' CH. MUSHTAQ AHMAD, J.---Appellant Muhammad Azam sent to be tried on the charge of abduction and homicide in case FIR No,100 dated 13.4.2009 registered under sections 365, 302, P.P.C. at Police Station Kmeer, District Sahiwal.
2 Learned Additional Sessions Judge, Sahiwal vide his judgment dated 29.3.2011 convicted the appellant under section 302(b), P.P.C. and sentenced him to death with payment of Rs,1,00,000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. and in the event of default to undergo further simple imprisonment for six months. Hence, above cited appeal and Murder Reference.
3. FIR (Exh.PM/1) was recorded on the complaint (Exh.PM) of Allah Ditta (PW-9) who reported that on 1.4.2009 his Mamoo Noor Zaman had come in Chak No,129/9-L at about 4/5.00 p.m. to watch Walla Kameer Muhammad Pinah' on bicycle. He had also his cell phone with him bearing No,0307- 2676691; that on 3.4.2009 at 4.30 p.m. Muhammad Ramzan came and informed him that his Mamoo Noor Zaman had come at the house of his Mamoo Inayat and went to Maila by leaving his bicycle at his house but he did not come back to take his bicycle; that complainant got worried about his Mamoo Noor Zaman and started searching him along with Abdul Rehman and Naik Muhammad in the area of Chak No,120/9-L but they, could not trace out him; that complainant suspected that his Mamoo was abducted or murdered by some unknown culprits. On this report law set in motion on 13.2.2009. Dead body of Noor Zaman, deceased was recovered by PW-14 on 21.4.2009 and post mortem was conducted by PW-3 Dr.Tahir Mehmood who opined that time between death and post mortem was between 15 to 30 days. Appellant was arrested in this case on 22.4.2009.
4. On the above information, police investigated the case and submitted report under section 173, Cr.P.C. Prosecution in order to prove charge produced fourteen witnesses in all. On 21.2.2011 after giving up Nosher PW being unnecessary and submitting reports of Chemical Examiner and Serologist (Exh.PP, Exh.PQ, Exh.PR) prosecution case was closed.
5. Statement of accused under section 342, Cr.P.C. was recorded on 2.3.2011. He pleaded not guilty and professed his innocence, opting not to make statement on oath under section 340(2), Cr.P.C.
6. Learned trial court after hearing arguments, recorded conviction and awarded sentence to the appellant as mentioned in the opening paragraph of this judgment.
7. We have heard the learned counsel for the appellants as well as the learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant in the light of circumstantial evidence like last seen and extra judicial confession and recoveries effected in this case during police investigation.
8. Admittedly present appellant Muhammad Azam was not nominated in the FIR lodged by PW-9 Allah Ditta, complainant. It was an unseen occurrence. Prosecution case hinges upon the statements of PW-6 to PW-12. None of them Maimed to have seen the appellant while committing murder of Noor Zaman within their sight. Dead body of Noor Zaman with separate neck and arm was found in wheat crop near Police Station Kameer unattended. Record is silent as to who informed the police about presence of dead body of deceased lying in the said field. Statements of PW-6 to 9 relate to the identification of dead body of deceased when police called them for the said purpose whereas statement of PW-10 Inayat was that while proceeding to Maila Kameer Muhammad Pannah' deceased parked his cycle in his house and when after passing of two days he did not come back PW-10 through his nephew Ramzan informed the complainant Allah Ditta (PW-9). Deceased went missing on 1.4.2009 whereas matter was reported to the police on 13.4.2009 when the police took into possession his cycle (P5). In the intervening period where the deceased remained, how he was murdered and how his dead body was thrown in the field of standing wheat crop is not explained by the prosecution. In this way the factum of slaying of the deceased upto throwing of his dead body in the field of wheat crop went unnoticed. Even no evidence of `Wajj Takkar' having seen by any of the PWs or any other person came on record. In this case main stay of the prosecution hinges upon the statements of PW-11 Rab Nawaz and PW-12 Ghulam Fareed before whom as per prosecution's own version appellant confessed his guilt of killing Noor Zaman.
FIR was lodged against unknown persons for abduction of Noor Zaman. None of the PWs had expressed suspicion against the appellant during search of deceased Noor Zaman. None had witnessed him killing the deceased. Apparently there was no reason for the appellant to confess his guilt before the said PWs who were relatives of the deceased which fact has been admitted by PW-11 in his statement. Even otherwise evidence of extra judicial confession is considered as weak evidence which in this case is not confidence inspiring. After excluding this piece of evidence there remains nothing to connect the present appellant with the commission of offence. So, in our considered opinion prosecution has miserably failed to bring home charge against the present appellant. So far as recovery of incriminating articles like Safa (P6) and CNIC (P8) of the deceased are concerned it does not appeal to reason that after the commission of murder accused would retain such articles with him. The medical evidence also does not advance prosecution case.
Resultantly, we are unable to go along with the findings arrived at by learned trial court because the evidence relied upon to pass the impugned. judgment is not only weak but suffers from a number of infirmities which go to the roots demolishing the prosecution case in as much as that evidence brought on record was neither convincing nor confidence inspiring. So, we find that conviction recorded by learned trial court is not sustainable. Consequently, this criminal appeal is allowed. Conviction and sentence is set aside. Appellant is acquitted of the charge. He shall be released from jail forthwith if not required in any other case.
9. As a corollary to the above, Murder Reference No,52 of 2011 is answered in Negative.