IJAZ NISAR, 1.-Abdul Qayyum (22) son of Muhammad Jan, caste Qureshi, reside!: t of Wandi Chamar, ?Olice Staticn Makood, Tehsil and District Abbottabad and Muhammad Arshad (23) son of Ghulam Haider, resident of Krim Park, Lahore, vere tried by the learned Additional Sessions Judge, Lahore for the murder of Mubarik Butt (50) deceased and taking away his belongings. Vide judgment dated 3rd February, 1981, Abdul Qayyum appellant was convicted under section 302, P. P.
C. And sentenced to death and a fine of Rs, 5,000 or in default to undergo two years' R. I. He was also convicted under section 412, P. P. C. And sentenced to seven years' R. I. And a fine of Rs, 2,000 or in default to undergo further R.
1. For one year. Half of the fine; if realized was to be paid to the heirs of the deceased as compensation. Muhammad Arshad accused Was, however, acquitted.
We have before us the murder reference as well as the appeal,
2. Briefly steted the prosecution case is that on the night preceding the date of occurrence Muhammad Arshad acquitted accusei brought Abdul Qayyum appellant to the deceased at his club namee Mubarik Health Club near Iqbal Park, Minar-e-Pakistan, Lahore, for getting him employed as domestic servant of the deceased. Muhammad Muneer Mania (P. W. 9), Anwar Khan "2. W. 10) and Muhammad Shafiq (P. W. 13) had seen the appellant with the deceased till 9.00 p. m.
In the morning of 5th February, 1980 Abdul Hameed (P. W. 8) saw a large number of persons collected in the Health Club of the deceased. On enquiry, he was told that Mubarik deceased had been murdered in the night by some unknown persons. He reported the matter at Police Station Badami Bagh by lodging the F. I. R. Exh. P. C. With Muhammad Ashraf A. S. I. (P. W. 16). Abdul Wajid Hamayun (P. W. 7) nephew of the deceased also reached the spot and found that his two golden rings, a woollen blanket, taph:-recorder, wrist-watch and cash were missing.
On reaching the spot Muhammad Aslam S.-I. Despatched the dead body for the posh-mortem examination and effected the recoveries of bloodstained articles from the spot. Further investigation was carried out by Maqbool Baig, Inspector (P. W. 17). The appe;lant was arrested from Rawalpindi on 17th May, 1980. Maqbool Baig, Inspector brought him to Lahore. Muhammad Muneer Maula (P. W. 9) and Maqsood Alain (P. W. 14) identified him at Police Station Naulaklaa, Lahore.
3. On 28th May, 1980 Abdul Qayyum appellant led the police to Nemat Kadah Hotel, Lahore and got recovered woollen blanket P. 14 of the clecerr-ed from Raja Muhammad Akram (P. W. 11) through memo. Exh. P. J attested by Muhammad Akram (P. W. 11), Said Rasul and Ghulam Muhammad (given up). On 31st May, 1980 Raja Muhammad Akram P. W. Produced the tape-recorder Exh. P. 13 before the Inspector through mmo. Exh. P. H. Attested by Muhammad Akram (P. W. 11), Ghulam Muhammad and Said Rasul (given up). According to Raja Muhammad Akram P. W. He had purchased these articles from the appellant.
4. On 2nd June, 1980 the appellant got recovered two golden rings P. 12/1-2 and wrist-watch P. 15 from his house through memo. Exh P. K. Attested by Ghulam Fareed (P. W. 12) and Karamat Shah (given up). However, nothing was recovered from Muhammad Arshad accused. Abdul Wajid Hamayun identified the above articles as belonging to his maternal-uncle Mubarik deceased.
According to Muhammad Akram (P. W. 11) the appellant had sold the tape-recorder and woollen bianket to him for Rs, 750 and Rs, 150, respectively through a receipt. The appellant pleaded not guilty to the charge and denied the prosecution allegations. He did not lead any evidence in defence.
5. Dr. Nasim Abid, Police Surgeon, Lalore conducted autopsy on the dead body of Mubarik deceased and found the following injurfes thereon
(1) Laierated wound 21ix 1/2 cm bone deep on the inner side of left eye-brow.
(2) Lacerated wound 2x cm skin deep medial to injury No, 1 about 1 cm distance.
(I) Lacerated wound 6 x 1 cm into bone deep transversely on the left ride of top of head.
(4) Lacerated wound 9x 1 cm into bone deep on left occipital area in transverce direction.
(5) Lacerated wound 6i x 1 em bone deep on the left occipital parietal area.
(6) Lacerated wound 4 x 3/4 cm bone deep on the left occipital area close to injury No, 5.
(7) Lacerated wound 5 x 1 cm bone deep 2 cm posteriolateral to injury No, 6.
(8) Lacerated wound 1 x 1/2 cm skin deep on the bridge of nose.
(9) Lacerated wound lx 1/5 cm skin deep below left eye.
(10) Bleeding from both nostrils.
(11) Abraided contusion l x 1 cm on the back of distal phalanx of right index finger.
Scalp was injured and the frontal bone was fractured.
Stomach was healthy and contained 4 ozs. Liquid fluid. Small intestines were empty while large contained faecal matter. Bladder was empty.
In the doctor's opinion, all the injuries were ante-mortem. Death had occurred due to shock resulting from head injuries with fracture of frontal bone. Time between injuries and death was immediate.
As the doctor was proved to have gone abroad secondary evidence was led to prove the post- mortem report Exh. P. A.
6. The prosecution case rests on the evidence of Muhammad Munir Maula (P. W. 9), Anwar Khan (P.
W. 10) and Muhammad Shafeeq (P. W. 13). They deposed to have last seen the deceased with the appellant and Arshad the acquitted accused. Maqsood Alam (P. W. 14) stated that he had seen the appellant with Muhammad, Arshad accused proceed-ding towards Minar-e-Pakistan on a scooter on the night of occurrence. He had not given the name of the appellant to the police but identified him at the police station after his arrest. Muhammad Akram (P. W. 11) and Ghulam Farid (P. W. 12) deposed about the recoveries at the instance of the appellant. Abdul Wajid Hamayun (P. W. 7) identified the recovered articles as that of the deceased.
7. Relying upon the evidence of the last seen and recoveries of tape-recorder, woollen blanket, golden rings and the wrist-watch at the instance of the appellant the trial Court convicted and sentenced him as stated above. However, the circumstance of being last seen in the company of the deceased was not considered sufficient by itself to connect Muhammad Arshad accused with the crime and in consequence he was acquitted by giving him the benefit of doubt.
8. It is argued by the learned counsel for the appellant that the circumstantial evidence led by the prosecution is not sufficient to sustain the appellant's conviction. The evidence of last seen is not of any significance because the P. Ws. Who deposed about it did not know the appellant previously and had not named him in their statements before the police but had given his description only and after the arrest of the appellant they were not subject to any identification test in the Jail but identified the appellant at the police station only. The recoveries at the instance of the appellant are also seriously assailed and it is contended that these by itself cannot be considered sufficient to link the appellant with the offence of murder. The legality of the conviction of the appellant both under sections 302, P. P. C. And 412, P. P. C. At the same time is also assailed.
9. No motive for the murder is alleged against the appellant. The P. Ws. Who deposed about having seen the appellant last in the company of the deceased were not acquainted with the appellant previously and did not know his name even. In these circumstances, there not being subjected to a test identification parade in the Jail strongly reacts on their testimony. In Kaka alias Abdul Razzak v.
The Slate the evidence of a witness not acquainted with the accused prior to the occurrence in the absence of identification parade was not considered of much value. The evidence of last seen in the absence of other connecting circumstances is generally considered to be a weak type of evidence to sustain conviction for the offence of murder. In Karamat Hussain v. The Stale it was held that in the case resting on circumstantial evidence the rule is that no link in the chain should be broken and the circumstances should be such as could not be explained away on any hypotheses other than the guilt of the accused. It was further held in the said case that no conviction for the murder could be based on mere fact that the accused was last seen with the deceased.
10. Maqsood (P. W. 14) a Wajtakkar witness is also not worthy of reliance because he appeared before the police for the first time about 2 1/2 months after the occurrence. He without any reasonable explanation for his delayed appearance too did not participate in any test identification parade in the Jail.
11. Muhammad Akram P. W. 11 who deposed about having produced the tape-recorder P. 13 and Woollen blanket P. 14 of the deceased at the instance of the appellant is also not worthy of reliance.
He is a waiter in Nemat Kadda Hotel, Lahore and stated that the appellant whom he had seen for the first time had visited his Hotel for taking meals and there he expressed the desire to sell the tape-recorder and woollen blanket which he D purchased from him through a receipt. He stated that he had produced a photo copy of the said receipt before the police but no such receipt has been produced by the prosecution. There is absolutely no corroboration of his testimony. On the other hand his evidence is inconsistent with the evidence of Maqbool Beg, Inspector (P. W. 17).
According to the latter, woollen blanket P. 14 was produced by Muhammad Akram P. W. On 28th May, 1980 while the tape-recorder was produced by him on 31st May, 1980 at Hotel Nemat Kadda, Lahore whereas Muhammad Akram (P. W. 11) stated that both the articles were recovered at one occasion. He was evasive as to the place of recovery. In the first instance, he stated that they were produced at Hotel Nemat Kadda and in the next breath he stated that these were produced by him1 2 at his village. His statement that he did not ask for the identification of the appellant before making the purchases casts a further doubt on his testimony. It looks highly improbable that a waiter would enter into a bargain involving nearly a sum of Rs, 1,000 without proper inquiries as to the credentials of the seller. For these reasons, we do not consider it safe to use these recoveries against the appellant to connect him with the offence of murder.
12. However, as regards the recoveries of golden rings P. 12/1 and 2 and wrist-watch P. 15 at the instance of the appellant from his house, we have not been able to find out any defect or infirmity therein. These articles have been identified as that of the deceased by Abdul Majid Hamayun P. W.
7, a nephew of the deceased. He had stated about the theft of these articles even before the arrest of the appellant and their recovery. Ghulam Farid (P. W. 12) who proved these recoveries from the appellant's house is landlord of the appellant. According to him the appellant opened the lock of the house with a key and got recovered the above-mentioned articles. He is completely an independent witness and there appears to be no reason to doubt his testimony. The appellant has not claimed these articles. In these circumstances, this circumstance stands fully established against the appellant.
12.. After discarding the evidence of the last seen, we are left with the sole circumstance of the recovery of golden rings and the wrist-watch of the deceased at the instance of the appellant.
Since there is absolutely no evidence to link the appellant with the offence of murder his conviction under section 302, P. P. C. Is not sustainable in law and is accordingly, set aside. However, the recoveries of the golden rings P. 12/1-2 and wristwatch P. 15 at the instance of the appellant stand fully proved but these recoveries per se in the absence of any evidence to the effect that the appellant had received or retained them or had reason to believe to have been transferred by the commission of a decoity, will not make him liable under section 412, P. P. C. Consequently, we alter his conviction from section 412, P. P. C. To section 411, P. P. C. And sentence him to three years' R. I.
And a fine of Rs, 5,000 (Five thousand) or in default to undergo nine months' R. I. Further.
The appeal is accepted to the above extent and the death sentence is not confirmed. PLD 1965 Kar. 31 1972 SC MR 15