JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Anwar son of Muhammad Siddique, Caste Bhatti, and Zahoor Ahmad son of Sikandar, Caste Machi, both residents of Naveed Kot, Depalpur District Okara appellants, were involved in case F.I.R. No.41 of 2004, dated 5-2-2004, offence under sections 302, 34, P.P.C., registered at Police Station City Depalpur, District Okara and were Tried by learned Additional Sessions Judge, Depalpur, who vide judgment dated 31-5-2005, convicted the appellants under section 302(b), P.P.C., and sentenced them to imprisonment for life each as Tazir, with direction to pay Rs.50,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default whereof to undergo six months' S.I. Benefit of section 382- B, Cr.P.C. Was also extended to the appellants.
2. Muhammad Anwar appellant has assailed the judgment of learned trial court through filing Criminal Appeal No.1252 of 2005 while. Zahoor Ahmad, appellant filed Criminal Appeal No.1253 of 2005. As both the appeals have arisen out of the same F.I.R., therefore, these are being disposed of through single judgment.
3. The prosecution story as alleged in the F.I.R. (Exh.PA) lodged on the complaint of Muhammad Aslam (P.W.1) is that on 3-2-2004 at 10-00 p.m. When the complainant, his brother Zaker Hussain and Bashir Ahmad were sitting in complainant's house, Zahoor Ahmad and Muhammad Anwar accused came there and took along with them Muhammad Amjad deceased, brother of complainant. When Muhammad Amjad did not turn up, the complainant became worried, so they started searching Muhammad Amjad. They also placed suspicion of murder of Muhammad Amjad on Zahoor Ahmad and Muhammad Anwar accused and when they were inquired about the occurrence they made evasive statements. On 5-2-2004, when the said accused were strictly inquired through Punchayat in presence.Of Muhammad Nisar and Muzafar Ali Shan P.Ws., the accused admitted that they had murdered Muhammad Amjad through strangulation and thrown his dead body in the tube-well of Colonel Ishtiaq-ur-Rehman's, upon which the complainant along with others went to the said tube-well and found the dead body of Muhammad Amjad deceased.
4. The motive for the occurrence is that Zahoor Ahmad, appellant had suspicion that the deceased had illicit relations with his were Mst. Saira Jatti and due to that reason, he with connivance of co- accused Muhammad Anwar, appellant murdered the deceased Amjad.
5. On 5-2-2004, the complainant after leaving Muhammad Akram and Abdul Sattar son of Ilam Din with dead body in order to safeguard the same, proceeded to Police Station for reporting the matter where he got recorded his statement by Muhammad Abbas, S.-I., which was read over to him and the complainant signed the same in token of its correctness.
6. After registration of formal F.I.R., the Investigating Officer proceeded to the place of occurrence, inspected the dead body, prepared inquest report (Exh.PG), injury statement (Exh.PH), drafted application for post mortem examination (Exh.PJ) and handed over the dead body to Muhammad Ashraf 352/C and Atta Muhammad 249/C for escorting the same to the mortuary. The Investigating Officer also prepared rough site plan of the place of occurrence, which is Exh.PK. After the postmortem examination, the said constables produced lost worn clothes of deceased, muffler (P-5), shirt (P-6), Shalwar (P-7), string (P-8) and one vest (P-9) which were taken into possession by the Investigating Officer vide recovery memo Exh.PD. On the direction of Investigating Officer and pointing out of the P.Ws., Mazhar Hussain, Patwari (P.W.8) prepared scaled site plan of the place of occurrence. As Exh. PE, Exh.PE/1. On 16-2-2004, the Investigating Officer arrested the appellants. On 18-2-2004, Muhammad Anwar, appellant while in police custody led to the recovery of watch (P-4), which the Investigating Officer took into possession vide recovery memo Exh.PC. On the same day, on the pointing out of Zahoor Ahmad, appellant while in police custody got recovered one wallet (P-1), Rs.200 currency notes, 20 in numbers each denomination of Rs.10 P- 2/120 and one handkerchief (P-3), the same were taken into possession vide recovery memo Exh.PC. The Investigating. Officer also recorded the statements of prosecution witnesses under section 161, Cr.P.C.
7. During the course of investigation, the Investigating Officer found the appellants guilty and submitted report under section 173, Cr.P.C, to the court of competent jurisdiction, which was en- routed through learned Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned Additional. Sessions Judge, Depalpur vide order dated 4-5-2004, framed charge against the appellants. The appellants pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced as many as 10 witnesses.
8. Muhammad Aslam (P.W.1) is the complainant of this case. Zaker Hussain, (P.W.2) corroborated the statement of complainant. Muzaffer Ali Shan (P.W.3) is the witness of extra judicial confession made by the appellants. Muhammad Abbas, S.-I. (P.W.10) is the Investigating Officer of this case. Dr. Abdul Aziz, Medical Officer, posted at Tehsil Headquarters Hospital, Depalpur (P.W.9) had conducted the postmortem upon the dead body of Muhammad Amjad, de-ceased and found following injuries on his person;-- NECK. Neck was encircled with green muffler (three circles and having three knots at front). Under line skin was ecchymosted at and above trachea. Shalwar was having faecil and urine stain. His hands were clinched. Legs having flowing injuries.
(1) Right femour was broken at lower one third.
(2) Abrasion 4- cm x 1 cm just below right knee.
(3) Abrasion 8cm x 2 cm in front of left knee.
Neck dissected and blood was found in neck muscles extravasted. Hyde bone and larynix was taken for examination for bacteriologist. Skull opened and found conjusted inside and brain matter.
Spinal card. Not opened and not required.
After conducting postmortem examination, the doctor arrived at the following opinion:- "The cause of death was asphyxia due to strangulation and time between injury and death was immediate. Other injuries could be post mortem injuries."
Statements of rest of the prosecution witnesses are formal in nature.
9. On 23-2-2005, the learned Deputy District Attorney, gave up Muhammad Nisar, Bashir Ahmad, Abdul Sattar and Muhammad Abbas P.Ws., being unnecessary besides giving up Atta Muhammad 249/C, PW, being unnecessary on 8-3-2005. On 20-4-2005, the learned DDA, closed the prosecution evidence.
10. Muhammad Anwar and Zahoor, appellants were examined under section 342, Cr.P.C; wherein they opted neither to appear under section 340(2), Cr.P.C. As witnesses of their on to disprove the allegations levelled against them nor to produce defence evidence. In response to the question why the case is against him and why the P.Ws. Deposed against him, Muhammad Anwar, appellant made the following deposition:-- "Amjad deceased was resident of same Mohallah where my co-accused with his children used to live. I have no relations with my co-accused Zahoor Ahmad and was hauled up by the police as suspects. I am a poor person and could not fulfil the demand of the police, therefore, the police dishonestly challaned me in this case in connivance with the complainant party. The police had arrested many other suspects in this case and had relieved them after taking illegal gratification.
The police had tortured me and my co-accused. The motive for the occurrence was afterthought, The P.Ws. Of recoveries, extra judicial confession are related to the deceased and on the assurance of the police and after deliberations, involved me and my co-accused in this case dishonestly. The Articles stated to be recovered on my pointation was false and the said articles were shown to be recovered at my instance to create evidence against me and to strengthen the prosecution case."
11. In response to similar question, Zahoor Ahmad appellant made the following deposition:-- "Amjad deceased is resident of same Mohallah where I along with my children used to live. Amjad deceased had been working with me and had been learning driving licence of tractor. I had received complaints from different people regarding his attitude of teasing different women. I terminated him from the job as such I left even to talk with him. The police arrested many persons of the locality and town as suspects. I and Anwar accused are so hauled up by the police as suspects prior to the registration of F.I.R. The police gave torture to me and to my co-accused. After making bargaining with the other suspects, the police let them of after accepting illegal gratification from the said suspects. The motive for the occurrence is afterthought and concocted one. The P.Ws. Of recoveries, extra judicial confession are related to the deceased and on the assurance of the police and after deliberations, involved me and my co-accused in this case dishonestly. The articles stated to be recovered on me were planted against me in connivance with the complainant party to create evidence against me and strengthen the prosecution case."
12. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellants in the above terms.
13. Learned counsel for the appellants submitted that there is delay of two days in lodging the F.I.R., for which the prosecution has failed to render any plausible explanation, even otherwise, from bare reading of F.I.R. There is no single word that what efforts were made by the prosecution during this interregnum period. Learned counsel for the appellants further contends that prosecution witnesses are interested one, Muhammad Aslam, P.W.1, who is also complainant of this case and Zakir Hussain (P.W.2) are real brothers of deceased while Mozaffer Ali Shan (P.W.3) is the witness of extra judicial confession made by the appellants, who is real cousin (khalazad) of the deceased.
Learned counsel went on arguing that so far as motive is concerned as per contents of prosecution, Zahoor Ahmad, appellant had suspicion that his were had illicit relations with deceased, is not proved. Apart from this recovery of watch, allegedly recovered from Muhammad Anwar and recovery of wallet including Rs.200 shown to have been recovered on the pointing out of Zahoor Ahmad, appellant has been planted in order to strengthen the prosecution version.
During the course of trial when Allah Ditto, (P.W.8) appeared before the learned trial court, he could not mention the time, date and place from where the recovery was effected. Learned counsel argued that the appellants have falsely been involved in this case. Learned counsel lastly submitted that this is a case of no evidence, prosecution failed to prove its case against the appellants beyond shadow of reasonable doubt, therefore, they should be extended benefit of doubt and their ultimate acquittal from the charge.
14. As against above, learned Deputy Prosecutor-General has vehemently opposed the contentions raised on behalf of the appellants. It is contended with vehemence that delay in lodging the F.I.R. Is fully proved. It is argued that the appellants are nominated in the F.I.R. And though there is no direct evidence available on the record but there is ample evidence in the shape of last seen, extra judicial confession and recovery -of watch (P-4) wallet (P-1) including Rs.200 duly recovered from the appellants, which fact fully connects them with the commission of offence. Moreover, it is contended that medical evidence is in line with the prosecution version. Learned Law Officer has argued that prosecution through leading cogent and confidence inspiring evidence has rightly proved its case against the appellants beyond iota of reasonable doubt; the learned trial court has already taken lenient view while inflicting punishment, therefore, they are no more entitled to any leniency.
15. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellants as well as learned Deputy Prosecutor-General.
16. There is no cavil to this -proposition that it was an unseen occurrence and the matter was reported to the police after two days of the incident. The explanation rendered by the prosecution in this regard, I must say, is not trustworthy and the story advanced qua this fact also does not inspire confidence. Muhammad Aslam (P.W.1) and Zakir Hussain (P.W.2) are real brothers of the deceased, It is settled principle of law that statement of interesting witness if supplemented by any corroborative evidence, is to be taken as true as any other independent witness. However, in the instant case both the prosecution witnesses deposed that Zahoor Ahmed appellant had suspicion that Amjad deceased had illicit relations with his were, however, why they allow their brother Muhammad Amjad deceased to accompany the appellants when they already knew all the facts, both of them have badly failed to substantiate the prosecution version on this point. Muzaffar Ali Shan (P.W.3) is the witness of extra- judicial confession. The proceedings of punchayat as deposed by this P.W. And confession of the appellants made in the same, is a matter which does not sound sense squarely. It does not appeal to prudent mind that the appellants might have confessed their guilt in open proceedings before so many persons and they were let of, neither they were apprehended at the spot nor the participants made any attempt to do so. Even otherwise, needless to mention that extra judicial confession is always considered a very weak type of evidence. The recovery of articles effected from both the appellants, as depicted in the statement of Allah Ditto (P.W.5), B straightway does not inspire confidence. So far as recovery of certain articles effected on respective pointing out of the appellants is concerned, the same is in line with the contention raised by learned counsel for the appellants that in order to strengthen its version, the prosecution has planted the same mainly for the reason that had the appellants taken away the articles from the deceased, either they must have spoiled the same or it would have been with one of them. The story advanced by the prosecution in this 'regard is highly improbable, unjust and does not sound sense. The medical evidence does not come forward to rescue the case of the prosecution against the appellants because no specific role has been attributed to both of them.
17. In the foregoing peculiar facts and circumstances, it seems that it was an unseen occurrence and unknown persons had committed the murder while the appellants were involved only on the basis of 1 suspicion. It is settled principle of criminal justice that mere on the basis of suspicion innocent persons must not be convicted and punished. Moreover, it is golden principle of law that the Court should let of 100 guilty but should not convict one innocent person on the basis of suspicion. Therefore, keeping in view the facts and circumstances of the case, whole prosecution version seems to be hinging upon the conjectures and surmises; hence, this cannot be considered as legal evidence to connect appellants with the commission of offence.
18. The upshot of the above discussion is that the prosecution has failed to bring forth charge against the appellants beyond any reasonable doubt, therefore, in the interest of safe administration of criminal justice, Criminal Appeal No.1252 of 2005 filed by Muhammad Anwar appellant and Criminal Appeal No.1253 of 2005 filed by Zahoor Ahmed appellant are accepted in toto. The sentence awarded by the learned Additional Sessions Judge, Depalpur vide judgment dated 31-5-2005 is set aside. Appellants Muhammad Anwar and Zahoor Ahmed are directed to be released forthwith if not required in any other case.. 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.