Appellants Manzoor Hussain son of Muhammad Din, Mirasi by case and Rashid Ahmad son of Din Muhammad, case Arain, were tried along with Muhammad Iqbal, by the learned Additional Sessions Judge, Sheikhupura, for offence under section 302/404/201/34, P. P. C. ; vied judgment dated 14-1-1979, they were convicted and sentenced to imprisonment for life and a fine of Rs. 500 each or in default thereof, further six months' R. I. Each under section 302/34, P. P. C. ; four years' R. 1.
Each under section 201/34, P. P. C.
They were further directed to pay a sum of Rs. 5,000 each to be paid to the heirs of the deceased a,, compensation under section 544-A, Cr. P. C. Or in default, further six months' R. I. As the case may be. The sentences were ordered to run concurrently. Muhammad Iqbal co-accused, was given benefit of doubt and acquitted.
2. They have appealed.
3. Occurrence, allegedly, took place in the area of village Chakrali, Police Station, Narang. Matter was reported to the Police by Abdul Ghafoor (P. W. 5), grandfather of deceased Abdul Wakil, on 1C- 6-1976 at 4-30 p. m. About one year and three months after the occurrence.
4. The prosecution case in brief is that Abdul Ghafoor complainant was resident of village Mirza Virkan, P. S. Saddar, Sheikhupra. He had three sons, namely Shabbir Ahmad Nazir Ahmad and Shakil Ahmad. Deceased Abdul Wakil was the son of Shabbir Ahmad. Deceased and his father resided together in a house. Deceased was on visiting terms with Yaqub approver (P,. W. 1), the two appellants and Iqbal (acquitted accused). About one year and three months before the occurrence, one day his grand son Abdul Wakil (deceased) did not turn back. Next morning Muhammad Rafiq (P. W. 6) and Abdul Rashid (P. W. 7) told the complainant that a day before at noon time they had seen the deceased going towards the metalloid road in the company of the appellants, the approver and acquiitted accused Iqbal. On enquiry the P. Ws. Were told that they (the accused) were going to Lahore to see a film. The complainant on the basis of this information went to the house of each accused but they were absent. Muhammad Hanif, a maternal uncle of the deceased, also told the complainant that a day before, the deceased had taken Rs. 500 from him. Later, the accused came back in the village and on enquiry told the complainant that the deceased had gone to see his relations. Complainant kept on searching the deceased and even contacted his relations but to no avail. In the meantime Yaqub approver (P. W. 1) shifted to Chuharkana. The complainant in the company of Hanif son of Gulsher (not produced) and Abdul Latif (P. W. 9) went to Chuharkana and met Yaqub approver. On their enquiry said Yaqub narrated them the entire story. He told them that after having seen the cinema at Lahore, the accused took the deceased to B. R. B. Canal in the area of village Chakrali on the pretext that they would spent night with a friend there. Then Iqbal (acquitted accused) took the deceased into a japha and Manzoor Hussain appellant fired a shot with his carbine hitting the temple of the deceased.
Deceased fell on the ground and when he was lying prone, Rashid Ahmad appellant inflicted knife blows saying that he was teaching him (the deceased) a lesson for illicit liaison with his daughter Nasreen. Deceased succumbed to the injuries there and then. Then the two appellants and Iqbal (acquitted accused) threw the dead body in the canal. Lqbal co-accused removed the wrist watch and chaddar from the person of the deceased. The appellants took money out of the deceased's pocket. Iqbal handed over the watch to the appellant. After having learnt of this the complainant came back in the village and, as noticed earlier, lodged F.
1. R. Exb. P. G.
5. After registering .The case Khadim Hussain S. H. O. (P. W. 15) entered upon the investigation. He arrested the appellants and co-accused Iqbal from Muridke on 27-6-1976. Yaqub approver was arrested on 28-6-1976. He secured wrist watch P. 1 from the wrist of Yaqub (P. W. 1) vide Memo Exh.
P. H. Zulfiqar A.I A. S.1. (P. W. 10) also partly investigated the case. On 5-7-1976 he recovered chaddar P. 2 on the pointing out of Iqbal co--accused. The same was taken into possession vide memo. Exh.
P. B. Comp--lainant Abdul Ghafoor identified wrist watch P. I and Chaddar P. 2, as of the deceased.
Yaqub accused volunteered to become an approver. Khadim Hussain S. H. O. Got his statement (Exh. P. A.) recorded by the Magistrate.
Asmatullah A. S. I. (P. W. 4) also investigated the case, partly. Manzoor Ahmad appellant while under custody led to the recovery of pistol P. 4 from his residential kotha. The same was taken into possession vied memo. Exh. P. D. Similarly, appellant Rashid Ahmad while in Police custody led to the recovery of knife P.
3. It was taken into possession vied memo. Exh. P. C.
6. Appellants and the acquitted accused, at the trial, denied the allega--tions and pleaded innocence. They stated that the P. Ws. Had falsely deposed against them due to enmity and at the instance of the Police. They led no evidence in defence.
7. Prosecution's case, at the trial, rested on the circumstantial evidence----Evidence of Yaqub approver (P. W. 1) ; the recoveries ; the motive extra --judicial confessions of the appellants before Hassan Muhammad (P. W. 12) and Abdul Ghaffar (P. W. 13) and confession of approver before Abdul Ghafoor (P. W. 5) and Abdul Latif (P. W. 9).
8. Learned trial Judge accepted the testimony of Yaqub approver (P. W. 1) and sought corroboration from extra judicial confession made by Manzoor Ahmad and Rashid Ahmad appellants ; the evidence of deceased having been last seen in the Company of the accused and the recovery of knife P. 3 and pistol P. 4 at the instance of the appellants. He, however, did not believe the recovery of Chaddar P. 2 at the instance of 1qbal co-accused. Extra judicial confession alleged to have been made by Iqbal co-accused before Muhammad Ismail P. W., was rejected. He, therefore, finding no cause against 1qbal, gave him the benefit of doubt and acquitted him.
9. 1 have heard the learned counsel for the appellants and learned State counsel at a great length.
It was argued that the trial Court was not justified in believing the approver's evidence as it is replete with contradictions. It was emphasized that an approver's evidence needs a careful scrutiny before the same is acted upon. The trial Judge has not properly applied his mind in placing reliance on the testimony of the approver which if judged on the recognized standards is not worthy of reliance. It was taken through the testimony of the approver (P. W. 1) and pointed out the glaring discrepancies in it. It was then contended that in any case the same could not be used without necessary corroboration which was not forthcoming on the file. The witnesses of extra judicial confession i. e. Abdul Ghafoor (P. W. 5) and Abdul Latif (P. W. 9) are relations of the deceased, therefore, in the circumstances, no reliance could be placed on their testimony.
Similarly, the witnesses who had last seen the deceased in the company of the accused, are not worthy of credence. Muhammad Rafiq (P. W. 6) and Abdur Rashid (P. W. 7) are Rajputs by case and are from the brotherhood of the complainant party. Abdur Rashid P. W. When examined at the trial, was produced in handcuffs as he was involved in a murder case. Therefore, they are interested witnesses. Out of the recovery witnesses of knife P. 3 and pistol P. 4 Nazir Ahmad was given up. Faqir Muhammad and Asmatullah A. S. I., are not consistent in their stand. In the end it was contended that the dead body having not been recovered the recovery of knife P. 3 and pistol P. 4 was of no avail to the prosecution. In the absence of the medical evidence the same could not be used to connect the appellants with the crime.
10. Learned State counsel, on the other hand, adopted the reasoning of the learned trial Court and highlighted them to some extent.
11. 1 have considered the arguments of both the parties and have go on through the record carefully. The prosecution case mainly hinges on the evidence of Muhammad Yaqub approver (P.
W. 1). The factum of the deceased having been last seen in the company of the appellants ; their extra judicial confession and incriminating recoveries have been used in corroboration of the same.
12. It may be noticed at the out set that the rule that the evidence of an accomplice should not be accepted unless there is adequate corroboration in material particulars not only in respect of the commission of the crime but also in respect of the participation of each of the accused in the commission of that crime, is too well known. Therefore, whether there exists adequate corroboration to sustain the conviction of the appellants is yet to be seen in the light of the arguments of the learned counsel for the appellants.
13. Manzoor appellant is alleged to have made extra-judicial confession before Hassan Muhammad (P. W. 12) whereas Rashid appellant allegedly made extra-judicial confession before Abdul Ghaffar (P. W. 13). Having gone through their evidence I am of the view that both these witnesses are thoroughly liars. Their evidence is replete with material contradictions.
Hassan Muhammad P. W. Is closely related to the complainant party as his niece was married to Muhammad Shakil, uncle of the deceased. This witness is neither a lambardar nor a member of Panchayat. He owned only 8/9 killas of land. In cross-examination he stated that accused Manzoor was known to him for the last ten years and that Manzoor accused had never visited him before he confessed the guilt before him. He further stated that he had no friendship with accused Manzoor.
The witness is aged 75 years. The accused is a young man. The statement of the witness "I had stayed at night in the baithak with the accused Manzoor because I apprehended that the accused may not run away", does not seem to be plausible. At another place the witness stated :- "I myself had taken the accused to a separate place and accused had not suggested that he should be taken to a separate place."
Similarly, no reliance can be placed on the evidence of Abdul Ghaffar (P. W. 13). He is related to the complainant party and is neither a Lambardar nor a Chaukidar. He is resident of village Naiwala situated at a distance of 25/26 miles from village Mirza Virkan. He states that he took the accused Rashid to P. S. Narang and produced him before the Police. But he is belied by the statement of Khadim Hussain P. W., S. H. O. Who stated that "on 27-6-1976, I arrested accused Manzoor, Rashid and Iqbal from Muridke." In the circumstances no reliance can be placed on the testimony of Hassan Muhammad and Abdul Ghaffar P. Ws.
14. Muhammad Rafiq (P. W. 6) and Abdur Rashid (P. W. 7) had allegedly last seen the deceased in the company of the appellants. Abdur Rashid P. W. Is from the brotherhood of the complainant party. This witness when examined at the trial was brought in handcuffs as he was involved in a murder case. He is aged 60 years. In the cross-examination he made improvement over his earlier statement, in that, he stated that "I do not remember whether I stated before the police that P. W.
Rafiq was coming from City Sheikhupura before, we met the accused." He was duly confronted with his statement before the Police where there was no reference to the fact that P. W. Rafiq was coming from Sheikhupura, Muhammad Rafiq P. W. Also belongs to the brotherhood of the complainant party. His statement similarly suffers from contradictions. He also made improvements over his police statement and was duly confronted in this regard. The purpose of his visiting Sheikhupura i. e. For purchasing commodities also does not seem to be probable as there were shops in the village. 1, therefore, feel that both the witnesses never met the accused and the deceased.
15. This brings me to the incriminating recoveries. The dead body of the deceased was not recovered. Therefore contention of the learned counsel for the appellants that the recovery of knife P. 3 at the instance of Rashid appellant and pistol P. 4 at the instance of appellant Manzoor is of no avail . To the prosecution, has merit. Therefore, the same could hardly be used to connect the appellants with the crime. Moreover, no crime empty was recovered from the spot. Last but not the least, the testimony of the witnesses who attested the recovery memos is full of contradictions.
According to the witnesses the place of recovery of knife P. 3 and pistol P. 4 were locked and the locks were broken. There is no mention in the recovery memos that the places were. Locked. Faqir Muhammad P. W. Is resident of village Mirza Virkan from where the recovery was to be effected.
According to him he was called by the Police at Police Station Narang, about 50 miles, from village Mirza Virkan and from there he again was taken to village Mirza Virkan. Asmatullah A. S. 1. However, stated that he had not summoned the recovery witnesses at Police Station, Narang and they had come there of their own accord. According to him they were present when he interrogated the accused. The recovery witness i. e. Faqir Muhammad is neither a Lambardar nor a member of Panchayat. There were two Lambardars and two Chawkidars in village Mirza Virkan but none was called to witness the recoveries. For all this I am of the considered view that these recoveries are of no use to the prosecution. The same therefore, are discarded.
16. This brings me to the testimony of the approver i. e. Muhammad Yaqub (P. W. 1). I could have rejected the same on the short ground that there is nothing to' corroborate the same. I have, however, gone through the same and noticed that there are material contradictions between the statement before the Magistrate and the one made at the trial. He is also contradicted by other witnesses. At one place he states:--- " ------------.Then I went to P. W. Abdul Sattar and told him about the occur:rence and requested him for producing me before the Police."
Abdul Sattar (P. W. 9) however, states :- "......P. W. Muhammad Yaqub was under arrest at P. S. Muridke and he removed the wrist watch from his wrist and produced the same before the Police."
He (the approver) then states at the trial:- "I had stated before the Magistrate that when I and other accused left village Mirza Virkan for going to Lahore, P. Ws. Rashid and Ghaffar met us in the way and enquired from us as to where we were going and we told them that we are going to see a film."
He was duly confronted with his earlier statement before the Magistrate where he did not state so.
It would therefore, be unsafe to sustain conviction on the solitary statement of the approver.
17. The upshot of the above discussion is that the prosecution has not been able to establish its case beyond doubt. The appeal is accordingly accepted. Conviction and sentences of the appellants are set aside and they are acquitted. They shall be set at liberty forthwith unless they are required to be detained in connection with any other case.