1. JUDGMENT IMAM BUX BALOCH, J. Appellant Muhammad Saleh Junejo was charged and tried for committing murder of Wali Muhammad Brohi and vide judgment dated 30-9-2004 he was convicted by the learned 1st Additional Sessions Judge, Jacobabad, and sentenced to suffer imprisonment for life and to pay compensation of Rs.50,000 in terms to section 544-A, Cr.P.C. To be paid to the legal heirs of deceased and in case of default in payment of compensation of further undergo S.I. For six months. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant. The appellant has filed this appeal challenging his conviction and sentence.
2. Briefly, the facts of the prosecution case are that on 11-4-2002 complainant Noor Muhammad son of Dost Muhammad by caste Brohi, resident of A.D.C. Colony, Jacobabad, lodged F.I.R. At Police Station Saddar, Jacobabad, stating therein that he owns donkey-cart, which is being run by his son, namely, Wali Muhammad, aged about 14/15 years. On the day of incident viz. 11-4-2002 at morning time, his son Wali Muhammad took away the donkey-cart from the house for doing labour towards Jacobabad Town. At noontime, complainant Noor Muhammad came to know that unknown persons have committed murder of his son and have thrown down`his dead body at Shambi Shah in Lal bushes, on which complainant, his another son Atta Muhammad and maternal cousin Hooran went to Shambi Shah, where they found the dead by of Wali Muhammad lying in Lal bushes and found the donkey-cart standing there. Complainant party also saw that Wali Muhammad had injuries on his face and other parts of body. The complainant with the help of above-named witnesses took the dead body of Wali Muhammad on donkey-cart to Police Station Saddar, Jacobabad, where he lodged the F.I.R., stating therein that unknown persons have committed murder of his son Wali Muhammad by causing him injuries, hence the F.I.R. Was lodged as stated above.
3. After registration of F.I.R. A.S.-I. Shabir Ahmed Sahto conducted investigation and he checked the dead body of deceased Wali Muhammad, prepared inquest report in presence of mashirs Ali Muhammad and Lal Muhammad, recorded the statements of witnesses Atta Muhammad and Horan, accompanied the complainant and mashirs to the place of wardat, visited the same, secured Chabba (shoes) and one original identity card in the name of Muhammad Saleh Junejo, and prepared such mashirnama of wardat. Then on 11-4-2002 Shabir Ahmed Sahto recorded further statement of complainant Noor Muhammad, and on 22-5-2002 recorded statements of P.Ws. Malik Khan and Niaz Ahmed, Muhammad Bux and Ali Muhammad. Thereafter; on 30-5-2002 he arrested accused Muhammad Saleh, prepared such mashirnama and on completion of investigation he submitted challan against accused/appellant Muhammad Saleh showing one Haji Panjal as an absconder.
4. The prosecution during trial examined complainant Noor Muhammad, P.Ws., Atta Muhammad, Niaz Ahmed, Ali Muhammad who was also mashir, Dr. Nazir Ahmed, who conducted postmortem of deceased Wali Muhammad, A.S.-I., Shabir Ahmed Shato, who registered the F.I.R., A.S.-I.. Shabir Ahmed Shato, Investigating Officer of the case, Tapedar Qadir Bux. P.Ws., Malik Khan and Muhammad Bux were given up. Thereafter, statement of accused was recorded under section 342, Cr.P.C. Thereafter, the learned trial Court handed down the impugned judgment, as stated hereinabove.
5. I have heard Mr. Asif All Soomro, learned counsel for the appellant, Mr. Abdul Jabbar Lashari, learned counsel for the complainant and Miss Rubina Dhamrah, learned State Counsel.
6. The learned counsel appearing for the appellant contended that P.W. Atta. Muhammad and complainant are not the eye-witness of the alleged incident. He further contended that the name of appellant was not given in the F.I.R. And it is stated by the complainant in the F.I.R. That some unknown persons have killed his son. He further contended that second set of witnesses, namely, Niaz Ahmed and Muhammad Bux had only named the appellant in their 161; Cr.P.C. Statements recorded after one month and eleven days of the alleged incident i.e., on 22-5-2002. He further contended that P.W. Horan and Muhammad. Bux were not examined by the rosecution. Mr. Soomro further contended hat P.W. Atta Muhammad is son of complainant, P.W. Niaz Ahmed, who claims to have last seen the deceased with the appellant and three others, is also a relative of the complainant. He further contended that the evidence of this witness i.e., Niaz Ahmed is not confidence-inspiring and it has no corroboration at all from any corner. Not Only this, but mashir All Muhammad is brother of the complainant. He further contended that the alleged extra judicial confession of the appellant allegedly made before P.W. Ali Muhammad, real uncle of the deceased, is unpersuasive, hence cannot be given weight and conviction cannot be based against ,a person charged with the murder on such piece of evidence. Mr. Asif further contended that recovery of Chabba (shoe) and the NIC of the appellant also does not connect the appellant with the commission of murder of the deceased. Lastly he contended that the case of prosecution is riddled with so many serious doubts, therefore, the impugned judgment is liable to be set aside and the appellant is entitled to be acquitted.
7. Mr. Abdul Jabbar Lashari, on the other hand, supporting the impugned judgment, contended that the prosecution has fully proved the guilt against the appellant beyond any shadow of doubt. He contended that the appellant along with three others was seen by P.Ws Niaz Ahmed and Muhammad Bux with the deceased on his donkey-cart on the day of incident and on their enquiry it was appellant who had replied them that the donkey-cart of the appellant was hired by them for going to Shambi Shah. He further contended that the recovery of Chabba (shoe), which after the arrest of appellant fitted in his feet, and the recovery of NIC of the appellant from the place of wardat, fully connect him with the commission of offence. He further contended that there is also confession of the appellant before P.W Ali Muhammad, which finds support from the evidence of P.W Ali Muhammad, further statement of complainant and the medical evidence.
8. Miss Rubina Dhamrah, learned State Counsel, adopting the arguments of learned Advocate for the complainant, supported the impugned judgment and contended that the learned trial Court has rightly convicted the appellant, which does not call for any interference by this Court.
9. In order to see whether the judgment of conviction passed by the learned trial Court is based on correct appraisal of evidence or not, I would like to reappraise the prosecution evidence.
10. Firstly, as is evident from the record, this case is entirely based upon three pieces of evidence, namely, (1) evidence of last seen, (2) extra-judicial confessions of appellant before P.W Ali Muhammad, and circumstantial evidence.
11. So far the factum of unnatural death of deceased Wali Muhammad is concerned, in this regard the evidence of Medical Officer Dr. Nazir Ahmed has gone totally unshaken and the learned trial Court after discussing the evidence of Medical Officer has held in unequivocal terms that the deceased died unnatural death and such findings recorded by the learned trial Court are not open to any exception.
12. Complainant. Noor Muhammad has stated in his evidence that on the day of incident at noontime he came to know that his son Wali Muhammad was lying dead near Pir Shambi Shah, Jacobabad, whereupon he along with Atta Muhammad and Horan went there and found dead body of his son Wali Muhammad lying near the bushes. He checked the dead body of Wali Muhammad and found injuries on his face and other parts of body and donkey-cart of his son was available near the dead body. He then took the dead body on donkey-cart to Police Station Saddar, Jacobabad, where F.I.R. Was lodged by him against unknown persons. The complainant nowhere in his evidence has stated about the availability of NIC of the appellant at the place of wardat or any Chhabba (shoes). Complainant has stated that after one month and 15 days of the incident he made further statement before police that he was told by Niaz Ahmed and Muhammad Bux that they had seen deceased Wali Muhammad near Phatak on the donkey-cart along with Panjal Sundrani, appellant Muhammad Saleh Junejo and two unidentified persons. He deposed that after two months of the incident appellant Muhammad Saleh and Panjal Sundrani confessed before brother P.W Ali Muhammad that they committed murder of Wali Muhammad. He, however, stated in last that police had secured the copy of identity card of the appellant and one shoe Chabba type from the place of incident.
13. In cross-examination he admitted that mashir/P.W Ali Muhammad, before whom appellant is said to have made extrajudicial confession, is his brother. He further stated in cross-examination that when accused made extra-judicial confession before Ali Muhammad in his Otaque; one Malik Shah was also available there. He further admitted that Niaz Muhammad and Muhammad Bux, who claimed to have last seen the deceased and the appellant., are related to him. He further stated that after searching for about half an hour they found the dead body of deceased.
14. P.W Atta Muhammad has stated that on the day of incident he along with his father and P.W Horan were present at Habib Chowk, Jacohahad with his pushcart of vegetables, when one person informed them that some culprits after killing his brother Wali Muhammad had thrown down him near Shambi Shah and on such information he, his father Noor Muhammad and P.W Horan went to Pir Shambi Shah on donkey-cart and found the dead body of deceased having injuries on face and other parts of body. They took the dead body on donkey-cart to Police Station: Saddar, where complainant lodged the F.I.R. The evidence of this witness is also silent about the availability of any NIC of Chhabba (shoes) at the place of incident near the dead body of deceased.
15. This witness in cross-examination stated that they found the dead body of deceased after 2/3 minutes. He further stated in cross-examination that his statement was recorded by the police after one and half months of the incident.
16. Then is the evidence of P.W Niaz Ahmed, who claims to have last seen the deceased with the appellant and others. The evidence of this witnesses is of much importance. He deposed that he and his brother Muhammad Bux along with their family had gone to Pir Shambi Shah . For giving Sukh and on return when they reached near Mouladad Phatak, they saw four persons Muhammad Saleh Junejo, Punjal Sundrani and two unidentified persons sitting on the donkey-cart of. Wali Muhammad, who was driving his donkey-cart and on their enquiry Muhammad Saleh and Punjal Sundrani told them that they had hired the donkey-cart of Wali Muhammad for going to shrine of Pir Shambi Shah. He further stated that they then left their family in the house and went to Mastoong Baluchistan with their work and on their return' after one and half months they were informed by their women that Wali Muhammad had been killed. On receipt of such information he and his brother Muhammad Bux went to the house of Wali Muhammad for condolence, where they told complainant Noor Muhammad that they had seen four persons accompanying Wali Muhammad, who were Muhammad Saleh Junejo; Panjal Sundrani and two unidentified persons.
17. Then they went to their house and on next day they were examined by the police..
18. In cross-examination this witness deposed that deceased Wali Muhammad was of his brotheri (community), but he was not related to him, while complainant admits that they are related inter se.
19. P.W. Ali Muhammad Brohi is the mashir of seeing the dead body, visiting the place of wardat, securing blood-stained earth, identity card of appellant and shoes (Chabba) from the place of wardat. He is also mashir of arrest of accused, and putting on the recovered shoes (Chabba) to appellant to test its fitting in the feet of appellant/accused. He stated that in his presence police saw the dead body of deceased, visited place of wardat, secured blood-stained earth, identity card of appellant and shoes (chabba) from the place of wardat. He further stated appellant was arrested in his presence and shoes (Chabba) recovered from the place of wardat was tested and found fit in the feet of accused/appellant and that the appellant admitted that the NIC and the shoes (Chabba) belonged to him. This witness also claims to have made further statement before police, wherein he stated that the appellant and co-accused Punjal Sundrani confessed their guilt before him that, they tried to-rob donkey-cart from the deceased, during which deceased raised cries, therefore, they gave fist blows and throttled him, in result whereof he died.
20. In cross-examination he admitted that complainant is his brother.
21. A.S.-I. Shabir Ahmed Sahto, Investigating Officer of the case, deposed that on 11-4-2002 after receiving F.I.R. Of this case, he checked the dead body of deceased Wali Muhammad and prepared inquest report in presence of mashirs. He then recorded statements of witnesses Atta Muhammad and Horan and then accompanied the complainant and mashirs to place of wardat. He secured one Chabba (shoe) and one original identity card in the name of Muhammad Saleh Junejo. He secured blood-stained earth and prepared such mashirnama. He further stated that on 21-5-2002, complainant Noor Muhammad went to Police Station and told that his relatives Malik Khan and Niaz Ahmed came to him and informed that on 11-4-2002 they after giving Sukh at Shambi Shah while returning back to Jacobabad had seen Wali Muhammad on donkey-cart along with Panjal Sundarni, Muhammad Saleh Junejo and 2/3 other persons. He further stated that complainant further told that Malik Khan and Niaz Ahmed told him that they thereafter went to Jacobabad and then went to Quetta with their work and on their return on 21-5-2002 Malik Khan and. Niaz Ahmed returned back from Quetta and told him above facts, whereafter complainant got recorded his further statement. He then arrested Muhammad Saleh and prepared such mashirnama. He made the accused to wear Chabba (shoe), which fitted to the accused.
22. Now the most important issue is whether the prosecution through the evidence of its witnesses proved guilty appellant beyond reasonable shadow of doubt or not that the appellant committed murder of deceased. The evidence of last evidence is furnished by P.W. Niaz Ahmed, who claims that on the day of incident he and his brother Muhammad Bux along with their family had gone to Pir. Shambi Shah for giving Sukh and on return to their village at Mouladad Phatak at 11-00 a.m., they noticed. Four persons Muhammad Saleh Junejo and Panjal Sundarni and two unidentified persons sitting on donkey-cart of Wali Muhammad and Wali Muhammad was driving the donkey- cart. He further stated that after leaving the family at house he along with his brother Muhammad Bux went to Mastoong Baluchistan. The evidence of this witness does not find support from any corner. His brother Muhammad Bux, who accompanying him and had seen the deceased in the company of appellant and others has not been examined by the prosecution. Other most important factor relating to the evidence of this witness is that he is relative of complainant. His statement that on return from Sukh he and his brother left the family at home and they A both went away to Mastoong Baluchistan and on return after one and half months they came to know about the death of Wali Muhammad is not worth credence simply for the reason it is not believable that a person having gone out of his town for the purpose of earning livelihood would remain totally out of contact with his family, so their evidence that they came to know about the death of deceased only on return from Baluchistan is not believable. According to complainant Noor Muhammad on the day of incident- deceased Wali Muhammad went with donkey-cart and at noontime he came to know that Wall Muhammad was lying dead near Pir Shambi Shah, Jacobabad, while, according to Dr. Nazir Ahmed Soomro, who conducted postmortem of deceased, he received the, dead body on 11-4-2002 and started postmortem at 8.50 p.m. According to the doctor, time between death and postmortem was 48 to 72 hours. This shows that the deceased had expired more than 48 hours prior to 8-50 which totally wipes out the claim of complainant that on the day of incident deceased left the house along with the donkey-cart and the claim of P.W Niaz Ahmed that at 11-00 a.m., at Mouladad B Phatak, he came across the deceased along with appellant and others. In the case of Rehmat v. State (PLD 1977 SC 515) the Hon`ble Supreme Court while dealing with the question relating to the evidence of last seen observed as follows:-- "On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder.
23. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the promixity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company."
24. In the present case, the recovery allegedly made from the place of wardat is of NIC of the deceased and one Chhabba (shoes). This recovery, in my humble view, does not connect the appellant with the commission of offence, particularly, with the charge of murder. No motive, weak or strong, is shown against the appellant to kill the deceased. The other surprising fact is that according to P.W. Ali Muhammad, the appellant while confessing his guilt before him disclosed that they wanted to rob the donkey-cart from the deceased, but as per complainant and P.W. Atta Muhammad when they found the dead body, the donkey-cart of the deceased was also available there. Moreover, there is ostensible discrepancy in the ocular version and the medical evidence.
25. The delay of one and half moths in supplementary statement made by the complainant, so also in recording statement under section 161, Cr.P.C. Of P.W. Niaz Ahmed, where they implicated the appellant with the charge of murder of deceased Wali Muhammad, is also fatal to the prosecution.
26. Another thing which is worth notable is that the extra judicial confession is said to have been made by the appellant after one and half months of the incident. The way in which the chain of circumstances set-forth by the prosecution through highly interested witnesses, who are closely related inter se creates reasonable doubt in the prosecution case. In the case of Wali Muhammad v. The State (1982 PCr.LJ 798), a Division Bench of this Court held as under:-- "In these circumstances in the absence of any other corroborative piece of evidence we are not prepared to place reliance on the sole testimony of Abdul Jabbar (Prosecution Witness No.2) in this case. Even if it be believed that the deceased was seen last alive in the company of the accused, the circumstances in the case are not such, that this evidence alone is sufficient to, uphold the conviction of accused for murder of the deceased. We would accordingly refuse to confirm the conviction and sentence ' awarded to the accused by the Additional Sessions Judge, Sukkur and accept the appeal setting aside his conviction under section 302, P.P.C."
27. There are also so many contradictions and improbabilities in the evidence of prosecution witnesses. Malik Shah, in whose presence the appellant is said to have confessed his guilt before P.W. Ali Muhammad, has not been examined. Therefore, the evidence of P.W. Ali Muhammad to the extent of implicating the appellant on the basis of such extra judicial confession carries no weight.
28. The upshot of the above discussion is that the case of prosecution is not free from doubts. In the circumstances, the appeal is allowed and the conviction and sentence awarded to the appellant by the learned trial Court vide impugned judgment is set aside. The appellant shall be released forthwith if not required in any other case.