CH. MUSHTAQ AHMAD, J:- Appellant Aurang-zaib alias Guddu has filed this criminal appeal against judgment dated 28.04.2011 passed by learned Additional Sessions Judge, Lahore, whereby he was convicted under section 302(b) PPC in case FIR No.775/2006 dated 11.10.2006 registered with police station Green Town, Lahore and sentenced to death, alongwith compensation of Rs.10,00,000/- to be paid to the legal heirs of deceased under section 544-A Cr.P.C. Appellant was also convicted under section 201 PPC and sentenced to seven years R.I. With fine Rs.50,000/-, in default of payment of fine, to further undergo SI for six months.
2. FIR was registered on 11.10.2006 on the complaint made by Muhammad Younas under section 365 PPC regarding missing of his brother Muhammad Ashraf who was working in a factory at 54 Industrial Estate, Kot Lakhpat. On 05.03.2010, a human skeleton was recovered from a factory 54/M, regarding which FIR No.139/2010 was registered under sections 302, 201 PPC with police station Green Town, Lahore. Said skeleton was identified by Muhammad Younas, complainant of FIR No.775/2006 as to be that of his brother Muhammad Ashraf. Therefore, facts as well as documents of case FIR No.139/2010 were converted into file of FIR No.775/2006 by adding sections 302, 201 PPC therein.
3. After completion of investigation, challan was submitted before trial Court, where appellant was charge sheeted, who pleaded not guilty and claimed trial. Prosecution produced twelve witnesses during trial. On conclusion of prosecution evidence, accused was examined under section 342 Cr.P.C. He took the plea that he was falsely involved in this case on the asking of factory owners as they owed an amount of Rs.15 million to his father. On conclusion of trial, appellant was convicted and sentenced as mentioned above, hence this criminal appeal as well as murder reference.
4. Learned counsel for appellant argued that occurrence was unseen and the complainant did not raise suspicion against appellant for three years and even after the skelton/dead body had been recovered, suspicion was raised by complainant against one Ahsan Mallhi; that fact of identification of dead body is very much doubtful; that there was no motive for the appellant to kill the deceased; that there is no evidence available on record to connect the appellant with commission of alleged offence and the only piece of evidence prosecution has relied upon is alleged pointation by the appellant of place of burial of dead body. Learned counsel further argued that such pointation does not come within ambit of Article 40 of Qanun-e-Shahadat Order, 1984, as such conviction cannot be based on it.
5. On the contrary, learned DPG opposed this appeal contending that appellant was suspected to have committed murder and pointation made by appellant of the place where he buried dead body after murder of complainant's brother was proved by prosecution through cogent evidence.
Further argued that prosecution has proved charge against appellant beyond any shadow of doubt, therefore findings recorded by learned trial court are in line with evidence on record.
6. We have heard learned counsel for appellant as well as learned DPG and gone through the record with their assistance.
7. It has been noticed that brother of complainant went missing in the year 2006, regarding which he got registered FIR, wherein he did not raise suspicion against anybody. On recovery of human skeleton from the factory, another FIR No.139/2010 was registered under section 302, 201 PPC and appellant was arrested on the basis of suspicion. Autopsy was conducted by PW-1 Hamid Saeed, according to whom probable duration between death and postmortem examination was three years. It is admitted position that three persons including brother of complainant were missing from the factory. Skelton was not identifiable, which according to prosecution was identified from colour of its clothes as that of Muhammad Ashraf, brother of complainant. Investigating Officer appeared in the witness box as PW-9 who stated that three persons were missing from the factory but despite that he did not obtain DNA test. In view of above, identification of dead body in this case was a doubtful affair.
8. Complainant did not raise suspicion against appellant neither in earlier registered FIR nor in the FIR registered after recovery of skeleton/dead body. Investigating Officer (PW-9) admitted that complainant raised suspicion against another person namely Ahsan Mallhi and then against the appellant. It was prosecution version that appellant committed murder of Muhammad Ashraf just to grab money. However, this fact was not proved by producing any oral or documentary evidence.
The incident was admittedly unseen and according to prosecution case even nobody had seen the deceased in the company of appellant prior to incident. The only piece of evidence to connect the appellant with commission of alleged offence is pointation by him of the place of burial of dead body. In order to judge veracity of above said piece of evidence, we must have a glance over its evidentiary value in the light of relevant provision of law. It would be pertinent to mention here that brother of complainant was missing since 2006 and a skelton was recovered in the year 2010. Till then appellant was not in picture. He was arrested on suspicion after the skelton had already been recovered. According to Investigating Officer (PW-9) appellant pursuant to his disclosure before him pointed out the place wherefrom dead body was recovered, on 05.03.2010 and in this respect he prepared memo Ex.P-F which was attested by Muhammad Sabir (PW-4) and Ghulam Hussain.
Relevant provision of law relating to discovery of a fact in pursuance to disclosure made by an accused while in police custody is Article 40 of Qanun-e-Shahadat Order, 1984, which reads as under:- "When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved"
The above provision of law has been interpreted in various judicial pronouncements. In its landmark judgment in the case of "Mst. Askar Jan and others Vs. Muhammad Daud and others" reported in 2010 SCM R 1604, the Apex Court has provided following guidelines:- "In order to apply Article of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused".
9. We have carefully gone through in detail the facts of the case, the prosecution evidence and the arguments of learned counsel for the parties on the touchstone of principles laid down in the judgment cited supra. Skelton/dead body had been recovered prior to arrest of accused. Nothing was recovered or discovered on his pointation and the fact of recovery of skelton/dead body was already in knowledge of police and witnesses. In the circumstances, disclosure of appellant leading to pointation of place of burying dead body is inconsequential. Attempt to connect the appellant by alleged confession made by him while in police custody coupled with disclosure leading to pointation of the place of recovery of dead body is of no help to prosecution, hence the same cannot be used against him. Above referred view of the Apex Court was also followed by a Division Bench of this Court in case titled "Rehmat Elahi Vs. Abdul Majeed and another" reported in 2012 P Cr.
L J 1529.
10. For the reasons recorded above, prosecution has miserably failed to prove charge against appellant beyond reasonable doubt. Consequently, criminal appeal No.156-J of 2011 is hereby allowed and conviction and sentence awarded to appellant through impugned judgment is hereby set aside. Appellant Aurang-zaib alias Guddu is acquitted of the charge by extending benefit of doubt to him. He be released forthwith if not required in any other case.
11. Murder Reference No.213 of 2011 is answered in negative.