' Manzoor Hussain Sial, J.--Maqsoodul Hassan (23), Noor Nabi (50) and Liaqat Ali (25) accused were sent up for trial under section 364/302/ 379/34/109, P.P.C. For abducting Muhammad Amin driver on 5-10-1977 in Taxi Car and thereafter causing his murder. Liaquat Ali accused died before the commencement of trial.
' Malik Muhammad Afzal, Addl. Sessions Judge, Sahiwal tried other accused and vide his judgment, dated 8-3-1980 acquitted Noor Nabi, while convicted Maqsoodul Hassan under sections 302/364 and 379, P.P.C. He sentenced him under section 302, P.P.C. To death and fine of Rs,10,000 or in default to suffer R.I. For six months. He awarded him under section 364, P.P.C., R.I. For ten years and under section 379, P.P.C., R.I.For two years.
' The amount of fine if realized was directed to be paid as compensation under section 544-A, Cr.P.C. To the heirs of Muhammad Amin deceased.
2. Maqsoodul Hassan, convict assailed his conviction and sentences in appeal, and the case is also before us on reference under section 374, Cr.P.C. For the confirmation of his death sentence. This judgment will dispose of the appeal and the reference.
3. According to prosecution, Muhammad Sarfraz complainant and his brother Muhammad Amin deceased were drivers, employed by Mirza Muhammad Din (P.W.12) at Taxi Stand Sahiwal. On 5-10- 1976 at 6-30 p.m., when Muhammad Din, Muhammad Amin deceased and the complainant were present at the Taxi Stand, Maqsoodul Hassan, appellant and Liaqat Ali accused came there. Liaqat Ali accused (now deceased) told them that he needed car on hire for four days in connection with marriage. It was settled that he would pay Rs,250 as hire charges in addition to petrol used in the car. Muhammad Amin took both of the accused in Car No, KAQ-6446 and went away. According to the complainant the aforementioned car was normally driven by him and his driving licence remained in the car. At the time of departure Muhammad Amin was wearing 'Tetron' shirt, white shalwar and black Moccasin. On the following day, the complainant and Muhammad Din P.W. Had to go to Lahore in other Car No, LEG-2360 and returned on 9-10-1976 to Sahiwal.
' According to prosecution version on 6-10-1976 Ali Akbar P.W. Lambardar of Chak No,203/EB had seen Car No,KAQ-6446 abandoned near his village and on 7-10-1976 he reported about the same to the Police Station Gaggo. Muhammad Siddique S.I. (P.W.14) after recording the report Exh. P.M. In Roznamcha went to the spot and secured car vide memo. Exh.P.D.
4. On receiving information about the abandoned car, the complainant went to the Police Station Gaggo where Muhammad Siddique S.I., P.W. Recorded his statement (Exh. P.E.) on 9-10-1976 at 11-45 p.m. Which was sent to Police Station Arifwala whereon Manzoor Ahmad A.S.I. On 10-10-1976, drew up formal F.I.R. (Exh.P.O.)
5. The Investigating Officer then went to Chak No,143/EB and arrested Liaqat Ali accused from there on the same day. Thereafter, he sent for Maqsoodul Hassan Appellant through a constable and arrested him as well.
' On the same day both of the accused led him to a sugar-cane field in the area of Chak No,143/EB and pointed out the dead body of Muhammad Amin, lying there. He prepared injury statement of the deceased (Exh.P.P.) and inquest report (Exh.P.Q.) He dispatched the dead body under escort of a police constable to mortuary. Arifwala for post-mortem examination.He also secured blood- stained earth from the spot vide memo. (Exh.P.L.). On the same day the appellant led him to a distance of 18/20 karams from the place of the recovery of dead body of Amin and got recovered his blood stained clothes comprising shirt (P.6), vest (P.7), Shalwar (P.8) and Muflar (P.9) which were taken into possession vide memo. (Exh.P.J.). The Investigating Officer on searching his person recovered three keys with monogram which he secured vide memo. (Exh. P .F . ) .
' Similarly he recovered at the instance of Liaqat accused some other clothes and articles like driving licence, Radio licence receipt and chaddar which he secured vide memos. P.H, P.G. And P.K.
Respectively.
' On 21-10-1976, Maqsoodul Hassan, led him to a place in Square No,56 of Chak No,143/EB and got recovered blood-stained Chhuri (P.11), which he took into possession vide memo. (Exh. P.T). On 12- 3-1978 he arrested Noor Nabi accused as well.
' On 10-10-1976, Dr. Mushtaq Ahmad performed autopsy on the dead body of Amin and noticed two stab wounds penetrating into upper right side of the abdominal cavity and in the epigastrium two incise wounds; one on the lower left part of the abdomen and the other on the right lower side of front chest. He also found three incised wounds close to sternal margin on the middle of the chest and right forearm chopped off, with chopped off portion missing.
' The dead body gave foul smell and was eaten by maggots on thigh axilla, left hand and upper portion of chest. There are corresponding cuts on the shirt worn by the deceased. He found brain and membranes decomposed and the stomach perforated. The death in his opinion occurred due to shock and haemorrhage and injuries suffered in the abdomen which individually and collectively were sufficient to cause death in ordinary course of nature. The probable time elapsed between the receipt of injuries and death was half an hour and between death and post-mortem about five days.
' The Serologist vide his report (Exh. P.W.)found the clothes and chhuri allegedly recovered at the instance of the appellant stained with human blood, while the blood stains on earth taken from the spot disintegrated.
6. At the trial, the appellant pleaded not guilty and denied all the prosecution allegations against him. He professed innocence and stated that he was falsely involved in the case. He, however, called no evidence in defence.
7. The learned trial Judge, placing reliance on the prosecution version of the occurrence and the evidence on the record held the appellant guilty of the charges and as aforementioned convicted and sentenced him.
8. Learned counsel for the appellant, argued that circumstantial evidence led by the prosecution in this case was neither sufficient nor of the quality to maintain conviction of the appellant on charge entailing death penalty. The evidence of 'last seen' was not only interested, unreliable and descrepant but also suffered conscious improvements. The recovery of weapon of offence Churri (P.11) was not proved as the attesting witnesses did not appear in support thereof. There was no evidence of motive, the key and car, were not produced in Court. The recovery of blood-stained clothes was planted and not proved.
9. On the contrary learned counsel for the State opposed the appeal and supported appellant's conviction and sentences. He argued that the learned trial Judge rightly relied on the prosecution evidence particularly the "last seen evidence" to hold him guilty of the offence committed by him.
10. Undoubtedly the actual occurrence in this case was witnessed by none and the prosecution had to rely on the circumstantial evidence comprising "last seen evidence!', medical evidence, evidence of incriminating recoveries and the motive.
' The prosecution produced Sarfraz (P.W.9) and Mirza Muhammad Din (P.W.12) to prove that on 5- 10-1976 the deceased was lastly seen with the appellant and Liaqat Ali as he had gone with them in the car. Sarfraz P.W. Is real brother of the deceased and complainant in this case. Mirza Muhammad Din (P.W.12) is master and employer of the complainant and his deceased brother.
They worked as drivers of his private taxi cars. In his statement, at the trial the complainant reiterated his version given in the F.I.R. That on 5-10-1976 Muhammad Amin deceased had left taxi stand, Sahiwal in car with the appellant and Liaqat deceased. Mirza Muhammad Din P.W. 12 also corroborated his statement, but this evidence alone is not sufficient to connect the appellant with the commission of the crime. It is, therefore, necessary to examine if other evidence on the record corroborates this piece of evidence so as to connect the appellant with the commission of the offence.
' First of all we take up the evidence of recoveries: ' Sarfraz and Mirza Muhammad Din P.Ws. Stated that after the arrest of appellant and Liaqat deceased they led to the place of murder and on their pointing out the body of Amin was recovered. As the dead body was recovered on the joint pointing of the appellant and his co- accused this piece of evidence is inadmissible as against the appellant and was rightly discarded by the trial Judge as well. The next item of recovery was the blood-stained clothes of the appellant made on 10-10-1976 vide memo. Exh.P.J. In presence of Muhammad Mushtaq and Muhammad Sharif P.Ws. Both these witnesses were declared hostile as they did not support the prosecution version. Muhammad Sharif (P.W.5) did not state anything about the recovery of the blood-stained clothes, rather he stated that the blood-stained clothes of Amin deceased were recovered in his presence vide memo. (Exh. P.J.) which proved false on the record. He also stated that he had seen in moonlit night with the help of torch light the appellant and Liaqat deceased with the blood- stained clothes standing at a distance of five/ten Killas from Abadi of Chak No,143/EB. On his inquiry the appellant told him, that the bloodstains on his clothes were due to a goat slaughtered in the chak. This was improvement in his statement as he never stated so before the police and he was duly confronted with his previous statement Exh.D.C. Where it was not so recorded.
' Muhammad Mushtaq (P.W.11) did not identify the appellant. He also stated that the clothes taken into possession vide memo. (Exh.P.J.) were of Amin deceased and recovered at the instance of Liaqat deceased, which was wrong because clothes recovered vide memo. (Exh.P.J.) allegedly belonged to the appellant and not Muhammad Amin deceased. The other article of recovery made at the instance of the appellant was the key of Car No,6446 vide memo. (Exh.P.F.) witnessed by Muhammad Mushtaq and Muhammad Sharif (P.Ws.). Muhammad Mushtaq did not support it as he could not identify the appellant. This memo. Had no signature of the Investigating Officer nor the date on which the recovery was made. Moreover, the keys were not produced at the trial, therefore, it also did not advance the case of the prosecution.
' The other incriminating evidence was the weapon of offence i,e, blood-stained chhuri recovered at the instance of the appellant vide memo. (Exh.P.T.) in presence of Muhammad Akram and Sardar Khan. The prosecution did not produce these witnesses to prove the recovery of chhuri.
Admittedly they did not belong to Chak No,143/EB and were not produced presumably because they would not have supported the prosecution version. It is,therefore, clear that the evidence of recoveries collected by the prosecution against the appellant did not provide corroboration to the "last seen" evidence.
11. The prosecution with a view to prove that immediately after Muhammad Amin was done to death by the appellant and Liaqat deceased were seen at night standing near the car and having blood-stained clothes thereon, produced uhammad Sharif (P.W.10) and Muhammad Mushtaq (P.W.11.). As aforesaid both these witnesses did not support the prosecution version and were declared hostile. Their evidence is worthless, being unnatural and suffering from improvements and falsehood. The Investigating Officer did not take into possession the torch used by Sharif to identify the accused.
12. Furthermore, the prosecution led no evidence to prove motive for murder of Amin except Khushi Muhammad (P.W.2.) and Shafi (P.W.3) who stated that they heard Noor Nabi, acquitted accused, saying to Liaquat accused (now deceased) that he may arrange car for restoration of his abducted wife even if driver of the car had to.Be murdered. The motive set up by the prosecution is not only weak but unusual to believe that Muhammad Amin was murdered merely to use his car for restoration of an abducted woman. It is well-established that proof of motive to murder is not necessary for establishing guilt, due to 'commission of motiveless murders but once motive is set up by the prosecution burden lies on it to prove, failing which a shadow of doubt is cast on the entire prosecution version.
13. We have also noticed that evidence of Sarfraz P.W, the brother of the deceased and Muhammad Din P.W., his employer besides having natural leaning towards Muhammad Amin deceased also suffered from significant infirmities. Sarfraz P.W. Was not attesting witness of recovery memos. But became zealous to state at the trial that the recoveries were made in his presence and he signed the memos, prepared by the Investigating Officer. He stated that his driving licence remained in Car No, 6446 and he drove other car from Sahiwal to Lahore without licence; which is normally unusual. He admitted that the documents like registration, insurance of the car in question, were already with the Police Station Arifwala when the car was hired by the accused. He further admitted that he was working as taxi driver for a year, but knew nothing about the permit required for using private cars as taxis. He stated that on receiving information about the abandoned car, he went alone to the Police Station Gagoo and contradicted Muhammad Din P.W. On that account.
' Similarly Muhammad Din (P.W.12) stated that the recovery of dead body was made in his presence but his name does not appear in the recovery memo. He also stated that blood-stained clothes were recovered in his presence, but he was not cited as witness of recovery. He admitted that he did not see the appellant and Liaqat before hiring the car on 5-10-1976, as they were not known to him but added that Sarfraz P.W. Had told him that they were men of Noor Nabi although he did not say so in his statement recorded under section 161, Cr.P.C. He was not called upon to identify the appellant. He also did not state before the police that the accused had gone in Car No,6446 in his presence but stated so at the trial. He also wrongly denied to have stated before the police, that after many days he learnt about his car with police of Police Station Gagoo.
14. Last of all we have also observed that the Investigating Officer has also not conducted investigation fairly in this case. He did not cite recovery witnesses of Chhuri (P.11) in the calendar of witnesses, nor produced them at the trial. He did not care to take into possession the torth allegedly used by Sharif P.W. He also did not join witnesses of the locality from where the recoveries were effected nor collected evidence of motive and took no step to cause production of case property like car and the keys at the trial.
15. In our estimation, neither the "last seen" evidence nor the evidence of recoveries collected by the prosecution against the appellant, warranted his involvement in the commission of the crime, beyond reasonable doubt, so as to sustain conviction order of the appellant for offence entailing death sentence. The evidence led by the prosecution lacks material corroboration and does not inspire confidence. The mere fact that the complainant or for that matter Muhammad Din P.W., his employer had no animus against the appellant does not conclusively establish that they had spoken truth and even so, their evidence has to be relied without corroboration from other evidence.
16. As already observed, the present case rests only on circumstantial evidence and the accepted principle, in cases depending on such evidence, is that in order to justify the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused, and no hypothesis consistent with the innocence of the accused can be suggested. If, however, any reasonable hypothesis consistent with innocence of the accused can be inferred from the evidence on record, the case will have to be treated as of no evidence and the conviction set aside.
17. Applying this principle to the facts of the instant case, it can be safely said that when there is nothing on the record to connect the appellant, may be that the deceased was done to death by some body else, while on way back at night in the car. In this view of the matter, we are satisfied that the prosecution evidence on the record is certainly not of that quality, to exclude all hypothesis of appellant's innocence. We are, therefore, of the view, that the case against the appellant is not free from reasonable doubt. The benefit of which must go to him.
18. In the result, we allow the appeal, set aside the conviction and sentence passed on him and giving him benefit of doubt acquit him. The death sentence is not confirmed. We had already allowed this appeal, by our short order, dated 31-12-1982 and have now recorded reasons therefor.