Altaf Ibrahim Qureshi, J.--Through this single judgment, we intend to dispose of this appeal as well as Criminal Appeal No, 303J/2008 and Murder Reference No, 08/2009 having been arisen from one and the same FIR viz. Abdul Majeed, the appellant, who has been indicted alongwith Abdul Rasheed, Bakht Ali and Abdul Latif, in case F.I.R. No, 277, dated 08.11.2006, registered at Police Station Derawar, District Bahawalpur in respect of the offences under Sections 302/34, P.P.C. The appellant-Abdul Majeed was convicted under Section 302(b), P.P.C. and was sentenced to death in addition to pay Rs, 50,000/- as compensation u/S. 544-A, Cr.P.C. to the legal heirs of deceased or in default of payment thereof he was to undergo further six months, simple imprisonment. He was further convicted under Section 364, P.P.C. for abducting Noor Din deceased and sentenced to life imprisonment with fine of Rs,50,000/-, in default whereof to undergo SI for two years. His both sentences were ordered to run concurrently. So far as rest of the accused namely Abdul Rasheed and Bakht Ali, they were acquitted of the Charge on benefit of doubt whereas the accused namely Abdul Latif was absconder. This is vide judgment dated 29.11.2008 passed by the learned Additional Sessions Judge, Bahawalpur. The appellant has filed the appeal (Cr. A. No, 287/2008) against the said conviction and sentences through his counsel. He has also filed Criminal Appeal No, 303/2008 through Jail. In addition thereto, the learned trial Court has sent a Murder Reference Bearing No, 08/2009 in terms of Section 374, Cr.P.C. for confirmation of the death sentence awarded to the appellant or otherwise.
2. The facts of the case, as spelt out in the FIR (Exh.PC/1) are that Noor Din, complainant's son, was serving Abdul Majeed accused for the last one year as shepherd, who did not go to the job due to illness for the last many days. On 7.11.2006 at 6/7 a.m., Abdul Majeed and Abdul Latif came on a camel to the house of the complainant situated at Chak 123/DRB and took away Noor Din in the presence of Eidal and Mehar Din towards their residence at Chak No, 4/DRB. At about 9/10 a.m., Manzoor Ahmad and Allah Bachaya came to the complainant and disclosed that they were coming from Rohi and on the way, within the limits of Chak No, 4/DRB, they heard hue and cry and attracted at the scene and saw Abdul Majeed, Abdul Latif, Abdul Rasheed and Kala giving beatings to Noor Din; they tried to rescue Noor Din but all the four accused frightened them to stay away or they would meet the same fate; thereafter Noor Din fell down and they ran away from that place to approach the complainant, who along with Mehar Din, Khair Din and Jam Bashir Ahmad ran towards the spot and saw that all the four accused were hiding the dead body of Noor Din in the bushes. On seeing them, Abdul Majeed raised a lalkara that he had taken revenge from Noor Din for having illicit relations with his sister Mst. Maqsoodan. The complainant left his sons Mehr Din & Khair Din with the dead body and himself went to the Police Station.
3. At the inception of the trial, on denial of the charge by the accused, the prosecution examined as many as nine witnesses in support of the charge.
4. Dr. Nazir Ahmad PW-1 conducted the post-mortem examination of the deceased on 08.11.2006 at 3.00 p.m. PW-1 found the following injuries on the person of Noor Din deceased:-- "1. Multiple black colour bruises all over the front and back of neck different in size.
2. Multiple bruises black colour on the left side of front and back of the chest different in size,
3. Multiple black colour bruises on the right shoulder different size.
4. Multiple black colour bruises on the left shoulder different in size.
5. Multiple black colour bruises on the abdomen different in size.
6. Multiple black colour bruises all over the lumbo-secral region different in size.
7. Multiple black colour bruises on both buttock different in size.
8 & 9. Multiple black bruises on the posterior aspect of both thighs different in size.
10. Swelling on the left perito occipital region of the head."
In opinion of the Doctor, these injuries were ante-mortem in nature and caused by blunt weapon and the same were sufficient to cause death in ordinary course of nature. The probable time given by him between injuries and death was within 30 minutes to 6,0 minutes and between death and post-mortem examination within 24 hours. Exh.PA is the post-mortem report and Exh.PA/2 the injury statement.
5. Sher Muhammad, complainant appeared as PW-4 and supported the occurrence and motive as given in the FIR, Mehar Din, another eye-witness of the occurrence while appearing as PW-5 corroborated the complainant. Manzoor Ahmad PW-7 gave eye account of the occurrence corroborating the FIR. PW-2 Muhammad Yasin, Patwari, prepared scaled site-plan Exh.PB and Exh.PB/1. PW-3 Amjad Ali, escorted the dead body to R,HC Khutri Bungalow for autopsy, who after post-mortem examination, handed over the last worn clothes and articles of the deceased to the Investigating Officer. PW-6 Shabbir Hussain is the recovery witness in whose presence Soti P-9 was got recovered on the disclosure made by the present appellant-Abdul Majeed, which was taken into possession vide recovery memo Exh.PG. On the pointation of Abdul Latif accused, soti P-10 was also recovered in his presence, which vide recovery memo Exh.PH was taken into possession by police. PW-8 Irshad Ahmad, Inspector, recorded the statements of Abdul Rasheed and Bakht Ali.
6. Rana Muhammad Shafique, Inspector/I.O. PW-9 conducted the investigation in this case after giving brief account of the investigation. He stated that he arrested Abdul Majeed & Abdul Latif accused on 22.11.2006; Abdul Latif made disclosure in presence of the P.Ws. on 26.11.2006 and led to the recovery of camel from his house which was taken into possession vide memo Exh.DB.
According to him, on the same day, the said accused made further disclosure and on his pointation, Soti-P-10 was recovered which was taken into possession vide memo Exh.PG. He, however, submitted incomplete challan to the extent of accused Abdul Majeed and Abdul Latif.
7. Allah Bachaya PW was given up as being won over and PWs Rahim Bakhsh and Eidal as unnecessary.
8. On conclusion of evidence of prosecution, statements of the accused were recorded under Section 342, Cr.P.C. To the question as to why this case against him and why the P.Ws. made statements against him, Abdul Majeed appellant replied:-- "It is totally false case, The PWs have not been able to give any coherent statements. All the PWs are mutually destructive. The prosecution even could not prove the time or place or day of death of deceased,. The PWs even do not know about their houses or even where they were present at relevant time. The I.O. conducted most dishonest investigation. The investigating officer admitted that he did not prepare even a single document himself. The investigating officer even did not prove whether he ever visited the place of occurrence. The whole case is false. It is replete with inaccuracy and false allegations. We all are innocent. We pray for acquittal. It is totally false case."
The appellant, however, did not opt to appear as his own witnesses under Section 340(2) Cr.P.C.
9. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions learned trial Court proceeded to convict and sentence the appellant and acquit the remaining two accused, as mentioned in the opening paragraph of this judgment.
10.Learned counsel for the appellant in support of this appeal contends that admittedly there is a delay of more than 24 hours in the registration of the FIR without any satisfactory explanation.
Further contends that the story of the prosecution, as mentioned in the FIR, is highly improbable, and, admittedly, the complainant is not the witness of the actual occurrence, as the same was told to him by Manzoor Ahmad and Allah Bachaya; that said Allah Bachaya has not been produced in the witness-box. As far as the evidence of Manzoor Ahmad is concerned, it does not inspire confidence for the simple reason that he did not take any step when the deceased was given beatings with the sticks by the appellant and his co-accused and he along with Allah Bacha.ya could save the deceased, who was their Khalazad, but they did not intervene to save his life and instead they informed the complainant about the occurrence and thereafter they died not accompany the complainant to the place of occurrence. Further contends that the place of occurrence is at a distance of about 24 kilometers from the house of the complainant and admittedly the complainant reached there at 11:00 a.m. and story of the complainant that the appellant and his co-accused were trying to conceal the dead-body in bushes is not understandable. It is the case of Manzoor Ahmad PW-7 that he along with Allah Bachaya saw the accused persons causing injuries to deceased Noor Din at about 9/10 a.m. As far as the recovery of stick is concerned. It is an ordinary stick which is not stained with blood; therefore, the recovery is of no value. Further contends that no witness regarding motive has been produced to prove the alleged illicit relations of the deceased Noor Din with sister of the appellant namely Mst.
Maqsoodan Mai. Further contends that in this case apart from the appellant, four other persons were also implicated out of whom three accused namely Abdul Rasheed, Abdul Latif and Bakht Ali alias Kala were accused of causing injuries to the deceased whereas Ameer Din was accused of abetment. It is contended that out of these five persons, although Ameer Din did not face the trial as he along with Bakht Ali alias Kala and Abdul Rasheed were placed in Column No, 2 of the challan but Abdul Rasheed and Bakht Ali alias Kala were tried along with the appellant but have been acquitted by the learned trial Court and no appeal against their acquittal has been filed despite the fact that their role in the actual occurrence is of similar to that of the appellant, therefore, the same evidence which has been disbelieved to the extent of acquitted co-accused cannot be believed so far as the appellant is concerned unless and until it is corroborated by any independent piece of evidence which is very much lacking in this case, especially when the recovery is inconsequential, as PW-4 in his evidence admitted that the.soties were present around the dead body. Further contends that the provisions of Section 364, P.P.C. are not attracted as it was not the case of the complainant either in the FIR or before the learned trial Court that the deceased was forcibly taken from his house.
11.On the other hand, learned counsel for the complainant assisted by the learned Deputy Prosecutor General contends that there is no conscious delay in reporting the matter to the police and if the place of occurrence and social status of the complainant is taken into consideration, the delay in reporting the matter to police becomes immaterial; that the occurrence took place in the desert (Cholistan) and no means of transportation are available in that part of the area; that the natural eye-witness account has been produced by the prosecution as PW-7 has no enmity with the appellant for his false implication and the appellant's case is distinguishable from the rest of his co-accused as he along with Abdul Latif took the deceased from the house of the complainant which was not only witnessed by the complainant but also by other witnesses namely Mehr Ali and Eidal; that motive is also attributed to the appellant which has sufficiently been proved through statements of PW-4 & PW-5.
12.We have heard the arguments of both the sides.
13.In this case, the occurrence took place, as per prosecution, on 07.11.2006 and the complainant was informed about the incident at about 9/10 a.m. It is his own case that he reached at the place of occurrence along with the eye witnesses at 11:00 a.m. but even then the matter, as per record, was reported to the police at 1:00 p.m. on the day, therefore, there is an unexplained delay of more than 24 hours in reporting the matter to the police. It is the case of the complainant that his deceased son was working as Shepherd with the appellant and he had come to his home because he was not feeling well and thereafter the appellant along with his co-accused came to the house of the complainant and took the deceased along with him. There is no allegation that he was taken forcibly or deceitfully. Therefore, in the circumstances, the provisions of Section 364, Cr.P.C. are not attracted. The occurrence took place within the limits of Chak No, 4/DRB and that place is at a distance of about 24 kilometer from the residence of the complainant so, the story of the complainant that when he reached the place of occurrence the appellant and his co-accused were concealing the dead-body, does not appeal to common sense.
14. As far as the actual occurrence i,e, death of Noor Din is concerned, the complainant is not the eye-witness. He claimed that he was informed by Manzoor and Allah Bachaya. Allah Bachaya did not appear and the statement of Manzoor Ahmad PW-7 cannot be relied upon because of the, following reasons:-- (a)Admittedly he is not resident of the area where the occurrence took place, therefore, he is a chance witness; (b)His testimony is highly improbable as he is Khalazad of Noor Din deceased and the same relation was of Allah Bachaya, who did not appear. They both did not intervene when the deceased was given beatings with sticks and they opted to inform the complainant. This being so, their presence at the spot has become doubtful, and (c)It is his case that, he informed the complainant at about 11 p.m. but thereafter admittedly he did not accompany him to the place of occurrence.
15. As far as the recovery of stick (P-9), which was taken into possession vide recovery memo Exh.PG, is concerned, we have noted that the complainant PW-4 has admitted that sticks were available at the spot when he went there. In absence of the description of the stick that too not stained with blood, an inference can be drawn that this being an ordinary stick which could easily be procured from any place or the market, therefore the recovery of stick is of no avail to prosecution.
16.As the motive is concerned, there is no evidence available on the record, as no witness has been examined by the prosecution to prove the same and the complainant has stated that he never saw Mst. Maqsoodan nor ever heard about the said lady, hence, the motive is disbelieved.
17.In this case, apart from the appellant, four other persons namely Abdul Rasheed, Bakht Ali, Abdul Latif and Ameer Din were implicated. Out of these, Ameer Din was arrayed as an accused of abetment, who was not even tried and let-off by the police. Abdul Latif, is absconder and the remaining two accused namely Abdul Rasheed and Bakht Ali were tried and acquitted. The allegation against them was also of causing injuries to the deceased Noor Din and no appeal against their acquittal has been filed. The evidence to the extent of acquitted accused has been disbelieved and the same cannot be believed qua appellant unless and until the same is corroborated by an independent piece of evidence, as held by the Honourable Supreme Court in Iftikhar Hussain and another vs. State (PLJ 2004 Supreme Court 552). We have been unable to find out any corroboration from the evidence on record to the extent of the present appellant.
18.It is the cardinal principle in the criminal administration of justice that the prosecution must prove its case beyond any shadow of doubt and if a slightest doubt is created, its benefit is to be given to the accused-appellant not as a matter of grace but as a matter of right.
19.Because of the above reasons, this appeal is allowed giving the benefit of doubt, the conviction and sentence of the appellant awarded vide judgment dated, 29.11.2008 is set-aside; the appellant is acquitted of the Charge and is ordered to be released forthwith if not required in any other case.
Criminal Appeal No, 303-J/2008 has become redundant and is disposed of accordingly. Murder Reference No, 08/2009 is answered in the negative, and the sentence of death awarded to Abdul Majeed (convict) is not confirmed.