JUDGMENT WAQAR HASSAN MIR, J.---The appellant Muhammad Aslam son of Allah Ditta has filed this appeal (Criminal Appeal No.672 of 2005) against the judgment dated 31-10-2005 passed by the learned Additional Sessions Judge, Kehror Pacca District Lodhran, whereby he was convicted and sentenced as under:--- LIFE IMPRISONMENT under section 364 P.P.C. With fine of Rs.100,000 and in case of nonpayment of fine to further undergo one year S.I. Benefit of section 382-B, Cr . P.0 . Was awarded to him.
DEATH SENTENCE under section 302(b), P.P.C. With compensation of Rs.200,000 payable to legal heirs of the deceased under section 544-A, Cr.P.C. And in default of payment .Of compensation to further undergo six months S.I.
Murder Reference No.80 of 2006 for confirmation or otherwise of death sentence of the appellant shall also be replied through this single judgment.
2. The appellant/accused was challaned by the police of Police Station City Kehror Pacca to face the trial in case F.I.R. No.98 of 2005 dated 20-4-2005, offence under sections 364/302, P.P.C.
3. Brief facts of the case as mentioned in the F.I.R. (Exh.PK) are that the complainant Mst. Irshad Mai along with her brother-in-law namely Abdul Rasheed appeared before the I.O. Fayyaz Ahmad (P.W.12) on 20-4-2005 and,, got recorded her statement that on 11-4-2005 she along with her brother-in-law Abdul Rasheed son of Muhammad Ramzan and her 'Dewar' namely Muhammad Musa son of Imam Bakhsh was sitting in the house and they were conversing/talking. Somebody knocked at the door, she opened the door upon which Muhammad Aslam son of Allah Ditta came in and stated that he had come to accompany Fayyaz alias Nanna (aged 18 years) to see Mela Pir Jiwan and thus, took her son. When her son Fayyaz alias Nanna did not come back till next morning, she became perturb and inquired from Muhammad Aslam about her son, but he did not give the answer satisfactorily. Muhammad Ijaz son of Muhammad Musa and Sajjad son of Zafar, during inquiry told her that they saw her son Fayyaz alias Nanna roaming along with Muhammad Aslam in the Mela Pir Jiwan. The complainant searched her son among the people of 'brotheri' and relatives, but she could not get any clue of her son. She had strong suspicion that Muhammad Aslam abducted her son for the purpose of murder.
4. The investigation conducted by the Investigating Officer Fayyaz Ahmad (P.W.12) reveals that on 20-4-2005 after registration of the formal F.I.R. (Exh.PK), he along with other police officials proceeded to the place wherefrom the accused Muhammad Aslam accompanied son of the complainant; he prepared site plan (Exh.PP) of the said place; he after ascertaining facts from the people of the locality made search of the accused Muhammad Aslam and arrested him while he was standing outside of his house near his cattle shed; the accused was interrogated and during this course, he disclosed that he murdered Fayyaz alias Nanna with pistol and buried his dead body in the wheat fields situated in Mauza Herdo Thaheem; the accused led the I.O. (PW-12) to the place where he killed Fayyaz alias Nanna and buried him; the accused Muhammad Aslam himself dug the ditch and got recovered dead body of the deceased Fayyaz alias Nanna; the I.O. Prepared injury statement (Exh.PD) and inquest report (Exh.PE) and after that the dead body of the deceased was despatched to THQ Hospital Kehror Pacca, along with Muhammad Islam, 407/C, Muhammad Imtiaz and Hafiz Muhammad Amir for autopsy; the I.O. (P.W.12) also recorded the statements of the P. Ws. Under section 161, Cr.P.C, who were present at the time of recovery of dead body of the deceased Fayyaz alias Nanna; he also prepared Fard Nishan Dehi of the place of murder (Exh.PG) and Fard Nishan Dehi of the place of recovery of dead body (Exh.PH); the I.O. Also took into possession blood stained earth from the place where Fayyaz alias Nanna was murdered and sealed the same into parcel and then prepared recovery memo. (Exh.PL), which was attested by Aslam son of Abdul Wahid and Rasheed; the I.O. (P.W.12) also took into possession two crime empties from the place, where Fayyaz Ahmad deceased was murdered with pistol and sealed the same into parcel vide recovery memo. (Exh.PM), which was attested by Abdul Rasheed and Aslam son of Abdul Wahid; the 1.0. Also prepared site plan (Exh.PQ) of the place of occurrence and recovery of the dead body on 22-4-2005 the accused/appellant during interrogation disclosed and led the I.O. To the place of recovery and got recovered weapon of offence (Pistol/P-1) lying in the room, which was sealed into parcel and taken into possession vide recovery memo (Exh.PA); on 26-4-2005 the accused also got recovered cycle (P-7) from the cattle shed which was taken into possession by the I.O. Vide recovery memo. (Exh.PN); on 29-4-2005 the accused disclosed and got recovered Kassi (P-8) which he used in digging the ditch, taken into possession vide recovery memo. (Exh.P0) the I.O. On 16-5-2005 took the Patwari Halqa along with the P.Ws. To the place of occurrence and prepared site plan (Exh.PB) and then after completing the investigation prepared the challan, found the accused guilty and submitted the challan in the court of learned Ilaqa Magistrate on 17-5-2005.
5. On submission of challan before the learned trial Court and after completing the procedural formalities, the accused/ appellant was formally charge sheeted on 8-8-2005 under sections 364/302, to which he pleaded not guilty and claimed trial. The prosecution examined as many as twelve witnesses and also led documentary evidence to prove that, charge against the accused/appellant.
6. The prosecution evidence consists or statements or P.W.1 Ghulam Shabbir, 275/C-II, who attested the recovery memo (Exh.P.A) regarding pistol (P-1); P.W.2 Abdul Islam, 407-C, who escorted the dead body of the deceased to the mortuary and after postmortem examination handed over last worn clothes of the deceased to the 1.0.; P.W.3 Iftikhar Ahmad, Patwari Halqa/author of the site plan (Exh. PB); P.W.4 Dr. Muhammad Maqbool, who conducted postmortem examination on the dead body of the deceased; P.W.5 Muhammad Iqbal, 48/HC, who transmitted the parcels etc. To the concerned offices respectively; P.W.6 Muhammad Imtiaz, who attested the recovery memos Exh.P.G, Exh. PH and Exh.PJ; P.W.7 Abdul Razzaq, 560-C, who transmitted the parcels etc. To the offices of Chemical Examiner, Forensic Science Laboratory and Pathologist, Lahore respectively; P.W.8 Sajjad Ahmad and P.W.9 Muhammad Ayaz, who saw Muhammad Aslam accused along with the deceased Fayyaz alias Nanna while roaming in the Mela Pir Jewan prior to murder; P.W.10 Mst.
Irshad Bibi, the complainant of this case; P.W.11 Abdul Rasheed, who was sitting in the house of the complainant along with Musa when the accused came to accompany the deceased and he also attested the recovery memos. Exh. PL, Exh.PM, Exh.PN and Exh.P0; and P.W.12 Fayyaz Ahmad S.- I./S.H.O., who investigated this case and prepared the relevant documents.
7. The learned ADA gave up the P.Ws. Namely Niaz Ahmad, 156/C, Muhammad Aslam son of Abdul Wahid, Hafiz Muhammad Amir son of Shah Muhammad being unnecessary and after tendering in evidence the report of Chemical Examiner as Exh.PL, report of Forensic Science Laboratory as Exh.PV, and report of Serologist as Exh.P.W., closed the prosecution evidence.
8. Thereafter, statement of the accused/appellant as required under section 342, Cr.P.C. Was recorded, in which he denied the allegations levelled by the prosecution. The accused/appellant neither produced any defence evidence nor he opted to appear in the witness box as his on witness. However, after conclusion of the trial, the accused/appellant was convicted and sentenced by the learned trial Court, as mentioned above.
9. Learned counsel for the appellant submits that there is no eye-witness of the occurrence; that admittedly circumstantial evidence has been presented by the prosecution against the appellant and that it is to be seen whether this circumstantial evidence is worth conviction; that last seen evidence is weak type of evidence and the same is also not supported by any other material collected by the prosecution; that the recoveries made at the pointation of the accused were all fake and planted with collusion of the complainant; that the document Exh.PK i.e. The F.I.R. Shows that the accused/appellant enticed away the deceased Fayyaz alias Nanna from his house so that Fayyaz alias Nanna would be murdered on 11-4-2005, but the F.I.R. Was lodged on 20-4-2005 at 6- 30 a.m. When the police station was situated at a distance of four miles from the place of occurrence where the deceased Fayyaz alias Nanna was taken away by the accused/appellant.
Learned counsel further submits that the delay in lodging of the F.I.R. Is fatal to the case of the prosecution as during this period the complainant had severally gone to the police station but she had not informed any body; that the motive was not actually set up by the prosecution in the F.I.R., but the complainant Mst. Irshad Bibi while appearing before the learned trial Court stated that the appellant/accused had suspicion that his father had illicit relations with the complainant Irshad Bibi, mother of the deceased Fayyaz alias Nanna, which is a sheer improvement and shows that after lodging the F.I.R. And even subsequent to that with the development of circumstances the story of the prosecution was improved so as to bring the same in line with the circumstances without any substance; that the pointations allegedly made by the appellant/accused are inadmissible in evidence and cannot be treated as legal evidence falling .Within the ambit of Qanun-e-Shahadat Order, 1984, therefore, the recoveries remained inconsequential to the prosecution; that it is strange that dead body of the deceased was dug out from the fields where the crop of wheat was in full blossom; that digging the ditch was not a short while assignment and astonishingly while digging the ditch, putting the dead body therein and then making burial was not witnessed by anybody and that it cannot be a work of one man at least; lastly submits that the recoveries also remain inconsequential to the prosecution case.
10. On the other hand, learned Deputy Prosecutor-General submits that the accused/appellant is nominated in the F.I.R.; that the accused/appellant abducted the deceased Fayyaz alias Nanna on the pretext of taking him to Mela Pir Jiwan and when the deceased Fayyaz alias Nanna did not come back then his mother tried to locate him but could not find any clue; that the complainant Mst. Irshad Bibi lodged the F.I.R. And nominated the accused and during interrogation the accused made disclosure about the-place whert dead body of Fayyaz alias Nanna deceased was buried and also the place where he made fire shot at the deceased; that the accused also disclosed the crime weapon and got recovered the same; that the I.O. Also took into possession crime empties from the place of occurrence and both were sent to the Forensic Science Laboratory and the weapon was matched with the empties; that there is last seen evidence, which was corroborated by the recovery of dead body of the deceased at the pointation of the accused, as well as the recovery of pistol and other incriminating material which established beyond any reasonable doubt that the accused committed the murder of Fayyaz alias Nanna; that the medical evidence also supports the circumstantial evidence and recoveries at the pointation of the accused. Finally submits that the prosecution has proved its case by strong circumstantial evidence, which is supported by corroborative evidence, therefore, the accused/appellant does not deserve any leniency.
11. Arguments heard. Record perused.
12. Before proceeding further, we would like to quote Articles 37, 38, 39 and 40 of Qanun-e- Shahadat Order, 1984, which read as under:-- "37 Confessions caused by inducement, threat or promise, when irrelevant in criminal proceeding.
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
"38 Confession to police officer not to be proved.---No confession made to a police officer shall be proved as against a person accused of any offence."
"39 Confession by accused while in custody of police not to be proved against him.---Subject to Article 40, no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."
"40 How much of information received from accused may be . proved.---When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Article 37 of Qanun-e-Shahadat Order, 1984 speaks about the confession caused by inducement, threat or promise, when irrelevant in criminal proceedings and Article 38 thereof goes on to show the confession to police officer not to be proved as against a person accused of any offence.
Article 39 says that no confession of accused while in custody of police shall be proved as against such person, We see that Article 40 of Qanun-e-Shahadat Order, 1984 is the only exception to Articles 37, 38 and 39, which however goes on to show that how much of information received from the accused may be proved. The difference as found in Article 40 is that when any fact is deposed to by an accused before the I.O. And is discovered in consequence of information received from a person, accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, can be proved against the accused, otherwise any information consequent upon a fact if is discovered that would also qualify irrelevancy and inadmissibility. Therefore, it becomes very material that Article 40 in recent times has been employed by the Investigating Agency by absolutely and totally misconstruing its comprehension.
13. The circumstances of this case would go on to show that the I.O. Fayyaz Ahmad (P.W.12) after ascertaining the facts from the people of the locality went to the house of the accused/appellant and arrested him; the accused/appellant was interrogated and during interrogation he made disclosure that he buried Fayyaz alias Nanna in the wheat field situated in Mauza Herdo Thaheem, after committing murder with pistol; that the accused/appellant took the I.O. To the place where the accused/appellant made fire shots upon the deceased Fayyaz alias Nanna and buried him in the ditch; the I.O. (P.W.12) prepared Fard Nishan Dehi (Exh.PG) of the place of murder and that of the place where dead body was recovered as Exh.PH and both the said memos. Were attested by Hafiz Muhammad Amir (given up P.W.) and Muhammad Imtiaz (P.W.6). Squarely applying the principle of Article 40 of Qanun-e-Shahadat Order, 1984, this practice adopted by the I.O. (P.W.12) does not fall within the ambit of Article 40 and we see that since the accused was in custody of the I.O., therefore, it amounts to confession and self implication which, on the principle contained in Articles 37, 38 and 39, as well as on the principle of inculpation, is not only irrelevant but also inadmissible in evidence, therefore, it cannot be allowed to be used against the person making it as these articles command.
14. As far as the delay in lodging of the F.I.R. Is concerned, the conduct of the complainant was highly objectionable if not ignorable as she had gone once or twice to the police station during those days, but she had not lodged any F.I.R. Qua the abduction as well as murder of her son.
Almost ten days time was consumed by the complainant in search of the deceased and she had gone to her several relatives but finding no clue ultimately came to the Police Station and lodged the F.I.R. And that too without any motive, which shows that till lodging of the F.I.R. There was no motive available against the accused/ appellant. Though it is trite law that the prosecution is not at all bound to set up a motive, but in this case when the complainant entered into the dock she established motive against the present appellant/accused, which she has miserably failed to prove as she herself was a lady of disrepute and came forward to state that the appellant had reservation of illicit liaison between the complainant and his father and he had severally forbade them to avoid the said liaison. This fact was put to the accused/appellant in his statement under section 342 Cr.P.C. And he in reply stated that the complainant Mst. Irshad Bibi had illicit relations with his father. Even otherwise, the trend of cross-examinations as reflected by the depositions made by the P. Ws. Reveals that existed between the parties. We find that the is also a double- edged sword as at one place it can be used as motive for commission of offence and at the other place it can be a reason for false implication and in this case it has been made a good reason for false implication. As has already been mentioned above that the prosecution is not at all bound to set up the motive, but once it sets up the motive then it has to prove the same. It is evident from the record and the existing circumstances of this case that prior to the occurrence there was a bad taste between the parties and thus, false implication of the accused/appellant in this case cannot be ruled out. It is further evident from the record that the deceased was enticed away on 11-4-2005 by the accused/appellant from his house and his dead body was found on 20-4-2005 at the alleged pointation of the accused/appellant Muhammad Aslam. Suffice it to say that when the appellant had strained relations with the complainant then why she had allowed her son to go along with the appellant.
15. As far as the medical evidence is concerned, it gets no corroboration from any nook and corner to advance the case of the prosecution. Ten days time since had elapsed in burial of the deceased, the dead body was found putrefied and smell coming out of the same, the skin was peeling of, the body was swollen and the skull hairs were also peeling of, therefore, it was high time for the maggots starting roaming in and around the dead body. This post death putrefaction phenomena has been stressed by the prosecution, although not objected by the defence but it cannot be overlooked. Thus, in such state of the dead body the postmortem artifacts given by the M.O. In terms of the food present in the intestine and faecal matter may be hypothetical and his assessm ent, but virtually incorrect. Therefore, any clarification on behalf of the M.O. Regarding the time of death and postmortem is his assessment and cannot be perceived as mathematical precision.
16. It is also found that the I.O. (P.W.12) also took into possession the blood-stained earth vide recovery memo. (Exh.PL), after the lapse of ten days, from the place where the deceased Fayyaz alias Nanna was murdered, sealed the same into parcel and also took into possession two crime empties (P-5 & P-6) from the place of murder vide recovery memo. (Exh.PM) and sealed the same into parcel. But the above recoveries are not believable because the place where the deceased was murdered either was so isolated or otherwise nobody went to that place wherefrom after about ten days of registration of the F.I.R. The recovery of empties was effected. The last seen evidence produced by the prosecution consists of Sajjad Ahmad (P.W.8) and Muhammad Ayaz (P.W.9) who saw the deceased in the company of the accused/ appellant in Mela Pir Jewan. P.W.8 and P.W.9 though are closely related to the deceased and their depositions cannot be discarded on this account alone, however, it is imagined that the complainant kept on searching her deceased son for almost ten days and had gone to every relative, but P.W.8 and P.W.9 had not come to her to disclose about the fact that the deceased was last seen in the company of the accused/appellant in Meth. Pir Jiwan during those ten days which consumed for registration of the F.I.R., therefore, the evidence of P.W.8 and P.W.9 cannot be believed on this account and is discarded, which even otherwise is a weak type of evidence and further is silent about the facts as to after the 'Mela' if the deceased at all remained in the company of the accused/ appellant, had gone to which place and till death of the deceased what happened between those two.
17. P.W.6 Muhammad Imtiaz while appearing before the learned trial Court deposed that the accused/appellant in his presence as well as in the presence of Hafiz Muhammad Amir (given up P.W.) pointed out the places where he committed the murder of Fayyaz alias Nanna and buried his dead body. Since the pointation of both the places of recovery and burial of dead body of the deceased was made while the accused/appellant was in custody of the police, therefore, the same either amounts to confession, which is inadmissible in evidence, or it cannot be treated as information disclosing a new fact under Article 40 of Qanun-e-Shahadat Order, 1984, thus is ruled out of consideration. This fact is further strengthened and corroborated by the fact that Exh.PG and Exh.PH contained the factum of physical remand of the accused for the pointation of respective places, which cannot be blended and treated as legal evidence. It is also important to note that since it was the month of April in which wheat crop is usually ready to reap and the land and surface is very hard in those days, therefore, digging the ditch was a cumbersome task for one single person, therefore, it is hard to believe that the accused/appellant alone had dug the ditch and buried the dead body. The report of the Forensic Science Laboratory (Exh.PV) shows that the crime empties as well as the pistol (P-1) were dispatched together to the office on 3-5-2005, therefore, the evidence of recovery supported by P.W.11 Abdul Rashid cannot be believed. Not in toto but there was repercussion about character of the complainant as well as her son, dragging us out of the present scenario and that there can well be somebody else who committed this occurrence.
18. For what has been discussed above, we are of the considered opinion that case against the appellant is doubtful in nature, so result of the above discussion is that this appeal i.e. Criminal Appeal No.672 of 2005 filed by the appellant namely Muhammad Aslam son of Allah Ditta is hereby ACCEPTED and his conviction and sentences recorded by the learned trial Court through the impugned judgment are set aside. Death sentence of the appellant Muhammad Aslam is not confirmed; accordingly Murder Reference No.80 of 2006 is answered in the NEGATIVE. He shall be released forthwith, if not required in any other case.