MUHAMMAD ALAM, J.---Through this criminal appeal, appellants/convicts have challenged judgment/conviction order dated 15-12-2014 of the trial court, whereby, the learned trial court convicted the appellants for the offence of section 302(b), P.P.C. and sentenced them for life imprisonment. Learned trial court further sentenced appellants for payment of Rs.500,000/- each under section 544-A, Cr.P.C., and in default of payment of the said amount to the legal heirs of deceased, learned trial court further directed for simple imprisonment of the appellants for seven
(07) years. Through impugned order, learned trial court allowed the benefit of section 382(b), Cr.P.C.
2.The police, of PS City Gilgit, have chalked FIR No.12/2006, on the written application of FIR lodger, wherein, the FIR lodger Mohammad Hanif son of Abdul Latif has written the circumstances of prosecution story of the occurrence. On 21-12-2005, deceased travelled from Bunar Das Chilas to Jutial Gilgit and stayed in the house of Tota son of Ghazi Din. On 22-12-2005, he went to his sister's home at Skarkoi Gilgit and stayed there. Deceased had an amount of Rs.280,000/- which was given by his sister as amanat. Then deceased went to the house of accused Shah Alam etc. and then onwards the said deceased is missing. The FIR lodger searched the deceased in district Ghizer, district Kohistan and many other places, but could not trace him. One Ebadat Khan son of Qadam Khan resident of Konodas has told that he and deceased stayed in the house of accused on 23-12-2005, for a night, and then said person (Ebadat Khan) went away while deceased was sleeping. The FIR lodger has expressed his doubts that accused snatched the amount from deceased and then either murdered him or abducted him.
3. It is evident from the contents of FIR that the FIR lodger has chalked the FIR on 19-01-2006 while the occurrence took place on 23 or 24-12-2005.
4.Police conducted investigation and submitted challan for trial of the appellants/convicts.
Through challan, police prayed for trial of five persons including the appellants/convicts. Through the impugned order, learned trial court acquitted co-accused namely Adbullah Jan, Naseer and Abdul Rasheed sons of Mazoob Shah. Learned trial court completed trial proceedings and passed the impugned order. Learned trial court collected following evidence:-- 1.PW-1, Habibullah ... irrelevant 2.PW-2, Sawal Khan ...a witness of Exh.PW-2/A 3.PW-3, A Police Constable and witness of Exh.PW-2/A 4.PW-4, a witness of Exh.PW-2/A.
5.PW-5 ................................. irrelevant 6.PW-6.......................... ......turned hostile.
7.PW-7 ......................... ......irrelevant.
8.PW-8 .................................irrelevant 9.PW-9 ................................. irrelevant 10.PW-10...........................turned hostile 11.PW- 1 1...............................a witness of recovery of weapon of offence.
12.PW-12 ..............................turned hostile.
13.PW-13 ....... .................. . .. turned hostile.
14.PW-12, witness of Exh.PW-14/A, autopsy report.
15.PW-12, Investigating Officer.
5. We have heard learned counsel for parties and have gone through the material available on file.
The case in hand is an unseen occurrence. Prosecution could establish the case only through circumstantial evidence. So, we are taking up the prosecution evidence for discussion. Impugned order is also based on circumstantial evidence. While relying upon the circumstantial evidence, the learned trial court has remarked that the case in hand falls under Article 40 of Qanun-eShahadat Order, 1984. For ready reference, we reproduce article 40 of the Qanun-e-Shahadat Order, 1984 hereunder:--
40. How much of information received from accused may be proved.
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."
We are of the view that the learned trial court has very wrongly cited the Article 40 of Qanun-e- Shahadat Order, 1984, which has evidently no attraction to the case in hand. Firstly because prosecution failed to prove the information allegedly they obtained from the convicts/ accused.
Secondly because the manner and practice adopted by the prosecution in establishing the information that prosecution allegedly obtained from the convicts/accused is wrong.
6. Learned trial court has relied on Exh.P.W.2/A which is the only and most important piece of evidence showing recovery proceedings of the recovery of dead body of deceased. Investigating agency evidently conducted the said proceedings in the light of information allegedly they had obtained from the convicts/accused. As the murder of deceased is mysterious because the dead body of deceased was allegedly hidden after commission of the offence. Per prosecution story of occurrence, appellants/convicts admitted to have murdered the deceased and have hidden dead body of deceased in Kashiro Das or in the hills adjacent to the same. On said disclosure by appellants/convicts, police started the proceedings of recovery of dead body of deceased on pointation of the appellants/convicts and prepared Exh.PW-2/A. Exh.PW-2/A shows said proceedings. From plain perusal of Exh.PW-2/A, it is evident that police did not recover dead body of deceased inpresence of the PWs thereto and instead showed a jute bag to the PWs, claiming that the same contained dead body of deceased. It is also evident from plain perusal of Exh.PW- 2/A that neither of the legal heirs of deceased identified any dead body of deceased recovered through Exh.PW-2/A, in presence of the PWs thereto In examination-in-chief part of his statement, PW-2 has very clearly stated that:-- However I personally did not see the dead body."
In the last part of his statement, PW-2 has clearly stated that:-- "I verify my signature on the said document."
The second witness toExh.PW-2/A is PW-3, who is admittedly a police constable and is stating about any admission or confession of the appellants/ convicts before police. We have gone through the court-note in the examination-in-chief part of the statement of said PW, whereby, the learned trial court has noted the objections of the defense counsel. While giving judgment, learned trial court ignored to accept the objection recorded while recording statement of the said PW. In our opinion, the objection of the defense counsel was correct and it is not disputed that any admission or confession before police can never be read against the accused unless the same is independently proved through independent evidence. Police could cite any independent person as witness to Exh.PW-2/A. We feel that there were no circumstances, whatsoever, for citing a police constable as witness of such an important juncture of the case. PW-4 is the fourth witness in proof of recovery proceedings of the recovery of dead body of deceased. In the first sentence of his statement, PW-4 has only verified his signatures on Exh.PW-2/A. We do not rely on statement of this PW as there is chain of rulings, whereby, the joining of magistrate in an investigation proceedings has been repeatedly deprecated. Moreover, PW-4 has stated in cross examination part of his statement that the bag allegedly contained a dead body was not opened on the spot where the same was shown to be said PW. PW-4 has further stated that Exh.PW-2/A was prepared in the Police Station City Gilgit.
7. In our opinion, the above described evidence is the only prosecution evidence, whereby, prosecution has attempted, but in vain to prove that prosecution recovered dead body of deceased of the case. So, we are of the opinion that the prosecution has badly failed to establish the recovery of any dead body, particularly, dead body of the deceased of the occurrence reported through FIR No.12/2006. The rest of the pieces of prosecution evidence could be taken up for discussion only if prosecution had succeeded to establish the recovery of dead body of deceased of the case. In our opinion, impugned judgment is very bad in the eye of law and prosecution has badly failed to connect the appellants/convicts with the occurrence. We, therefore, set aside impugned order and acquit the appellants/ convicts from the case. We direct for immediate release of appellants from custody, if not required in any other case. This file be consigned to record.