Aalia Neelum, J.- Appellant-Ghulam Nabi by way of instant appeal, has challenged the acquittal of respondents No.1 and 2 (Muhammad Iran and Muhammad Kamran @ Kami) recorded by the learned ASJ, Gujranwala camp at Wazirabad vide judgment dated 26.11.2004 in case FIR No.63 of 2003, dated 31.08.2003, offence under sections 302/109 PPC, registered at Police Station Sohdra, Tehsil Wazirabad, District Gujranwala.
2. Briefly, the facts narrated in the crime report (Ex.PO) are that on 29.08.2003 at about 10:30 a.m, the nephew of the complainant namely Dilawar left the house by asking his family members to press his clothes for offering "Jumma" prayer but he did not return back till evening. Mst. Surriya Bibi, the mother of Dilawar, called complainant and informed him about missing of his son Dilawar.
Upon which, the complainant Ghulam Nabi, Muhammad Ashraf, Haji Mukhtar, Muhammad Ramzan etc. started search of Dilawar. They also made announcement on the load speaker but Dilawar was not found. Later on, on 31.08.2003 at 7:00 a.m, the complainant Ghulam Nabi received the information that a dead body in naked condition, whose throat has been cut is lying in the plot of Muhammad Aslam situated in back of Civil Hospital, Mohallah Umer Shah. That some unknown persons murdered Dilawar in the deserted house of Muhammad Ashraf Sindhu on 29.08.2003.
Today at night, dead body was thrown out from the room in the open plot. On receiving information, Manzoor Ahmad, Inspector (PW-11) along with other police officials reached at the spot. Where Ghulam Nabi, complainant (PW-4) moved complaint (Ex.PC), upon which Manzoor Ahmad, Inspector (PW-11) after endorsing police "Karvi" sent the same to the Police Station through Inayat Ullah-62/C for registration of formal FIR (Ex.PO). Thereafter, the I.O inspected the place, where the dead body was lying and prepared rough site plan (EX.PG). Thereafter, the I.O inspected the dead body of Dilawar-deceased, prepared inquest report (Ex.PH), application for postmortem examination (Ex.PJ), injury statement (Ex.PK) and sent the dead body to the THQ, Hospital, Wazirabad for postmortem under the escort of Faiz Ullah-1076/C (PW-3).
3. Ghulam Nabi complainant (PW-4) had produced second application (Ex.PC/1) through which he (PW-4) nominated Muhammad Irfan and Muhammad Kamran @ Kami (respondents No.1 and 2) as accused. Wherein, it was alleged that Muhammad Irfan (respondent No.1) killed the deceased with the conspiracy of Muhammad Kamran @ Kami (respondent No.2). That Muhammad Irfan (respondent No.1) after administering intoxicant to Dilawar cut his throat. It was stated in the application that capsules of intoxicant was provided to Muhammad Irfan (respondent No.1) by Muhammad Kamran @ Kami (respondent No.2). He recorded supplementary statement of the complainant and statement of prosecution witnesses under section 161 Cr.P.C. He also secured the blood stained earth of the deceased from the room of house of Muhammad Ashraf along with 'Qameez' P7, 2 empties of Pepsi bottles P2/1 2, 8 capsules bearing Ferozi colour P3/1-8, 6 capsules of liver colour P4/1-6, towel P5 and a rope P6 vide memo Ex.PD. After postmortem of the deceased, the Constable Faiz Ullah (PW-3) handed over to him last worn clothes of the deceased i.e 'Shalwar'
P1 along with five sealed boxes, one envelope which were taken into possession vide memo Ex.PB.
The Draftsman Masood Ahmad Bhatti prepared scaled site plan Ex.PL and Ex.PL/1 on the pointing out of the prosecution witnesses and I.O. He also recorded his statement under section 161 Cr.P.C.
On 10.09.2003, the I.O recorded statements under section 161 Cr.P.C of Muhammad Saeed, Muhammad Iqbal, Muhammad Haq Nawaz and Haji Mukhtar. On the same day i.e 10.09.2003, he arrested Muhammad Irfan and Kamran @ Kami accused. On 14.09.2003, during investigation accused Irfan led to the recovery of 'Churri' blood stained P8 from the deserted house of Ashraf Sindhu, which was taken into possession vide recovery memo Ex.PE and I.O also prepared site plan of the place of the recovery Ex.PM. On the same day, during investigation accused Kamran @ Kami led to the recovery of 9 capsules P9/1-9, which he took into possession vide recovery memo Ex.PF and he also prepared site plan of the place of recovery Ex.PN.
4. Having found the accused (respondents No.1 and 2) guilty, the I.O prepared report under section 173 Cr.P.C and sent the same to the Court of competent jurisdiction. The learned trial court on 15.05.2004, formally charge sheeted the accused (respondents No.1 and 2), to which they pleaded not guilty and claimed trial.
5. The prosecution in support of the version, produced twelve (12) witnesses. Ghulam Nabi (PW-4) is complainant, Muhammad Saeed (PW-6), Haji Muhammad Iqbal (PW-7) Abdul Rehman (PW-8) and Muhammad Haq Nawaz (PW-9) were witnesses of extra judicial confession. Whereas, investigation in this case was conducted by Manzoor Ahmad, Inspector (PW11). Dr. Shah Nawaz (PW-1) had conducted postmortem of deceased-Dilawar on 31.08.2003 and observed as under:- External appearance: I examined the dead body of young male of average physique. Foul smell coming from the body and lot of maggots and larva of flies present on body. Dead body was naked, were markedly swollen. Right eye boll was protruding out of right orbit and was soften.
Tongue was between teeth. There was generalized swelling of the body with brownish black discoloration of anterior abdominal wall and extremist. Penus and scrotum markedly swollen and marbling was present on the back. Front of the chest over external area was nibbled by birds etc. No ligature mark on hands and limbs. Rigor mortis was absent.
External injuries:
1. Incised wound 14cm x 3cm on the front of neck incising tracheal rings and larylx going deep also cutting external jugglar veins and carotid arties and further going deep.
2. Incised wound 6cm x 2cm on the front left side of neck going deep just below the injury No.1.
3. Abraided area 3cm x 2cm on the back of right elbow.
Cranium and Spinal Cord: Scalp and skull were opened and found healthy. Vertebrae were healthy and not opened. Membrances and brain were also healthy.
Thorax: Walls, ribs and cartilage, pleurae, right lung, left lung were healthy. Heart was opened and empty and healthy. Great vessels of neck were cut as already mentioned. Larynx was cut and upper tracheal rings were also cut.
Abdomen: Stomach was opened, was healthy and empty, small intestines was healthy and contained liquid type. Large intestines were healthy and full of fiscal matter. Liver was healthy but brownish black in colour. Urinary bladder was healthy and empty.
External Genigalia: were markedly swollen and healthy. Rest all orgins were also healthy.
Muscle, bone, joints: As mentioned in the injuries No.1 and 2 muscles and cardilages were incised as mentioned in injury No.1.
Opinion: In my opinion injury No.1 is sufficient to cause death in the ordinary course of life, as there were no signs of struggle were seen on the body, sample of viseares was taken and sent to Chemical Examiner Punjab Lahore for detection of any poison. All the injuries were antemortem in nature. Sample of viseares in five sealed jar were taken. Probable time elapsed between injury and death about 15 to 30 minutes and between death and postmortem on the observation already recorded, it is between 36 to 48 hours. After completing the postmortem I handed over a well stitch dead body along with police papers. One 'Shalwar' and five sealed jars and one sealed envelope to the constable Faiz Ahmad No.1070/C. Postmortem report Ex.PA and Diagram Ex.PA/1 are correct carbon copy of my handwriting and also bears my signatures.
6. On 04.09.2004, the learned DDA given up Muhammad Asghar and Ramzan being unnecessary.
On 16.10.2004, the learned DDA closed evidence of the prosecution while tendering report of chemical examiner Ex.PP, Ex.PP/1 and reports of Sirologist Ex.PQ and Ex.PQ/1.
7. The accused (respondents No.1 and 2) were also examined in terms of section 342 Cr.P.C, wherein they opted not to appear as their own witnesses in disproof of the allegations leveled against them in the prosecution version, nor they opted to lead evidence in their defence. In response to the question why this case against them and why PWs deposed against them.
Muhammad Irfan accused (respondent No.1) made the following deposition.
"My father Ali Ahmad do the job of Brazier selling and manufacturing while the complainant do the same job in the same locality of village Sohdra. Ghulam Nabi complainant has forcibly taken possession of our house situated in village Sohdra and due to this reason he had involved me in this case falsely to retain the possession of our house"
Similar response to the question why this case against him and why the PWs deposed against him, Kamran @ Kami accused (respondent No.2) made the following deposition:- "I have been involved in this false case due to village rivalry. I have no concerned with the murder of deceased Dilawar neither I have involved in the conspiracy of murder of deceased Dilawar and prosecution has not produced against me any independent witness"
8. On 28.10.2004, Muhammad Kram while tendering copy of report of Chemical examiner Ex.DA closed his defence evidence.
9. The learned trial court after evaluating the evidence available on the record and in the light of arguments advanced from both sides, found that the prosecution had miserably failed to prove the allegations leveled against the accused (respondents No.1 and 2), resulting into acquittal of the accused (respondents No.1 and 2).
10. As per prosecution itself, there was no eye witness who saw the incident. The incident as alleged by the prosecution occurred on 29.08.2003 at about 10:30 a.m, when Dilawar, nephew of the complainant-Ghulam Nabi (PW4), asked his family members to press his clothes as he want to offer "Jumma" prayer. Thereafter, he left the house but he did not turn up back, upon which Dilawar's mother Mst. Surriya Bibi informed to the complainant that Dilawar did not return back, upon which he (the complainant) started search of Dilawar with Muhammad Ashraf (PW-5), Haji Mukhtar (PW-10) and Muhammad Ramzan (given up). They also made announcements on loud speaker but Dilawar did not meet. On 31.08.2003 at 7.00 a.m, the complainant received the information that a dead body in naked condition is lying in the plot of Muhammad Aslam situated at the back side of the Civil Hospital, Mohallah Umer Shah. Thereupon, the complainant (PW-4), along with Muhammad Ashraf (PW-5), Muhammad Ahmad (PW-10) and Muhammad Ramzan (given up) went to the spot and found that the dead body was of Dilawar, who was murdered by cutting the throat by some unknown persons on 29.08.2003 in the room of the deserted house of Muhammad Ashraf and on 31.08.2003, the dead body of Dilawar was thrown by unknown accused in the plot of Muhammad Aslam. The fact remains that the crime report (Ex.PO) was lodged against unknown accused persons. However, on the same day, the complainant-Ghulam Nabi through an application (Ex.PC/1) named the accused (respondents No.1 and 2) for committing the murder of the deceased by administering intoxicant. The complainant-Ghulam Nabi (PW-4) had not disclosed his source of information nor he disclosed name of the witnesses, who informed him about the names of the accused. Ghulam Nabi (PW-4) deposed during the cross examination that:- "The maternal uncle of Irfan accused told me that Irfan has murdered the deceased. The name of maternal uncle of Irfan is Muhammad Hanif. The above said Muhammad Hanif has not been mentioned in the schedule of witnesses" Strangely Muhammad Hanif was not examined as witness for the prosecution obviously with a view that his evidence could be used against the accused. No reason has been indicated as to why Muhammad Hanif was not examined. The important witness was not shown in calendar of the witnesses, which creates doubt about the genuineness of the deposition of Ghulam Nabi (PW-4).
11. There is another aspect of the case. In the present case, definitely Ghulam Nabi (PW-4) and Muhammad Ashraf (PW-5) are close relatives of the deceased. As per prosecution case the complainant (PW-4) came to know about the dead body lying in the plot of Muhammad Aslam on 31.08.2003 at 07:00 a.m. Ghulam Nabi (PW-4) deposed during cross-examination that:- "One boy told me about the dead body but I cannot tell his name. When I received the information about the dead body I was present at Ghousia Chowk along with Ashraf, Mukhtar and Ramzan."
Whereas Muhammad Ashraf (PW-5) deposed during cross-examination that:- "We were sitting on cots in the house of Mst. Surriya Bibi where a boy whose name, parentage, caste and age is not known to me came there."
According to their statement, they immediately rushed to the spot and identified the dead body of Dilawar. They stated that they did not inform the police. The police itself came at the spot. For the purpose of clarity we reiterate the facts that the complaint (Ex.P.C) was handed over to the police at the spot at 07:30 a.m, the police as well as the complainant received the information about the occurrence at 07:00 a.m on 31.08.2003, the FIR was chalked in the Police Station a kilometer away at 07:40 a.m. It has come in the evidence that inquest on the dead body had started after dispatching the complaint (Ex.PC) to the Police Station and the dead body had been shifted to THQ Hospital, Wazirabad for autopsy. This fact fortified by a perusal of (Exh.PH) the inquest proceedings. It is significant that the dead body was shifted to mortuary for conducting post mortem examination within one hour but the post mortem examination could not be held before 04:00 p.m. The above facts do influence the mind of the Court and leave an impression that there had been some wrangling about the time of the registration of the case. From the above, it also reveals that both prosecution witnesses i.e PW-4 and PW-5 being chance witnesses had not been able to explain their presence at the spot, thus causing a clear doubt on the entire prosecution story.
12. We now come to the evidence of extra judicial confession allegedly made by accused Muhammad Irfan before Muhammad Saeed (PW-6) and Haji Muhammad Iqbal and accused Muhammad Kamran @ Kami confessed before Muhammad Haq Nawaz (PW-9) and Haji Mukhtar Ahmed (PW-10) about their guilt. We find the same to be improbable and lacking in credence.
According to Muhammad Saeed (PW-6) on 10.09.2003 at 12:30 p.m, when he was sitting in his house in village Sohdra, accused Muhammad Irfan came and confessed before them. That he (accused Muhammad Irfan) gave two bottles of Pepsi with intoxicated material (capsule) to the deceased Dilawar and when he became unconscious he had cut throat with knife of the deceased Dilawar. Whereas during cross-examination, he admitted that on 10.09.2003, it was Wednesday and he attended his duties in the school. He also deposed during cross-examination that:- "On 10.09.2003 I did not obtain the short leave. In those days the school used to close at 12:30 p.m.
On 10.09.2003, I left the school on 12:15 p.m. The accused Irfan did not tell us as to one Kamran provided him their number"
13. Haji Muhammad Iqbal (PW-7) stated during examination-in-chief that on 10.09.2003 at about 12:10 p.m, he was present in the house of Master Muhammad Saeed (PW-6) when at about 12:30 p.m, accused Muhammad Irfan came there and confessed his guilt. Muhammad Haq Nawaz (PW- 9) deposed that on 10.09.2003 at 02:00 p.m, accused Muhammad Kamran @ Kami confessed his guilt and stated that he provided intoxicant capsules to Muhammad Irfan accused. He further deposed that he and Haji Mukhtar produced him before the police. Whereas during cross- examination, he deposed that:- "Police did not record my statement. I never visited the Police Station again said I went to the Police Station along with Muhammad Kamran @ Kami. My statement was not recorded by the police at that time. Prior to our arrival Muhammad Irfan accused was already in police lockup."
14. In the same lines Haji Mukhtar Ahmed (PW-10) deposed, whereas Manzoor Ahmed, Inspector (PW-11) deposed that he arrested both accused on 10.09.2003. From the above stated facts according to the prosecution case, the murder of Dilawar was committed in a heinous manner under secrecy. The persons who committed the murder after taking all precautious to keep secrecy are not likely to confess their guilt after committing the offence especially when there is no direct evidence against them. Manzoor Ahmed, Inspector (PW-11) admitted during cross- examination that no direct evidence is available against the accused persons pertaining to the conspiracy except the statement of the witnesses of extra judicial confession in whose presence the accused have confessed their guilt. The evidentiary value of the extra judicial confession depends upon the veracity of the witnesses to whom it is made and it is for the Court to decide regarding the credibility and acceptability of the evidence. The evidence of witnesses of extra judicial confession does not corroborate the crime as it is only stated by the witnesses that accused stated that which role they played but they (accused persons) did not state that what was the role of their (accused persons) co-accused. It is in the evidence that Muhammad Irfan accused did not state that from where he got intoxicant capsules and he concealed weapon of offence i.e knife. Both PW-6 and PW-7 admitted during cross-examination that Muhammad Irfan- accused did not state a single word about Muhammad Kamran @ Kami. In the same manners accused Muhammad Kamran @ Kami did not state when he provided intoxicant capsules to accused Muhammad Irfan and when accused Muhammad Irfan murdered Dilawar. In other words, it must be evidence which connects the accused in material particulars not only to the affect that the accused committed the offence but the accused committed the offence. In the present case, sample of viseares were sent to Chemical Examiner Punjab Lahore for detection of any poison. The report of Chemical Examination Ex.DA reveals that poison is not detected in the viscera.
15. Lastly, we come to the evidence of the recovery of blood stained knife (P.8) and eight capsules P-9/1-8 from Muhammad Irfan and Muhammad Kamran @ Kami respectively and report of Chemical Examiner (Ex.PP) in respect of blood stained knife. From the evidence of the witnesses and memo of recovery, it is clear that the knife (P.8) was hidden by digging earth at the Eastern Western side of the house. Abdul Rehman (PW.8) stated that knife was stained with blood and earth. The only incriminating evidence led against respondent No.1 by the prosecution is the recovery of blood stained knife. The aforesaid knife was recovered from under the earth and therefore, the knife contained earth as well, as admitted by PW-8. The report of Chemical Examiner did not show that blood stained knife showed any reaction. Therefore, it could not be proved that there was any blood on the knife and if there was any blood, the same was the blood of the deceased. The report of Chemical Examiner Lahore (Ex.PP) is doubtful as the report had not disclosed that there was any reaction on the knife due to having been buried in the earth. On the other hand, respondent No.2 cannot be expected to keep the capsules P-9/1-8 in his house for a long period, when he could have easily disposed of the same. Besides, the recovery memo Ex.PD does not indicate that what kind and make of covers of capsules were recovered from the room where Dilawar was murdered. The said fact cast a shadow of doubts on the alleged recovery.
16. The result of above discussion is that the charge against respondents No.1 and 2 are not proved.
It is settled proposition of law that an accused is presumed to be innocent till proved guilty.
However, in the present case, the prosecution had failed to establish its case beyond shadow of reasonable doubt. The prosecution has failed to complete the chain of circumstances which would lead only to the hypothesis of the guilt of respondents No.1 and 2 and negate their innocence.
17. Accordingly we find no reason to interfere with the judgment impugned into appeal and the appeal is, therefore, dismissed.