Nadeem Ahmad, aged 20, a College student, resident of Zafar Colony, Sargodha and Muhammad Arif were arrested for the murder of Karam Elahi. The former was tried for the murder whereas the latter turned approver and deposed against him. The trial Judge by his judgment dated 27th September, 1979 found Nadeem Ahmad guilty of murder and sentenced him to death plus fine of Rs. 5,000 to be paid to the heirs of the deceased or in default six months' R. I. The convict has filed appeal against the judgment of the trial Court. Reference for confirmation of death sentence is also before us. Both matters shall be decided by this judgment.
2. Mehr Elahi, brother of the deceased, lodged report Exh. P. J. At police Station City Sargodha.
According to the complainant murder had taken place on the night between 4th and 5th of March, 1978, in the shop of the deceased situated in New Civil Lines, Sargodha, at Fatima Jinnah Road.
Mehr Elahi's version was that he along with his family was residing in Block No. 14 Bagh Seeta Ram, Sargodha and had his Radio Mechanic shop in Bhaghtanwala Chauk, Sargodha. Two years ago, his deceased brother had rented a shop in New Civil Line, Sargodha, at Fatima Jinnah Road. He had radios and tape-recorders in the shop, and also used to do the repair work. He would have his meals in a hotel and would go to sleep at his shop. Occasionally, he used to visit the house. A night before, as usual, Karam Elahi was sleeping in his shop. Next morning, Mehr Elahi was informed that his brother was found dead in the shop. He along with Muhammad Rafiq son of Ali Muhammad came to the shop and saw the dead body of Karam Elahi lying there. There were some abrasions on the neck; froth had come out of the nose and mouth. He had an injury on the left side of his head as well. It had blood. On checking his shirt, Identity Card, wallet containing chain and a Citizen watch with red dial were found missing. According to the first informant, Karam Elahi had been killed by unknown person.
3. Dr. Capt: Umar Hayat Bucha, Medical Officer, District Headquarters Hospital, Sargodha performed post-mortem of the deceased on 5th March, 1978 at 1 p. m. He found one abrasion 2 x 2 c. m. On the left side of neck; two abrasions 1 x -- c. m. On right side of neck and lacerated wound -- x -- c. m.
On left parietal region 3 c. m. Above left ear, on probing it was deep to brain going inward and forward. One bullet was recovered inside the skull vault.
4. The prosecution tried to prove its case against the appellant with the help of judicial confession made before Muhammad Farooq Syed, City Magistrate, Sargodha; extra-judicial confession before Mehr Muhammad (P. W. 14) and Muhammad Sharif (P. W. 15) ; statement of Muhammad Arif approver (P. W. 23) and recoveries.
5. The appellant denied the charge of murder, pleaded not guilty and produced Jiwan Beg, F. C. No. 869 P. S. City Sargodha, in his defence.
6. Before discussing the contentions raised by the learned counsel for the appellant, we would like to discuss the evidence.
Judicial confession was made before Muhammad Farooq Syed, City Magistrate Sargodha, who deposed that the appellant when appeared before him ---appeared to be harassed". He was given a cup of tea by the Magistrate and then told why be had been brought before him. In cross- examination, the Magistrate stated that he did not ask the appellant if he had been tortured by the Police and how long he had been in police custody.
Mehr Muhammad (P. W. 14), shopkeeper, is the one before whom it is alleged that the appellant made extra-judicial confession. The time was 2 p. m. The witness was sitting in his baithak with Muhammad Sharif P. W. The appellant came there. He sat with them. He was wearing a chadar and was holding pistol in his hand. He appeared to be "embarrassed". He was asked why he was so. He said that he and his friend Arif had murdered his instructor Karam Elahi 8/9 months ago during night. The appellant further told him that the deceased was killed in his shop (Pak Radio Centre) at Fatima Jinnah Road, New Civil Lines, Sargodha. It was further admitted by the appellant that both of them had removed some money and articles from the shop and had fled away.
Muhammad Shard's evidence is to the same effect.
Muhammad Arif approver who appeared as a prosecution witness deposed that he was a student of 2nd year in Government College, Sargodha in 1978. The appellant was also a student of 1st year of the same College. Both became friends. Arif was living in the Hostel whereas the appellant lived in Zafar Colony Sargodha. When both became fast friends, the appellant suggested Arif to commit dacoities. They chose instructor Karam Elahi as their victim who was running radio and tape- recorder shop and had sufficient money. The witness then said that the appellant told him that the instructor used to sleep in the shop during night and that was the best time to commit crime. One night both went to deceased's shop. The plan was that the appellant would knock at the shop and as the deceased was familiar with the voice of the appellant he would open the shop and both of them would pounce upon him. Accordingly both went to the shop of the deceased but according to Arif some differences arose as to how the operation was to be carried out and they came back.
Both attended College for a few days. Thereafter, the appellant disappeared but Arif remained in the Hostel. On enquiry from the residence of the appellant, Arif was told that the appellant had gone to his relatives at Sialkot. In the month of March, letter Exh. P. 17 was received by the approver.
In that some portion was in code words while the remaining was in plain language. They had made diaries to consult the code words. It was on 4 March, 1978 that the appellant came to him, showed him pen-pistol which he had brought from Bara. The pistol had been purchased after he had sold the watch. The appellant told Arif that he was away from his house for 15 days. He further told that the deceased would open the shop on his call and would accommodate him for the night. Bothth took their evening meals in the Hostel. The appellant left Hostel and Arif joined him alt 10 p. m. They sat on a bench near Burma Shell and continued watching the shop of the deceased. At about 1 a. m. In the night, cinema show ended. Arif was told to wait for half an hour till the rush subsided. At 1- 30 a. m. The appellant went to the shop of the deceased leaving Arif behind. Arif was told that he should wait till 2 O'Clock and if he did not turn up, he should come to the shop. The clock sir two. The appellant did not come back, So, Arif ran to the shop. On reaching the shop, Arif noticed some dim light. He by-passed the shop and then returned; found the shutter of the shop slightly opened.
When he reached in front of the shop he heard a shot. He lifted the shutter and found the deceased injured. He was bleeding profusely and the appellant was throttling. The appellant was told to come out at once lest they were noticed by the Chaukidar. The appellant came out of the shop with a shirt, which was lying on the shade. Both of them pulled down the shutter and went to Railway Station. There the appellant wanted to search the shirt but Arif forbade him. At College's lawn), both searched the shirt and took out a sum of Rs. 1,000, an identity card P. 7, watch P. 12 and wallet P.
6. The appellant gave Arif Rs. 50 and watch and rest was kept by the appellant.
Pen-pistol P. 5, Identity Card of the deceased P. 7, and wallet P. 6 were taken into possession vide memo. Exh. P. Q. On 28th November, 1978 witnessed by Mehr Elahi, Muhammad Yousaf (P. W. 21) and Mahla Khan (P. W. 16).
7. Learned counsel appearing on behalf of the appellant contended that the evidence produced by the prosecution is of very weak type. He submitted that it was not trustworthy Learned counsel further submitted that the prosecution has failed to prove its case beyond reasonable doubt.
8. We have also heard the learned counsel for the complainant and the State.
9. The judicial confession which was recorded about nine months after the alleged occurrence was retracted by the appellant. Mehr Muhammad (P. W. 14) denied the suggestion when he Jas asked as to whether he had appeared as prosecution witness in other cases. But according to the evidence of Jiwan Beg F. C. No. 869 (D. W. 1) Mehr Muhammad appeared as prosecution witness in case F. I. R. No. 563 dated 6th October, 1972 under section 379/411, P. P. C. Titled "State v. Akhtar Hussain of P. S. City Sargodha". He again appeared on behalf of the prosecution in case F. I. R. No. 251 dated 26th April, 1973 under section 61/1/14 in re: State v. Faza Muhammad of P. S. Sargodha. He was also a witness for the prosecution in case F. I. R. No. 685/73 dated 26th December, 1973 titled Stare v. Abdul Ghafoor under section 6/1/61 of Police Station City, Sargodha.
Muhammad Sharif happened to be present when the appellant came to make confession. The appellant was not known to Muhammad Sharif P. W. Before. We, therefore, fail to understand why the appellant made confession in the presence of Muhammad Sharif P. W. Their evidence does not inspire confidence, especially, when Mehr Muhammad was at the back and call of the Police whenever his services were required. Even the extra-judicial confession was recorded after about nine months.
This leaves us to examine the approver's testimony and the recoveries. The evidence of approver is not worth relying because in the post-mortem report of the deceased the doctor found two abrasions on the neck but there is no reference of these in the approver's evidence. He simply said that the appellant was throttling. The injury on the neck could not be caused in the manner in which the approver deposed, No sanctity could be attached to the recoveries because those were made after a lapse of more than eight month, from the date of occurrence. Even otherwise these recoveries do not connect the appellant with the commission of the crime.
After considering the entire evidence, we are of the view that it is not possible to maintain the conviction of the appellant on this evidence.
The prosecution has not been able to prove its case therefore, decline to confirm the death sentence and allow the appeal.
The appellant shall be set free forthwith if not required in any other case.
The appeal and reference are disposed of accordingly.