Muhammad Qasim Khan, J.--Abdul Hameed and Zahid Abbas accused/ appellant faced trial before the learned Additional Sessions Judge, Burewala, in case FIR No, 138 dated 11.04.2008 under Section 302, 201/34, P.P.C. Police Station Saddar Burewala and on conclusion of the trial vide judgment dated 27.02.2009 the learned trial convicted both the accused under Section 302(b), P.P.C. And sentenced Zahid Abbas accused to suffer rigorous imprisonment for fourteen years and pay compensation, of Rs, 50,000/-; Abdul Hameed accused/ appellant was however, sentenced to ten years rigorous imprisonment with a compensation of Rs, 30,000/-. It was further ordered that in case of recovery of compensation, it shall be distributed amongst legal heirs of the deceased according to their legal shares; otherwise, the accused would undergo simple imprisonment for five months and three months, respectively. To assail their above conviction and sentence, the accused/ appellants filed Criminal Appeal No, 281/2009. On 10.12.2009 when Criminal Miscellaneous No, 1 of 2009 (application for suspension of sentence) came up for hearing before this Court, a notice for enhancement was issued to the accused/convicts to the effect that "as to why their sentence be not enhanced if after hearing both the sides it is proved that the offence u/S. 302(v), P.P.C. Is made out." On issuance of notice for enhancement, a separate file (Criminal Revision No, 443/2009) was prepared and is now being taken up for decision through this judgment along with the main appeal against conviction.
2. Briefly the facts of the case as disclosed by Muhammad Sadiq complainant/PW-1 are that he is a farmer. On 10.04.2008 his son Muhammad Ehsan aged 18/19-years used to work at home till 11.00 a.m; then went out of house and did not return till evening, whereupon, the complainant along with Muhammad Abbas and Muhammad Sabir proceeded for his search but he could not be found.
While on search, on 11.04.2008 at 4.00 (evening) when they reached Chiragah Sarkar, they saw a hand coming out of rubbish heap. When they removed rubbish heap, the dead body of Muhammad Ehsan was recovered. On leaving the dead body under the guard of Muhammad Abbas, the complainant was proceeding towards Police Station when he met the police and reported the matter to Ali Sher Sub-Inspector (PW-14), who reduced the same into writing and sent it to Police Station, where formal FIR Ex.PA was chalked out.
3. On reaching the place of occurrence; Ali Sher Sub-Inspector PW-14, prepared inquest report Ex.PB, prepared unsealed site-plan Ex.PH, sent the dead body to mortuary THQ Hospital Burewala under the escort of AbduL Jabbar 310/C and he himself interrogated the public. The Sub-Inspector then searched for the accused. On the same day, he obtained report of autopsy along with last worn clothes of the deceased vide memo. Ex.PF. On 12.04.2008, Muhammad Salman PW-6 and Sami Ullah PW-7 appeared before him and got recorded their statements regarding extra judicial confession by the accused Abdul Hameed. On 13.04.2008, the Investigating Officer got prepared scaled site-plan and recorded the statement of Revenue Patwari. On 23.04.2008, he arrested Abdul Hameed and Zahid Abbas accused from bus stop of Chak No, 473/E.B. On the next day, he obtained physical remand of the accused. Zahid Abbas accused/appellant while in police custody on 28.04.2008 led to the recovery of Chaddar (Palli) P-1, rope P-2 and Kassi P-3, which were taken into possession vide memo. Ex.PB, witnessed by Muhammad Sadiq and Muhammad Sarwar PW-2. The Investigating Officer prepared the site-plan of the place of recovery Ex.PJ and on 29.04.2008 the accused were sent to judicial lockup. On conclusion of the investigation, report under Section 173, Cr.P.C. Was sent to Court.
4. On receipt of report under Section 173, Cr.P.C. Accused/appellants were charge sheeted, to which they pleaded not guilty and claimed to be tried. The prosecution in order to establish its case produced as many as fourteen witnesses, which include Ali Sher Sub-Inspector PW-14, whose statement has been given in detail in the preceding Paragraph. Muhammad Sadiq complainant PW-1 while appearing in the witness-box reiterated the contents of the FIR, however, added that at the time of recovery of dead body, he was not aware about the accused, but on the same day he was told by the people that accused Abdul Hameed and Zahid Abbas were the real culprits. He also deposed about witnessing certain recoveries on the pointation of the accused. Muhammad Sarwar PW-2 and Khadim Hussain PW-3 made statements of having lastly seen the deceased in the company of accused/appellants. Muhammad Abbas PW-4 toed the line of the complainant, whereas, Muhammad Salman PW-7 and Sami Ullah PW-7 made statements with regard to alleged extra judicial confession by Abdul Hameed accused/appellant. Muhammad Akram PW-8, Muhammad Ashiq PW-9, Abdul Jabbar PW-10, Iftikhar Ahniad PW-12 and Abdul Majeed PW-13 are formal witnesses who made statements about respective roles performed by them during investigation.
5. PW-11 Dr. Muhammad Yaqoob, had conducted post-mortem of Ihsan deceased on 11.04.2008 and observed the following injuries:--
1. Ligature mark, was present in front and upper part of the neck. On dissection muscle of the neck contused. Right conu of hyoid bone found, fractured.
2. Contusion 7 cm x 5 cm on front of middle of the left thigh.
' According to the doctor, probable time that elapsed between injury and death was within a few minutes and between death and post-mortem was 24 to 36 hours. On close of oral evidence, the prosecution produced report of Chemical Ex.PK and closed its case.
6. When examined under Section 342, Cr.P.C., in answer to question "why this case registered against you and why the PWs have deposed against you?, Abdul Hameed stated that: "I am innocent. I am a poor labourer due to suspicion at the instance of my opponent, I have been roped in this case and from the "Qul" ceremony the police arrested me and my son and got me challan falsely with the connivance of police."
' Similar reply had been made by Zahid Abbas accused/appellant. They accused persons however, neither appeared in the witness-box within the meaning of Section 340(2), Cr.P.C. Nor produced any evidence in defence and on conclusion of the trial, above conviction and sentence was recorded.
7. We have heard the arguments of learned counsel for the parties at considerable length and perused the entire available record with their assistance.
8. On the face of it, this is a case of an unseen occurrence and the entire prosecution case hinges upon:--
(i) The evidence of last seen furnished through the statements of Muhammad Sarwar PW-2 and Khadim Hussain PW-3;
(ii) The evidence of extra judicial confession coming through the statements of Muhammad Salman PW-6 and Sami Ullah PW-7;
(iii) The medical evidence coming through the statement of Dr. Muhammad Yaqoob Kamal PW-11 and post-mortem report Ex.PG;
(iv) The evidence of recovery of certain articles, allegedly used in the commission of the offence, on the pointation and disclosure of convict/appellant; and
(v) The motive.
9. In order to establish its case, the prosecution mainly depended on the evidence of last furnished by Muhammad Sarwar PW2 and Khadim Hussain PW-3. Both the witnesses stated that on 11.04.2008, they had seen the deceased in the company of the accused/appellant, but after seeing them and putting an inquiry they went to Mian Channu to have a reaper. On the next date when they came back, they were informed that Ehsan deceased was buried in a rubbish heap and his dead was recovered from there. These witnesses improved their statements while appearing before the learned trial Court and they were duly confronted by the defence with respect to these improvements, especially with regard to their query from Ihsan to fodder the cattle and motive part introduced by these prosecution witnesses. These improvements appear to be dishonest attempt to strengthen the prosecution case. Moreover, it is not in the evidence of these prosecution witnesses that they saw the deceased along with appellant while entering into their house and especially when there are number of streets falling between the houses of these witnesses and the appellants, then why any one else from vicinity could not see the deceased in the company of the convict/appellant at that time. It is proved during trial that statements of these witnesses were recorded after sixteen to seventeen days of the occurrence, but as per statements of these prosecution witnesses when they returned to home from Mian Channu next day people had gathered at the place from where dead body was recovered, dead body was lying on the cot and police officials were also present. This being the position coming from the mouth of the prosecution witnesses themselves that they had come back home at the crucial time when dead body was recovered, it was placed, on a cot and more so when the police was also available at the place of recovery of the dead body, then why there statements were not recorded at that very moment and why they did not disclose the factum of last seen either to the complainant or to the police, whereas, to prove the element of last seen, the prosecution was under onus to link the evidence of last seen with the place where deceased was murdered, whereas, necessary chain is badly missing in the case. This fact creates doubts about the prosecution story qua the evidence of last seen. When whole of the prosecution evidence is juxtaposed and examined, a man of common prudence is not ready to believe it.
10. Moreover, the arrest of the accused/appellants in this case is an important event to be considered as it correlates with the evidence of last seen as well as extra judicial confession. PW-1 Muhammad Sadiq complainant who is father of Ehsan deceased stated that QUL KHAWANI was held on the next date of registration of FIR and from that venue the police arrested both the accused persons. He made another admission during cross-examination that police registered the case after consultation. On the point of arrest of the accused, other PWs toed the line of the complainant. All these facts are when taken together, it becomes quite obvious that FIR was registered on 11.04.2008, .QUL KHAWANI, according to the complainant, was held on the next day i,e, 12.04.2008 and on the same day accused were arrested by the police. Against all that, Ali Sher Sub- Inspector/ complainant PW-14 who had investigated the case, submitted that he arrested Abdul Hameed on 23.04.2008 when he was informed about their presence at bus stop of Chak No, 473/E.B, on the same day he secured their physical remand. If the statement of the complainant and his other witnesses are believed on the aspect that arrest of the accused/appellants was made on 12.04.2008, then what was the reason to keep them in illegal confinement for quite a long time, especially when the evidence of last seen and extra judicial confession was available with the prosecution. It therefore, appears that arrest was made under some suspicion, the accused/ appellants were kept under illegal confinement for a long time and later on by fabricating false pieces of evidence of last seen, extra judicial confession and recovery, they were challaned, and these facts cast serious doubt about the prosecution story. The case "Muhammad Yaqoob versus The State" (2007 M LD 100), is referred.
11. As regards the evidence of Extra Judicial Confession, in this case according to the prosecution story, only Abdul Hameed accused/appellant went to the house of Salman PW-6, who is grandfather of deceased Ehsan, where Sami Ullah PW-7, cousin of the complainant was also present and the accused/appellant confessed his guilt. Although, according to Salman PW-6 the accused Abdul Hameed disclosed the mode of murder but the details of the occurrence with regard to the place of occurrence and its time, was not narrated by him and furthermore, even if such extra judicial confession was made, no corroborative piece of evidence in this regard could be collected by the police against him. Apart from that, a feeble person of 60-years had allegedly confessed guilt, then why both the witnesses who otherwise happened to be close relatives of the complainant as well as deceased, did not try to arrest him. It is pertinent to mention here that as per prosecution witnesses i,e, the complainant Muhammad Sadiq and others, accused appellants were arrested on 12.04.2008 immediately after QUL KHAWANI of the deceased and QUL KHAWANI was held in the early morning. According to the stance of Ali Sher Sub-Inspector/Investigating Officer PW-14, the accused confessed his guilt before Muhammad Salman and Sami Ullah and in this respect statements of both the witnesses were recorded by him on 12.04.2008. If the statements of prosecution witnesses are believed on the aspect that accused were arrested soon after QUL KHAWANI (held on 12.04.2008), then when the accused were in the custody of the police how they could approach the witnesses namely Muhammad Salman PW-6 and Sami Ullah PW-7 and confess the guilt, especially when it has categorically come in the prosecution evidence that QUL KHAVANI was held at 6/7.00 a.m., police came in the village and arrested the accused at 8/9.00 a.m. There is yet another important contradiction amongst the statements of PW-6 and 7 i,e, according to Salman PW-6 Abdul Hameed came to him and by confessing the guilt he gave details of the occurrence and there is no mention about Zahid, whereas, Sami Ullah PW-7 in clear wrords disclosed in his examination-in-chief that "After 10115 minutes after departure of Hameed, Zahid Abbas came there. We asked Zahid what had happened he told us that the deceased was carrying illicit relations with his sister and they had killed Ahsan." As discussed above, Muhammad Salman PW-6 and Sami Ullah PW-7 while appearing in the witness-box tried to improve the prosecution case to lend strength, but these improvements were duly confronted during cross- examination, as they never disclosed such improved facts to the police at the time of recording their statements under Section 161, Cr.P.C. This fact is further proved by the statement of Sami Ullah PW-7 himself when he stated that his statement had never been recorded before the police and he never approached the police to tell about the arrival of Abdul Hameed and Zahid Abbas accused/appellants. This above pointed unnatural conduct of the PWs, admission of PW-7 with regard to non-recording of his statement by the police and other above pointed glaring contradiction appearing in the statements of these PWs, drastically damages the case of the prosecution to the extent of extra judicial confession.
12. As regards the evidence of recovery, although it is case of the prosecution that certain recoveries were affected by Ali Sher Sub-Inspector/Investigating Officer PW-14 on the pointation and disclosure of Zahid Abbas accused/appellant, like Chaddar (PALLI) P-1, Rope P-2 and Kassi P-3, but none of these articles was blood stained and furthermore, these articles are not only of daily usage by the farmers in the villages, but are also commonly available in the market. Moreover, the recovery was affected from the dwelling house. Furthermore, as admitted by the PWs at the time of recovery, lumberdar of the village and other respectable of the locality had gathered, then why anyone amongst those private and unrelated persons was not associated with recovery proceedings. As per postmortem report, bloody discharge from mouth was present. This being the position, if the dead body was wrapped in a Chaddar "PALLI", and bloody discharge was oozing from the mouth of the deceased, then as a normal course some bloody discharge stains must have been present on the Chaddar "PALLI" as well, but nothing of this sort has come in the record of the prosecution nor said cloth/Palli was sent to Chemical Examiner, Forensic Laboratory or histopathologist for analysis and Deoxyribonucleic Acid test. For this reason, this recovery could not be wedded with the commission of offence. Therefore, without there being any independent corroboration, specific identity or any other connection of such recovered articles with the murder, this recovery becomes inconsequential in this case.
13.As shall be seen from the narration of FIR, no motive what so ever has been set by the complainant, nor any such motive was alleged by him before the police and even this motive was not alleged by him while appearing before the learned trial Court in the witness box. The motive element has been introduced only by Muhammad Sarwar PW-2 and Khadim Hussain PW-3 that Abdul Hameed and Zahid Abbas had suspicion that Ehsan deceased had illicit relations with daughter of Abdul Hameed and due to that reason Ehsan was killed by them. But except these balled assertions, no other corroboration is available from entire prosecution evidence. Even these two witnesses during cross-examination admitted that accused never complained them about this motive nor any panchayat was convened. The Investigating Officer while appearing in the witness-box as PW-14 during cross-examination admitted that he could not say if Abdul Hameed had any sister namely Mst. Razia Bibi. In this view of the matter, the motive told by these witnesses was nothing but dishonest improvement in the prosecution case.
14.For what has been discussed above, as the evidence of last seen and extra judicial confession has been disbelieved and recovery C, could not be wedded with the commission of crime, whereas, the motive is entirely based on dishonest improvements by the prosecution witnesses, therefore, we hold that prosecution has failed to prove its case against the accused/appellant beyond any shadow of doubt. Consequently, we allow this appeal and set-aside the conviction as well as sentence of the accused/appellants. They shall be released forthwith if not required in any other case. The record of the learned trial Court be sent back immediately and the case property, if any, shall be disposed of in accordance with law.
15. In view of the above, notice for enhancement is recalled and Criminal Revision No, 443/2009 is dismissed.