keep the blood stained dagger intact in his house for 1-1/2 years. Had the appellant killed the deceased with dagger P.4, he would not have preserved the weapon of offence for 1-1/2 years and would have either destroyed or at least washed away the blood from its blade. The recovery of dagger in the circumstances is not worthy of credence and is, therefore, ignored.
13. Hashmat Ali, complainant, P.W.7 and Abdul Sattar, Investigating Officer, P.W-9 deposed that Mst.
Fazeelat and Mst. Naziran pointed out the place of murder of their father after their apprehension on 15-5-2007. They further deposed that on 21-5-2002 Naseer and Anwar led the Investigating Officer to the spot of murder and pointed it out by saying that he along with his co-accused killed the deceased there. According to the witnesses Muhammad Ramzan pointed out the spot in the above said manner on 23-5-2002. The learned Trial Court made this piece of evidence a basis for impugned conviction and sentence of the appellants. It is the prosecution case as set up in the F.I.R. And deposed by Hashmat Ali, complainant at trial that on 28-4-2002 he spotted human skull inside the chaff store while removing chaff from there and then unearthed the dead body of his brother, Rustam Ali, which was subjected to autopsy in mortuary at Vehari on 29-4-2002. We cannot understand as to how and why the alleged pointing out of the spot by the appellants in May, 2002 was treated as valid piece of evidence from where the dead body had already been taken out in April, 2002. To a question as to why pointing out of the spot in May, 2002 could be considered as legal evidence against the appellant, when the dead body had been unearthed from there by the complainant in April, 2002, the learned Law Officer was possessed with no answer and explanation. The alleged spot had already been visited/inspected by the complainant, other witnesses and the Investigator many times before the alleged pointation. We, therefore, feel no difficulty in concluding that the alleged pointing out of the spot was neither legal evidence nor it could be made a basis for conviction on capital charge.
14. The learned Law Officer vehemently argued that the dead body had been unearthed from the house, which remained in exclusive possession of Mst. Fazeelat and Mst. Naziran, appellants and in absence of any explanation from them as to why the dead body of their father had been buried there, the factum of burial and disinterment of the dead body from the house provided a valid basis to record their conviction on the charge of murder. This argument is not receiving support from the record. Rustam Ali, deceased, left behind three daughters; namely, Farzana, Fazeelat and Naziran besides two sons Imran (given up P.W.) and Rehman, P.W-8. Hashmat Ali, complainant, a real brother of the deceased, alleged in the F.I.R. And deposed at trial that Mst. Farzana had been married seven months prior to the lodging of F.I.R. And she had been residing with her husband at Falsalabad since her marriage. The alleged occurrence took place five months before lodging of the F.I.R., which means that Mst. Farzana, daughter of the deceased, was at Faisalabad with her husband when her father suffered death in Chak No, 75 WB , District Vehari. Regarding Fazeelat and Naziran, appellants, it was claimed by their uncle Hashmat Ali, complainant, that the former was married without "Rukhsati" while the latter was engaged and that at the relevant time they both were present in the house of their father Rustam Ali from where his dead body was unearthed on 28-4-2002. I take up the case of Mst. Fazeelat, appellant. She brought on record a copy of her Nikah Nama Exh.DH. According to which, she was married to Muhammad Imran on 13-7-2001 instead in the month of September, 2001 as claimed by Hashmat Ali, complainant, while lodging the F.I.R.
Secondly, she was not present in the house of her father, when the dead body had been spotted or recovered by the complainant. At that time she was residing with her husband at a far away place as admitted by the complainant at trial. The same position was regarding the case of Mst. Naziran, who as per complainant's version had been married before disinterment of the dead body and registration of the case. Undoubtedly, the house from where the dead body was recovered was in exclusive possession of brother of Mst. Fazeelat and Naziran, appellant, therefore, the appellants were not under obligation to explain as to how the dead body had been buried there. The onus, if any in this regard lies on their brothers, who had been in exclusive possession of the house at the relevant time. We are therefore, of the view that the recovery of dead body from the house of deceased does not connect Mst. Fazeelat and Mst. Naziran, appellants, with the charge.
15. Muhammad Hanif, P.W-10, deposed that on 19-5-2002 at about 6-15 a.m., he was present at his Dera, when Muhammad Anwar, appellant, reached there, took him aside and disclosed his mind that he along with his co-appellants committed the murder of Rustam Ali after having administered intoxicant to him through his daughters Fazeelat and Naziran; that after collecting gun and revolver from Mst. Fazeelat and Naziran they fired at Rustam Ali and then Naseer and Ramzan also gave him dagger blows on the neck and abdomen respectively. Muhammad Ashraf, P.W-11, claimed that on 22-5-2002 at 8-00 a.m., Ramzan approached him and confessed his guilt to the above effect. Najabat, P.W-13, stated that Naseer, appellant, confessed his guilt before him in line with that of his co-appellants. For two reasons the evidence of extra-judicial confession furnished by the above named three witnesses does not appeal to reason. Firstly, it was a blind murder. Disappearance of Rustam Ali had not been reported to the Police for six months. Fear of God and compulsion of conscience did not persuade the appellant for six months to confess the guilt. It is very difficult to believe that after registration of case the appellant, confessed their guilt out of fear of God against whom the Investigating Agency could not collect an iota of truth inspiring evidence. It appears that after having failed to connect the appellant with the crime with legal evidence, the Investigator fabricated this piece of evidence. Secondly, the extrajudicial confession is weakest type of evidence and does not provide a basis to record conviction on capital charge in F isolation, particularly when the prosecution is not possessed with other legal, cogent and convincing evidence. We, therefore, discard the evidence of extra judicial confession.
16. Ten years old Rehman son of Rustam Ali, deceased, entered the witness box as P.W-8. He furnished ocular account of the incident by saying that the male appellants had developed illicit intimacy with his sisters Mst. Fazeelat and Naziran, appellants, with his help. He had been transmitting love letters between the two sides. He further deposed that the male appellants provided him two tablets, which he passed on to his sister Mst. Fazeelat in presence of Mst. Naziran, who mixed the same in cooked meal and served to Rustam, who went asleep after taking adulterated meal and that at mid-night Muhammad Anwar, Naseer and Ramzan, appellants, reached there in pursuance of a call by Mst. Fazeelat, appellant, who killed the deceased by giving him dagger and Kassi blows and that all the appellants then buried the dead body in chaff store. A bare perusal of the statement of the child witness would show that he narrated a tutored story like a parrot. It is not believable that he helped his sisters in developing illicit intimacy with the male appellants. There is no explanation from his side as to why he had been transmitting love messages and letters between his sisters and their paramours. Likewise, it does not appeal to reason that despite having witnessed the killing of his father in the alleged manner he kept quiet for six months-. We have no doubt in our mind that he was introduced as an eye witness by the Investigator under some legal advice as the prosecution was not equipped with evidence against the appellants. The statement of the witness being parrot-fashion is not truth inspiring.
17. For what has been stated above, we are of the considered view that the prosecution completely failed to prove the charge against the appellants with evidence. The learned trial court recorded the impugned conviction and sentence on the basis of shallow, shaky and sketchy evidence and withheld the benefit of doubt to which the appellants were entitled in the circumstances.
Resultantly, we accept Criminal Appeals Nos.136, 144 and 268 of 2003, set aside the impugned conviction and sentences imposed on the appellants and acquit them of the charge by giving them benefit of doubt. Muhammad Anwar alias Amba, appellant, is in Jail. He shall be released forthwith, if not required to be detained in any other case. The remaining appellants are on ball.
They and their sureties are absolved of the liability of the bail bonds.
18. Murder Reference No,311 of 2003 is answered in negative.
19. Death sentence awarded 'to Muhammad Anwar alias Amba, appellant, is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.