Muhammad Qasim Khan, J.--Shahab-un-Din and Muhammad Bilal were tried by learned Sessions Judge, Bahawalpur in case FIR No, 397/2002 under Sections 302/364/201/34 PPC registered with Police Station Civil Lines, and on conclusion of the trial vide judgment dated 22.5.2006 they both were convicted under Sections 364/34 PPC and sentenced to rigorous imprisonment for seven years each with a fine of Rs, 10,000/- each, in default to further undergo six months simple imprisonment each; convicted under Section 201/34 PPC and sentenced to seven years RI each with a fine of Rs, 10,000/- each in default to further undergo six months SI. Both were also convicted under Sections 302-b/34 PPC and Shahab-ud-din was sentenced to death plus imposition of compensation of Rs, 100,000/- to be paid to the legal heirs of the deceased and in default to further undergo six months SI. As regards Muhammad Bilal though he was also convicted under Section 302-b PPC but he was sentenced to imprisonment for life with a compensation of Rs, 100,000/- to be paid to the legal heirs of the deceased and in default to further undergo six months SI. All the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was extended. Against their above convictions and sentences Shahab-ud-Din has filed Criminal Appeal No, 173/2006 whereas, Muhammad Bilal preferred Criminal Appeal No, 177-J/2006. The complainant has also filed Criminal Revision No, 192/2006 seeking enhancement in the amount of compensation against Shahab-ud-din and Criminal Revision No, 193/2006 seeking enhancement of sentence qua Muhammad Bilal, whereas. Murder Reference No, 69/2006 has been sent by the learned trial Court with regard to sentence of death of Shahab-ud-Din for confirmation or to be decided otherwise. All these five matters are being decided by this single judgment.
2. Muhammad Ashfaq (PW-1) complainant got lodged the above FIR on 1.11.2002 at 3.50 a.m. to the effect that on 29.10.2002 he along with other family members was present in the house when at about 1.30/2.00 noon. Shahab-ud-din along with his driver Muhammad Bilal came on Corolla Model-1986 and asked his brother Hafiz Muhammad Fayyaz that after his kidney operation he was laying in the house and took him along for outing and told the complainant that they would come back after taking night meal. As Hafiz Muhammad FAyyaz did not return till late at night, the next morning the complainant along with his other brother Altaf went to the house of Shahab-ud-Din who on knock of the door came out and showed lack of knowledge about non-return of Fayyaz and told that Fayyaz had left him before Maghrib, and Shahabud-Din also accompanied the complainant in search of Fayyaz. Muhammad Arshad and Muhammad Ijaz (cousins of the complainant) told that on the night of 29.10.2002 at about 8.00 p.m. they had seen Fayyaz coming out of the Car along with Shahab-ud-din, Muhammad Bilal and Muhammad Arif and saw them entering the house of Shahabud-din. They further disclosed that next morning they heard that Shahab-ud-din and his driver Muhammad Bilal were search for some laborer for laying some sewerage line. As whereabouts of Fayyaz were not known the complainant laid suspicion over Shahab-ud-din. On the night of 1.11.2002 at about 2.30 (mid night) the complainant along with Altaf, Mushtaq 'and Maqbool went to the house of Shahab-ud-din, who confessed that he with the help of servants Muhammad Bilal and Muhammad Arif had murdered Muhammad Fayyaz by throttling and had hidden the dead body on the night of 29.10.2002 in a drum and next day they buried the dead body in a pit in front of door of the house. It was further alleged in the FIR that Shahab-ud-din had disclosed that as he had to return Rs, 50,000/- to Fayyaz who was repeatedly demanding the same, therefore, he was done to death.
3. After recording of the FIR Abid Akhtar SHO PW-11, Shahabud-din led him to the place of occurrence and pointed out the place where dead body of Fayyaz had been buried and dead body was recovered identified by Altar and Riaz PWs. The I.O. prepared recovery memo. Ex. PB and took into possession kassi vide memo. E.PC. Thereafter, Shahab-ud-din led to the recovery of pillow P-4, carpet P-3, tablets P-5/1-10 and empty packet of tablets P-6, which were taken into possession vide memo. Ex. PE. Shahab-ud-din also got recovered string P-7 which was taken into possession vide memo. Ex. PF, sleeper P-8/1-2 Ex.PG, wrist watch P-9 vide memo. Ex.PH and drum P-10 which was secured into possession vide memo. Ex.PJ. After post-mortem the last worn clothes of the deceased Shalwar P-12, Kameez P-13, Vest P-14 and Durri P-15 which were taken into possession vide memo. Ex. PL. On .2.11.2002 Shahab-ud-din also got recovered car P-1 taken into possession vide memo. Ex. PM, identity card of the deceased P-16 and registration book P-17 taken info possession vide memo. Ex. PN. Shahab-ud-din also led to certain other recoveries, whereas, Muhammad Bilal was arrested on 20.12.2002 and Arif on 22.12.2002. The site-plan of the place of occurrence was brought on the record as Ex.PK whereas, site-plans of the place of recovery of Car, place of recovery of identity card and recovery of cushion, etc. are PM/1, Ex.PN/1 and Ex.PO/1, respectively. The I.0 also prepared injury statement Ex.PR and inquest report Ex.PQ. After other usual investigation and completion of other formalities challan was sent to Court. The accused were charge sheeted, to which they pleaded not guilty and prosecution produced eleven witnesses, apart from tendering the report of bacteriologist Ex.PT/1. On close of the prosecution case, the accused/appellants when examined under Section 342 Cr.P.C. refuted the prosecution evidence and stated that evidence was falsely fabricated against them. They however, did not opt to make statements, under Section 340(2) Cr.P.C. on oath in disproof of allegation nor produced any defence witness. Ultimately, above conviction and sentence was recorded against him by the learned trial Court.
4. Learned counsel for the appellant Shahab-ud-din has argued that it was a blind occurrence and there is no evidence on the file vis-a-vis murder of deceased Muhammad Fayyaz. It has also been argued that false evidence was fabricated during investigation of this case and the appellant did not either point out the place from where the dead body of the deceased was recovered or pointed out the place where the deceased was buried after having murdered him. It has been argued that mere pointing out of the appellant where the dead body was buried cannot be treated as admissible piece of evidence because in consequence of the pointing out of the appellant no fact was discovered, therefore, this piece of evidence is hit by Article 40'of the Qanoon-e-Shahadat Order, 1984. It has been further argued that evidence of extra-judicial confession made by the appellant Shahab-ud-dIn does not appeal to reasons because when the appellant made statement no case was registered against the appellant nor the appellant was suspected to be involved in the commission of the crime. It has been argued that no motive has been mentioned in the FIR but during investigation a false motive was brought on the record. Learned counsel for the appellant has vehemently contended that the prosecution story is inconsistent inter-se as PW-4 Sajid Cheema has deposed before the learned trial Court that the appellant along with his co- accused Arif (since been acquitted) put poisonous tablets in a bottle and got it administered to, the deceased, where after the deceased died, while in the report of the Chemical Examiner no poisonous substance was found in the visceras of the dead body. It has been argued .that evidence of extra judicial confession is always taken as weakest type of evidence and there was no occasion with the appellant to make any extra-judicial confession before the complainant and other PWs. It has been further contended that prosecution has concocted the story that Shahab- ud-din appellant was apprehended by the complainant and the PWs when he made extrajudicial confession before them and that, he was taken to the Police Station. The learned counsel referred to police proceedings written on the foot of the FIR Ex.PA to the effect that LO did not make mention about the above fact therein. It has been contended that the dead body was not taken into possession on the pointing out of the appellant and the recoveries have also been planted upon the appellant. Lastly, it has been submitted that the entire case of the prosecution is replete of doubts; therefore, appeal may be accepted.
5. The learned counsel appearing for Muhammad Bilal convict/appellant argued that there is no evidence either of murder or of causing of disappearance of dead body, against the appellant.
Learned counsel has commenced upon the statement of PW-4 Sajid Chemma by arguing that the appellant did not make any extra-judicial confession before him and the statement made by him is inconsistent with the report of the Chemical Examiner. According to the learned counsel this is a big factor the benefit of which must be given to the appellant. Lastly, it has been argued that the prosecution has miserably failed to bring home the charge against the appellant under Sections 302 and 201 PPC. With reference to the motive, it has been argued that no evidence has been brought on the record by the prosecution that Muhammad Bilal was party to the motive, in this case or he was in league with co-appellant Shahab-ud-din in abducting the deceased Muhammad Fayyaz, therefore, his appeal may be accepted and he be acquitted.
6. We have heard the learned counsel for the parties and have gone through the evidence available on the file.
7. In this case the occurrence took place on 1.11.2002 at about 2-21/2 a.m. (night) and on the same night while appearing at Police Station Muhammad Ashfaq PW-1 made statement at about 3.50 a.m. in which he nominated both the appellant along with Muhammad Arif (since been acquitted).
Muhammad Ashfaq PW-1 gave detailed of the abduction of the deceased as he was appraised by Ijaz Ahmad PW-3 and Muhammad Arshad (not produced). We are mindful of the situation that FIR was not recorded with deliberations or consultations, therefore, promptness of the FIR has been established beyond any shadow of doubt and no doubt is left in our mind about the abduction of Muhammad Fayyaz abductee-cum-deceased. We are also of the view that none of the PWs examined by the prosecution has any ill-will, animosity or enmity against the appellants to become a false witness. Therefore, the prosecution has fully proved its case, so far as abduction of the deceased is concerned against Shahab-ud-Din and Muhammad Bilal appellants. Accordingly, their convictions and sentences as imposed by the learned trial Court are sustained by dismissing their appeals to the extent.
8. There is no evidence against Muhammad Bilal appellant on the record that either he participated in the commission of the murder of deceased Fayyaz or he was party to laying the dead body of the deceased in a pit along with his co-appellant Shahab-ud-din and also there is no evidence on the record that he either pointed out the place where the dead body was buried or dead body was recovered on his pointation, therefore, to the extent of his conviction under Sections 302 and 201 PPC, the same is set-aside and he is acquitted of the said charges. Criminal Appeal No, 177-J/2006 is partly allowed in the above terms.
9. Coming to the case of Shahab-ud-din appellant with regard to the murder of the deceased, we have deeply explored the file and gone through the entire material and have' failed to search any piece of evidence through which the prosecution has proved that at what time, place and by which manner the deceased Muhammad Fayyaz was murdered by Shahab-ud-din. Anyhow, there is only extra-judicial confession of appellant Shahab-ud-din made by him before the complainant Muhammad Ashfaq PW-1, Altaf Hussain .PW-2 before Mushtaq (not produced). It is not understandable that PWs including the complainant came in the house of the appellant where he made extra-judicial confession before them. However, the dead body was recovered from a pit allegedly made in front of the house of the appellant and the appellant pointed out the place where the dead body had been buried, although he did not lead to the recovery of the dead 'body.
Therefore, these circumstances make us persuaded that the charge has been proved for the murder of deceased Muhammad Fayyaz against Shahab-ud-din appellant, but it remains a mystery that at what place, at what time and by which manner the deceased was put in a pit and earth was put on the deed body, as there is no evidence on the file about the same.
9. The motive that the deceased had to take Rs, 50,000/- from the appellant appears to be fabricated, therefore, on two factors i,e, there being on direct evidence of commission of murder of the deceased and motive appearing to be fabricated, sentence of Shahab-ud-din appellant is commuted to life imprisonment. So far as convictions and sentences imposed upon him by the learned trial Court for the remaining offences i,e, 364 PPC, 2001 PPC, the same shall remain intact.
Criminal Appeal No, 173/2006 filed by Shahab-ud-din is dismissed with above modification in sentence. Both the appellants are given the benefit of Section 382-B, Cr.P.C. and sentences of each of the appellants shall run concurrently. Record of the trial Court be returned immediately and the case property, if any, be disposed of in accordance with law.
10.For the same reasons as detailed above, Criminal Revision Nos, 192/2006 and 193/2006 fail and are accordingly dismissed.
MURDER REFERENCE IS ANSWERED IN THE NEGATIVE. SENTENCE OF DEATH IS NOT CONFIRMED.