' KAZIM ALI MALIK, J.--- Muhammad Ramzan son of Abdullah and Siddique son of Abdul Latif, both Rajput by caste and residents of Chak No,90-6/R, District Sahiwal were challaned to court in a case F.I.R. No,121 dated 6-4-2000 registered at Police Station Harapa, Distt. Sahiwal for having murdered their close relation Muhammad Rizwan Hameed. Trial of Muhammad Siddique being juvenile was separated from that of Muhammad Ramzan. Muhammad Ramzan faced trial before a learned Addl. Sessions Judge, Sahiwal. On conclusion of trial he was convicted under section 302(b), P.P,C.
And sentenced to death vide judgment dated 31-5-2002, now under challenge through Crl. Appeal No,511 of 2002. Muhammad Siddique, accused was convicted on the aforesaid charge and sentenced to imprisonment for life vide judgment dated 31-5-2000 by the learned Special Court established under the Juvenile Justice System Ordinance, 2000, now impugned through Crl. Appeal No 633 of 2000. The Court of Session Sialkot made Murder Reference No,579 of 2002 seeking confirmation of death sentence imposed on Muhammad Ramzan. Abdul Hameed, complainant filed Crl. Revision No,274 of 2002 seeking a direction to Muhammad Ramzan, appellant to pay compensation to the legal heirs of Muhammad Rizwan, deceased and also Crl. Revision No,275 of 2002 seeking enhancement of sentence of juvenile convict from imprisonment for life to death and for enhancement of compensation also.
' We propose to dispose of the above said interconnected matters by this single judgment.
2. Muhammad Rizwan (16) son of Abdul Hameed, P.W.I suffered death in this happening which took place on 2-4-2000 and was reported to the police on 6-4-2000. It was a blind murder. The prosecution case rests on circumstantial pieces of evidence.
3. The prosecution case set up in the F.I.R., Exh. P.A., in brief, is that on 1-4-2000 Abdul Hameed, complainant left for Faisalabad to see his relatives. He returned home in Chak Muhammad Pur, Distt. Shawial on 3-4-2000 and learnt from his wife Mst. Razia, P.W.2 that their son Rizwan had disappeared one day before in the evening after having accompanied Muhammad Siddique and Muhammad Ramzan, accused persons, to agricultural land Jehangir Mardana located within the area of revenue estate Muhammad Pur. Muhammad Siddique and Muhammad Ramzan afore- mentioned also went underground on 3-4-2000 in the morning. The complainant went in search of Muhammad Siddique and Muhammad Ramzan, accused persons and sent his brother Abdullah (not examined P.W.) to Mamoon Kanjan from where he brought them back to the house of Naseer Ahmad, Rajput (not examined PW) situated in village Muhammad Pur. The complainant also reached there and found aforementioned Naseer Ahmad, Abdullah, Muhammad Siddique son of Muhammad Hussain (PWs) and the said accused persons present there. Both the accused persons in presence of the complainant and the other above named witnesses disclosed their mind that on 2-4-2000 they took away Rizwan to Jehangir Mardana on some pretext, killed him by giving spade blows and threw the dead body in a field of wheat crop. In the light of confessional statements of the accused persons, the complainant along with Naseer Ahmad and Muhammad Siddique son of Muhammad Hussain (P.W.) rushed to the above said field and found putrefied dead body of Rizwan lying there.
' Motive for the occurrence as disclosed in the F.I.R. Was that Muhammad Ramzan, accused wanted to contract marriage with Mst. Shazia, a sister of Muhammad Siddique, accused and apprehending that Rizwan, deceased might succeed in getting her hand killed the latter after having persuaded his co-accused Siddique to join him on the basis of wrong information that his sister Mst. Shazia had developed illicit intimacy with Rizwan.
4. On 7-4-2000 at about 10-00 aim. Dr. Muhammad Tariq Mahmood, P.W.6 made autopsy on the dead body of Muhammad Rizwan, aged 16 years, son of Abdul Hameed, complainant identified by Muhammad Siddique, P. W.3 and Muhammad Jamil, P.W.4. The doctor observed that it was a dead body of young male clad in black underwear only. The body was swollen and skull bone was found fractured. At its posterior side. Various parts of the body had been eaten up by maggots. Skin of the head and face, brain and its membrane, pleura, lungs and oral cavity had been eaten, up. The post mortem examiner also found skin of the following parts eaten up by maggots:---
(i) Middle of Chest 7 c.m. x 7 c.m.
(ii) Right groin 4 c.m. x 4 c.m.
(iii) Left arm pit 7 c.m. x 4 c.m.
(iv) Left arm 5 c.m. x 5 c.m.
' In the opinion of the doctor it was not possible to form definite opinion about the cause of death.
However, fracture of skull bone and presence of maggots in cranial cavity showed that head injury extended up to brain matter might have caused death. It was not possible to opine as to how much time elapsed between injuries and death. However, the duration between death and post mortem examination was assessed as four to eight days. The P.W. Recorded post mortem report Exh.PF to the above effect.
5. After recording the F.I.R. (Exh.PA) Muhammad Rafiq, Inspector (P. W.10) reached the spot and prepared injury statement, Exh. PG, inquest report, Exh. PH and dispatched the dead body to the mortuary for post mortem examination through Muhammad Yousaf, Constable, P.W.5. Thereafter, the Investigating Officer inspected the spot and secured blood stained earth under Memo. Exh.PB.
He also prepared rough site plan, Exh.PK. On 7-4-2000 the escorting constable produced Shalwar (P.3), vest (P.4) and Shirt (P.5), claiming to be the last worn clothes of the deceased, despite the fact that the post mortem examiner had given him last worn underwear only. The investigator took them into possession vide memo. Exh.PE. On 25-4-2000 the investigator arrested Muhammad Siddique and Muhammad Ramzan, appellants and the same day Muhammad Ramzan, appellant, led to the recovery of blood stained Kassi (P.1), which was taken into possession and sealed into a parcel vide memo. Exh. PC. On the same day Muhammad Siddique, appellant got recovered blood stained Kassi (P.2) which was secured and sealed vide memo. Exh.PD. The investigator examined the witnesses, deposited the case property with the Moharrer and sent up the appellants to Court to stand trial on the charge of murder.
6. At the inception of trial, the appellants were charged under section 302 read with 34, P.P.C. For having committed Qatl-i-Amd of Muhammad Rizwan Hameed in furtherance of their common intention. They denied the charge and claimed trial.
7. The prosecution got examined 10 P.Ws. In all. Abdul Hameed P.W.1 supported the version already set up in the F.I.R. Mst. Razia, P.W.2 deposed that her deceased son accompanied the accused persons in her presence and thereafter he was not seen alive. Muhammad Siddique, P.W. 3 deposed about extra judicial confession and recoveries of blood stained spades. Muhammad Jameel, P.W.4 claimed to have identified the dead body of his cousin Rizwan before the post mortem examiner. He also attested recovery memo. Regarding above said clothes (P.3 to P.5).
Muhammad Yousaf, P.W.5 got post mortemed the dead body. Nazir Ahmad, Patwari, P.W.7 prepared site plan, Exh.PJ. Shahid Rasool, Constable, P.W.8 collected sealed parcels of blood stained earth and spades from Manzoor Hussain, Moharrer P.W.9 and passed on to the office of chemical examiner. Muhammad Ratiq, Inspector, P.W.10 proved his investigation.
8. When examined under section 342, Cr.P.C. The appellants denied and dismissed each piece of prosecution evidence put to them. They pleaded innocence by saying that they had been involved in the case on account of suspicion.
9. It was an un-witnessed killing. We have heard both the sides and examined the evidence. The P.Ws. Of extra judicial confession, motive and last seen alive attempted to prove that the dead body lying in the field of wheat crop was that of Rizwan Hameed. Muhammad Jamil, P.W.4 appeared before the doctor and claimed that dead body laid before him for post mortem examination was that of his first cousin Rizwan Hameed. The P.Ws. Further deposed that Rizwan was done to death on 2-4-2000 and his dead body was found on 6-4-2000. Now, we proceed to examine the entire evidence in order to ascertain as to whether or not the prosecution conclusively established that the dead body subjected to autopsy by Dr. Muhammad Tahir, P.W.6 on 7-4-2000 was that of Muhammad Rizwan Hameed. While discussing the post mortem report we have already observed in the preceding para that maggots had eaten up facial skin and resultantly facial and skull bones were naked. Similar was the position of chest, left arm and right groin. The post mortem examiner was left with no other option but to admit on cross-examination that face of the dead body was not identifiable. In the light of post mortem report and statement of he post A mortem examiner, it is not difficult to conclude that the dead body in question had reached last stage of putrefaction, when it was post mortemed. Muhammad Jamil, P.W., could not explain as to how he identified the dead body as that of Rizwan, when it was not identifiable. Learned counsel for the complainant attempted to argue ' that Muhammad Jamil, P.W., identified the dead body as that of his first cousin from last worn clothes i.e, Shalwar, vest and shirt (P.3, 4 and 5). A microscopic examination of the record would show that the Investigating Officer fabricated the recovery of Shalwar, vest and shirt. Our this conclusion is receiving support from the statement of Dr. Muhammad Tahir, post mortem examiner, P.W.6, who deposed in express terms that the dead body was clad in black coloured underwear and that he handed over only the said underwear to the escorting constable. When questioned as to why the underwear removed from the dead body by the doctor was not taken into possession by the investigator, the learned Law Officer was possessed with no answer. Similarly, the learned Law Officer and learned counsel for the complainant did not offer any explanation during course of arguments as to what prompted the investigator to fabricate the recovery of Shalwar, shirt, and vest with the false claim that the same were last worn clothes of the deceased despite knowing fully well that the doctor found only an underwear on the dead body, which he handed over to the escorting constable. It appears that the investigator fabricated the recovery of clothes realizing that the dead body was not identifiable.
10. The P.Ws. Claimed that the deceased was done to death on 2-4-2000 and his dead body was found on 6-4-2000. It was/is the prosecution case that probable duration between death and post mortem examination was five days. This claim of the P.Ws. Stand repudiated by the medical evidence. At the cost of repetition we bring on record that on 7-4-2000 the doctor found that maggots had eaten up skin of face, head and other parts of the body, which had been pealed off.
Dead body was swollen and stomach macerated. We have analyzed condition of the dead body recorded by the post mortem examiner in the light of text book on Medical Jurisprudence and Toxicology by N.J. Modi (Pakistan Edition by Ray Zahid Hussain) an authority on the subject and found that putrefactive changes observed by the post mortem examiner in this case occur 16 to 20 days after the death. For facility of reference the table showing chronological sequence of the putrefactive changes occurring in the temperate regions is quoted below:- {{TABLE}} Putrefactive Changes Time
1. Greenish coloration over the iliac 1 to 3 days after fossae. The eyeballs, soft and death. Yielding.
2. Green coloration spreading over 3 to 5 days after the whole abdomen, external death genitals and other parts of the body. Forthy blood from mouth and nostrils.
3. Abdomen distended with gas. 8 to 10 days after Cornea fallen in an concave. Death Purplish red streaks of veins prominent on the extremities, sphincters relaxed, nails firm.
4. Body greenish-brown, Blisters 14 to 20 days forming all over the body. Skin after death peels off.
Features unrecognizable. Scrotum distended. Body swollen up owing to distension. Maggots on the body. Nails and hair loose and easily detached.
5. Soft parts changes into a thick, 2 to 5 months semi flued, black mass. Skull after death abdomen and Thorax burst. Bones exposed. Orbits Empty. {{TABLE}} ' A careful comparison of the putrefactive changes of the dead body recorded by Dr.Tahir in his report Exh.PF with that of the above table would provide a basis to say without fear of contradiction that the probable time which elapsed between death and post mortem examination of the dead body in question was 14 to 20 days and not 4 to 8 days as deposed by the post mortem examiner and the other witnesses. For the foregoing reasons we are of the view that the prosecution failed to establish with evidence conclusively that the dead body B subjected to autopsy on 7-4-2000 by Dr.Tahir Mahmood, P.W.6 was that of Muhammad Rizwan Hameed, deceased. Similarly, we are of the calculated view that the deceased whose dead body had been post mortemed by P. W.6 suffered death between 14 to 20 days before 7-4-2000 and not within 4 to 8 days as claimed by the P.Ws.
11. We have already observed that the dead body was clad in underwear only, which was handed over to the escorting constable by, the doctor. It was neither produced by the said constable before the I.O. Nor was taken into possession without any explanation form the prosecution.
Muhammad Jamil, P.W.4, Muhammad Yousaf, escorting Constable, P. W.5 and the investigator, P.W.10 introduced shalwar, shirt and vest as the last worn clothes of the deceased. The post mortem examiner dismissed their claim in this regard by saying that the dead body was clad in black coloured underwear only and that the said underwear was handed over to the escorting constable. An important question which requires serious thought is as to what prompted the investigator, the escorting Constable and Muhammad Jamil, P.W.4 to introduce and fabricate recovery of Shalwar, shirt and vest with the false claim that the dead body was clad therein. From this state of affairs it appears that the dead body was without clothes when it was removed to the hospital on 6-4-2000 and apprehending some adverse effect upon the prosecution case, the P.
Ws. Introduced Shalwar, shirt and vest under some legal advice. When confronted with statement of the post mortem examiner qua the last worn underwear of the deceased and that of the investigator and escorting constable regarding Shalwar, shirt and vest, the learned Law Officer was not in a position to own or disown any one of the statements.
12. Now we take up extra judicial confession which was believed by the learned trial Court while recording the impugned conviction and sentence. Abdul Hameed, complainant had alleged in the F.I.R. That he returned home from Faisalabad on 3-4-2000 and learnt that his son Rizwan had gone missing one day before in the evening after having accompanied with Muhammad Siddique and Muhammad Ramzan, appellants. The P.W. Further stated that the appellants also went underground, upon which his brother Abdullah (not examined P.W.) reached Mamoon Kanjan, Distt.
Sheikhupura and brought them back to Chak No,91-6/R, Sahiwal in the house of Naseer Ahmad Rajput (not examined P.W.) where they both confessed their guilt by saying that they killed the deceased on 2-4-2000 in the evening by giving him Kassi blows. At trial, Abdul Hameed, complainant introduced another story by saying that after having learnt from his wife Mst. Razia Bibi, P.W., that Muhammad Rizwan went missing, he along with Latif (not examined P.W.) reached the house of Siddique and Ramzan, appellants on 6-4-2000 and found them not available; that they again went to the appellants and found them present when first of all Ramzan, appellant confessed his guilt in presence of Siddique and Naseer, P.Ws. And thereafter Siddique, appellant disclosed his mind by saying that they both killed the deceased on 2-4-2000 by giving him Kassi blows. On cross-examination, Abdul Hameed, complainant P.W.I stated that relatives of the appellants brought them back from Mamoon Kanjan to the house of Naseer (not examined P.W.) where the appellants confessed their guilt in presence of P.Ws. And so many co-villagers. While lodging the F. I . R. Abdul Hameed, complainant claimed that the appellants were brought back by his brother Abdullah, but while making statement on oath he changed his first stance by saying that the appellants were brought from Mamoon Kanjan by their relatives. The accused persons allegedly made joint confession and under the law joint confession is no confession. The learned Law Officer argued that the appellants confessed their guilt one after the other; It was not the case of the prosecution while lodging the F.I.R. That the appellants confessed guilt one after the other.
The complainant stated in the F.I.R. That both the appellants confessed their guilt at one time jointly. At trial, the complainant improved upon his previous statement by saying that the appellants confessed guilt one after the other when he was admittedly possessed with legal advice. Even otherwise, ' the alleged confession by the accused persons as reshaped by the P.Ws.
At trial can only be treated as joint one as the same was allegedly made on the same day, time and place and before the same set of PWs.
13. Under the law, extra judicial confession is weakest type of evidence. In the case in hand the extra judicial confession to the effect that the deceased F was done to death on 2-4-2000 stands belied by the medical evidence already discussed. We have already concluded in the preceding paragraph that the person whose dead body had been post mortemed on 7-4-2000 by P.W. 6 suffered death 14 to 20 days before and not four days back as claimed by the complainant and other witnesses.
14. The evidence of last seen alive is also not worthy of credence for multiple reasons. Mst. Razia, P.W.2 deposed that his son Muhammad Rizwan ccompanied the accused persons on 2-4-2000 and then disappeared. She did not report the occurrence to the police promptly. She attempted to explain the delay on her part by saying that her husband, Abdul Hameed, complainant was away to Faisalabad and he returned home on 3-4-2000 when disappearance of Muhammad Rizwan was brought to his notice. This explanation is of no help to the prosecution case. Abdul Hameed, complainant also did not report the incident to the police w.e.f, 3-4-2000 to 5-4-2000. Had Muhammad Rizwan, deceased gone missing in the alleged manner and had the accused persons gone underground as alleged, Abdul Hameed, complainant would have lodged the F.I.R. G promptly on 3-4-2000 without wasting a single moment. In the circumstances, the delay in lodging the F.I.R. Adversely affected the prosecution case.
15. The learned Law Officer assisted by learned counsel for the complainant argued that the dead body was recovered from a field of wheat crop on pointing out of the accused persons. For two reasons we do not attach importance to this argument. Firstly, it was the prosecution case at trial that the dead body had not been spotted or recovered or seen in furtherance of alleged pointing out of the accused persons. Abdul Hameed, complainant had stated on cross-examination that first of all he along with P.Ws. And co-villagers reached the spot and found the dead body of Rizwan lying there. He further stated that the appellants thereafter pointed out the dead body. As the P.Ws, had already spotted and found the H dead body lying in the field, therefore, subsequent alleged pointing out of the appellants was meaningless.
16. The learned Law officer further contended that the appellants led to the recovery of blood stained Kassis after their apprehension, which corrobcrnted other' pieces of evidence. The alleged occurrence took place on 2-4-2000. The complainant alleged in the F.I.R. And deposed at trial that on 3-4-2000, he returned home from Faisalabad and learnt that the accused persons left their home and reached Mamoon Kanjan, Distt. Sheikhupura. They were arrested on 25-4-2000. They led to the recovery of blood-stained Kassis on 28-4-2000. It does not appeal to reason that in a blind murder case the accused persons while going underground and taking shelter in Mamoon Kanjan, Distt. Sheikhupura were so fool that they chose to preserve blood stained kassis with which they allegedly killed the deceased. With effect from 2-4-2000 to 25-4-2000 the accused persons had an ample opportunity to destroy the spades or at least wash away blood from the blades. We are not ready to believe that the accused preserved blood stained Kassis for about 22 days.
18. Now adverting to the motive part of the case we may add that excepting mere self-assertion in this regard no legal, cogent and convincing evidence could be collected or produced at trial. J Even otherwise, the motive in isolation does not provide a basis to record conviction on the charge of murder or any other offence.
19. For what has been stated above, we are of the view that the prosecution failed to prove the charge against the appellants beyond any shadow of doubt. Under the law, benefit of doubt, however slight, is right of the accused. We, therefore, accept Cr1. Appeal No,511 of 2002 and Crl.
Appeal No,633 of 2002, set aside the impugned conviction and sentence imposed on both the appellants and acquit them of the charge by giving them benefit of doubt. The appellants be set at liberty forthwith, if not required to be detained in any other case.
20. Murder Reference No,579 of 2000 is answered in negative.
12. Death sentence imposed on Muhammad Ramzan, appellant is not confirmed.
22. Since the appellants have been acquitted of the charge, Cr1. Revisions No,274 of 2002 and 275 of 2002 for enhancement of sentence and compensation stand disposed of as having become infructuous.