Ijaz Ahmad Chaudhary.--Waheed Anwar appellant was convicted for an offence under Section 302(b), PPC as Tazir vide judgment dated 18.02.2005 handed down by the learned Additionl Session Judge, Mailsi, District Vehari and was sentenced to death and to pay a sum of Rs, 1,00,000/- to the heirs of Irshad Qamar deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. Waheed Anwar appellant was also convicted for an offence under Section 364, PPC and was sentenced to rigorous imprisonment for life with fine of Rs, 1,00,000/- or in default of payment of fine to further undergo simple imprisonment for six months. The appellant was further convicted for an offence under Section 201, PPC and was sentenced to rigorous imprisonment for seven years with fine of Rs, 50,000/- or in default of payment of fine to further undergo simple imprisonment for six months. Through the same judgment Ghulam Yaseen appellant was also convicted for an offence under Section 302(b), PPC read with Section 34, PPC and was sentenced to rigorous imprisonment for life and to pay a sum of Rs, 1,00,000/- to the heirs of Irshad Qamar deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months.
Ghulam Yaseen appellant was also convicted for an offence under Section 364, PPC read with Section 34, PPC and was sentenced to rigorous. imprisonment for life with fine of Rs, 1,00,000/- or in default of payment of fine to further undergo simple imprisonment for six months. The appellant was further convicted for an offence under Section 201, PPC read with Section 34, PPC and was sentenced to rigorous imprisonment for seven years with fine of Rs, 50,000/- or in default of payment of fine to further undergo simple imprisonment for six months. The sentences awarded to both the above said appellants were ordered to run concurrently and benefit of Section 382-B.
Cr.P.C. was extended to both the appellants. Through the same judgment the learned trial Court has acquitted Dilawar alias Dilla appellant while extending him the benefit of doubt. Waheed Anwar and Ghulam Yaseen appellants have challenged their convictions and sentences before this Court through Criminal Appeals No, 115 of 2005 and 190 of 2005 respectively while Nisar Ahmad complainant has filed Criminal Appeal No, 158 of 2005 against acquittal of Dilawar alias Dilla accused and Criminal Revision No, '101 of 2005 against Ghulam Yaseen appellant for enhancement of his sentences. All the above mentioned matters have been heard by us alongwith Murder Reference No, 210 of 2005 seeking confirmation of the sentence of death passed by the learned trial Court against Waheed Anwar convict-appellant. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution's story set forth in the FIR is that the complainant was a retired Hawaldar from Pak Army and was resident of Mauza Ahmadpur and after retirement he adopted profession of cultivation. Between the night of 18/19.08.2004 at about 09.10 p.m. he was sitting in an open place outside of his house alongwith his son Irshad Qamar, aged 18 years, Muhammad Afzal, his brother and one Zulfiqar resident of the locality when the accused persons namely Muhammad Yaseen, Bashir Ahmad, Dilawar alias Dilla and Waheed Anwar came there. They took son of the complainant with them by asking that they had to go to Mouza Gehnori Baloach at the house of Bashir Ahmad Baloach. The complainant had waited for his son till night but he had not returned home. On the next morning above said Irshad Qamar was searched for and the families of above said four accused were also inquired who remained reluctant and did not furnish any reasonable reply. The complainant had expressed a strong suspicion that the above said four accused had abducted his son and they had kept him at any unknown place so as to commit his murder. The complainant himself kept on searing for his son but could not find any clue. On the basis of the statement made by the complainant in respect of that incident FIR No, 198 was registered at Police Station Karampur, District Vehari at 09.55 p.m. on 22.08.2004 for offences under Sections 364/302/ 201/34, PPC.
3. After registration of the FIR the case in hand Was investigated by Muhammad Siddique, SI (PW- 8) who arrested the appellants Waheed Anwar and Ghulam Yaseen on 19.09.2004 and recovered empty (P-I) from the place of occurrence. He also recovered pistols .30 bore at the pointing out of both the accused Waheed Anwar and Ghulam Yaseen. He also recovered hatchet at the pointing out of Dilawar alias Dilla appellant. He recorded the statements of the witnesses under Section 161, Cr.P.C. and after completing the necessary formalities regarding the investigation of this the case was finalized and a Challan was prepared by him on 15.10.2004 and was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge on 11.01.2005 against the appellants in respect of offences under sections 364/302/201/34, PPC to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced eight witnesses in support of its case against the appellants. Nisar Ahmad complainant (PW-1) furnished the last-seen evidence of the incident in question and he also deposed about the motive in his supplementary statement. Zaheer Ahmad (PW-3) stated about extrajudicial confession made by Waheed Anwar and Ghulam Yasin appellants during the investigation of this case. Muhammad Siddique, SI (PW-8) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under Section 342, Cr.P.C. the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
They, however, opted not to make a statement on oath under Section 340(2), Cr.P.C. and did not produce any witness in their defence.
7. Upon conclusion of the trial the learned trial Court found the prosecution's case against Waheed Anwar and Ghulam Yaseen appellants to have been proved beyond reasonable doubt and thus, it convicted and sentenced them as mentioned and detailed above. Hence, the present appeals, criminal revision and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the witnesses produced by the prosecution were related and interesting witnesses whose explanation for connecting the appellants with the commission of offences 'were utterly unacceptable. He has also argued that the motive set up by the prosecution had remained far from being established, the alleged recovery of an empty, pistols .30 bore and hatchet from the appellants' possession during the investigation was nothing but sham; and the evidence regarding extra-judicial had squarely contradicted the prosecution' story built up against the appellants in this case. It has, thus, been canvassed by them that the prosecution had miserably failed to prove its case against the appellants beyond reasonable doubt entitling them to be acquitted by this Court. As against that the learned Additional Prosecutor-General appearing for the State and the learned counsel for the complainant have submitted in unison that the witnesses had no motive to falsely implicate the appellants in a case of this nature; the recovery of crime-empty, pistols .30 bore and hatchet from the appellants' possession had provided sufficient corroboration to the ocular account; the evidence regarding extra-judicial confession had afforded ample support to the statements made by the complainant while appearing before the' learned trial Court as PW-1; and, thus, the prosecution had succeeded in establishing the appellants, guilt to the hilt. They have gone on to maintain that the convictions and sentences of the appellants recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by us that the incident in the present case according to the prosecution's case had taken place between the night of 18/19.08.2004 at 09.10 p.m. when the appellants alongwith their co-accused namely Bashir Ahmad (since Proclaimed- Offender) and Dilawar alias Dilla (acquitted co-accused) had come to the house of the complainant and taken away the deceased Irshad Qamar with them and since then the deceased could not find and still missing. On 22.08.2004 after 4/5 days he has got recorded his statement before the police and on the basis of which the formal FIR had been recorded at Police Station Karampur, District Vehari. Nisar Ahmad complainant while appearing as PW-1 during his cross- examination had admitted enmity with Ghulam Yaseen as about seven years before the complainant had made an application against the appellant Ghulam Yaseen that he had committed a theft in the shop of his son Muhammad Ishaque who had established a business of pesticides but in spite of enmity he had not opted to examine his son or any .other persons to prove his stance. The complainant (PW-1) also admitted during his cross-examination that the deceased Irshad Qamer his son was aged about eighteen years while the accused persons were aged about 30 to 35 years. It is admitted at all hands that the deceased was neither remained class-fellow of the appellants nor he was belonged to the same cost. It was also admitted that the deceased and the appellants were engaged in different professions. We are failed To understand that why the complainant allowed the appellants to take his son in night of the incident who was a young led of 18 years old and a that time he did not raise any objection. The complainant had also failed to bring on record any object by the appellants to take his son with them. We have also been informed by the learned counsel for the appellants that the deadbody of the deceased had not recovered in this case and that is why the medical evidence is not available in this case and in absence of medical evidence the attribution of fire-arm injury to the deceased had not receded corroboration which factor also falsify the evidence gathered in this case. All the above said circumstances shows that the last seen evidence carved in this case is not worthy enough to throw reliance upon it.
10.To provide corroboration to the version of the complainant (PW 1) the prosecution had also examined Zaheer Ahmad (PW-3) who had stated about extra-judicial confession made by the Waheed Anwar and Ghulam Yasin appellants before him. The complainant while appearing as PW-1 had admitted that Zaheer Ahmad (PW-3) was his close relative. Even said Zaheer Ahmad (PW-3) had also claimed that he is resident of the same village and his house was situated about 500 feet from the house of the complainant. During his cross-examination the complainant had admitted that Zaheer Ahmad and Mukhtar PWs never met him from 19.09.2004 to 21.09.2004. We found that it is against the human nature that an important incident had taken place that Waheed Anwar and Ghulam Yasin appellants had come to the house of Zaheer Ahmad (PW-3) and had made extra-judicial confession but neither Zaheer Ahmad (PW-3) has sent a message to the complainant regarding supplying of any information about the incident in question nor he had made any effort to even inform him about the extra judicial confession allegedly made by the above said appellants. We also fail to understand that why Zaheer Ahmad (PW-3) chose to affect the arrest of above said appellants of his own without associating with him the complainant who had been actively pursuing the case. Even otherwise the Investigating Officer had made a contradictory statement regarding the arrest of the appellants to that of Zaheer Ahmad (PW-3).
During his cross-examination the Investigating Officer (PW-8) had admitted that he had not associated any respectable like, Lumberdar or Chowkidar in this case. Even otherwise Zaheer Ahmad (PW-3) was not a man of means so as to get the appellants pardoned from the complainant party. He had also admitted during his cross-examination that he had no influence over the police. He never remained any councilor or elected representative of the locality. In such circumstances we failed to understand that why Waheed Anwar and Ghulam Yasin appellants selected Zaheer Ahmad (PW-3) to make an extra judicial confession when he was not in a position to get them pardoned from the complainant party or any of his other relative.
11.The motive set up in this case by the complainant through his supplementary statement is that the deceased had illicit liaison with the sister of Waheed Anwar appellant namely Mst. Nayab Kausar. We have observed in this context that the complainant remained fail to introduce this motive in his statement made before the police under Section 154, Cr.P.C. and also remained unable to disclose any source through which he came to know about such illicit relations between his deceased son and Mst. Nayab Kausar sister of Waheed Anwar appellant. Even the learned trial Court has also disbelieved the motive part of this case.
12.The next piece of evidence in this case is recovery of a crime-empty at the place of occurrence and pistols .30 bore allegedly recovered at the pointing out of Waheed Anwar and Ghulam Yasin appellants. It was also stated that the blood-stained earth was also taken from the spot after one month. While perusing the statements of recovery witnesses and the report of Forensic Science Laboratory it reveals that the empty and pistols were jointly sent to the Forensic Science Laboratory thus, the recovery affected in this case is legally inconsequential. We are also not inclined to accept that the blood-stained earth had been obtained from the place of occurrence after one month and according to the statements of witnesses that was an open place. Even the hatchet allegedly recovered from Dilawar alias Dilla appellant was not stained with blood, hence that recovery was also inconsequential. According to the statement of the complainant (PW-1) he had engaged some divers to trace out the deadbody of the deceased from the canal even before registration of the case but neither the divers nor police who had been searching for the deadbody from the bank of canal could trace the deadbody or the place of occurrence so as to take empty and bloodstained earth there from. The learned trial Court has rightly disbelieved the recoveries in this case and we also could not find anything to reverse the findings of the learned trial Court in this regard.
13. For what has been discussed above a conclusion is irresistible and inescapable that the prosecution had failed to prove its case against Waheed Anwar and Ghulam Yaseen appellants beyond reasonable doubt. Criminal Appeals No, 115 of 2005 and 190 of 2005 are, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and they are acquitted of the charge by extending the benefit of doubt to them. It has been informed to us that Ghulam Yasin appellant had been released on bail after suspending his sentences vide order dated 31.01.2007. His bail bonds and surety shall stand discharged. However, Waheed Anwar appellant shall be released from the jail forthwith if not required to be detained in connection with any other case.
14.Murder Reference. No, 210 of 2005 is answered in the negative and the sentence of death passed by the learned, trial Court against Waheed Anwar convict-appellant is not confirmed.
15.For the same reasons we do not find any merit in Criminal Appeal No, 158 of 2005 against acquittal of Dilawar alias Dilla as the same has been' passed on correct appreciation of evidence.
Even otherwise no illegality, irregularity or misreading has been pointed out. Hence, the same is dismissed.
16.Similarly by acc stance' of appeal filed by Ghulam Yasin Criminal Revision No, 101 of 2005 filed for enhancement of his sentence is also dismissed.