' Muhammad Hasan (40) son of Ghulam Hasan, Sher Bahadur (17) son of Muhammad Hasan and Umar Draz (20) son of Gul Khan, residents of Chak No, 568/GB, were tried by the learned Additional Sessions Judge, Lyallpur (now Faisalabad), under section 302/34, P.P.C., on the allegations that on 19th August, 1972 at 7-30 p.m. They took away Zafarullah Khan deceased and committed his murder in the area of Chak No, 568/GB in furtherance of their common intention. By judgment dated 15th July, 1974 all of them were acquitted. Mst. Mehar Khatun mother of the deceased, filed this revision petition challenging the order of their acquittal. It has been admitted only with regard to Muhammad Hasan respondent.
2. The case was registered on 21st August, 1972 on the report of Haq Dad complainant (since dead) wherein he alleged that on 19th August, 1972 at 7-30 p.m. He was present in his house when Muhammad Hasan accused/respondent came there and had a talk with his son Zafarullah (deceased). Zafarullah told the complainant that he was going with Muhammad Hasan in order to guard the mango plantation. Zafarullah did not return during the night. Muhammad Khan and Dost Muhammad informed the complainant that they had seen Zafarullah and Muhammad Hasan going towards Muhammad Hanif and Fateh Khan who were standing on the road outside the village Abadi and on inquiry, Zafarullah had told them that he was going with Muhammad Hasan in order to keep watch on the mango plantation. The complainant searched for Zafarullah Khan deceased on 21st August 1972 but he could not be traced. The deceased was a friend of Muhammad Hasan accused but later on he developed illicit relations with his niece Mst. Sardaran over which aforesaid Muhammad Hasan and his relatives were seriously annoyed. In retaliation Muhammad Hanif, brother of Mst. Sardaran, her uncle Fateh Khan and her cousin Ghulam Muhammad outraged the modesty of Mst. Naziran, daughter of the complainant, and a case under section 354, P.P.C. Was registered against them. On 21st August, 1972 Ghulam Yasin informed the complainant that 7-8 days back he had enquired from Muhammad Hasan why he was keeping friendship with Zafarullah Khan who had illicit relations with his niece. Muhammad Hasan told him that there was some purpose behind it which will soon become known. In the F.I.R. It was alleged that Muhammad Hassan, Muhammad aanif and Fateh Khan had abducted Zafarullah Khan with intent that he may be murdered.
' Sher Muhammad P.W. Also saw Zafarullah Khan deceased in the company of Muhammad Hassan, Umar Draz and Sher Bahadur at 8-00 p.m. On the same night Muhammad Hassan, Umar Draz and Sher Bahadur accused met Sher Muhammad P.W. At the circumcision ceremony of the son of Azim Khan. Sher Bahadur accused had a pistol with him. When most of the participants had left, the accused persons took Sher Muhammad P.W. Aside and told him that they had strangulated Zafarullah Khan deceased and would kill him also if he informed any body having seen the deceased in their company.
' On 21st August, 1972 Muhammad Hasan accused made a confession before a Panchayat at the Dera of Majid Khan that he, Umar Draz and Sher Bahadur had strangulated Zafarullah Khan deceased as he had illicit relations with Mst. Lrshad, fiance of Sher Bahadur accused.
3. After recording the F.I.R., Muhammad Ayub, A .S.I. , Police Station Lundianwala, reached Chak No, 568/GB and partly investigated the case. Abdul Hakeem Sub-Inspector took over the investigation from him. He arrested Muhammad Hasan accused on the same day, i,e, 21st August, 1972. He made a disclosure that he could lead to the recovery of the dead body and consequently he got recovered dead body of Zafarullah Khan deceased from near the trunk of a Sheesham tree in Killa No, 12 of Square No,
22. The Sub-Inspector prepared the injury statement (Exh. P.G.) and inquest report (Exh. P.H.) of the dead body and despatched it to the mortuary for post-mortem examination. Umar Draz accused was arrested on 11th September, 1972. Before his arrest he produced ring (Exh. P.1) of the deceased which was taken into possession vide memo. Exh. P.B. Sher Bahadur accused was arrested on 13th October, 1972. After the investigation, the accused persons were challaned.
4. On 22nd August, 1972 Dr. Mumtaz Ahmad conducted the autopsy on the dead body of Zafarullah Khan deceased and found an Azarband tied around the neck at the level of thyroid cartilage. There was a grooved ligature mark about 3/4" wide around the neck. There were contusion marks on the different parts of the body. In the opinion of the doctor, death was due to asphyxia resulting from strangulation caused by neck-injury which was sufficient to cause death in the ordinary course of nature. The other injuries were simple, caused by blunt weapon.
5. There is no direct evidence of the murder. The prosecution relied on motive, evidence of last seen, extra-judicial confession, recovery of dead body at the instance of Muhammad Hasan accused respondent and recovery of ring from Umar Draz accused.
6. The accused pleaded not guilty to the charge and denied the prosecution allegations. No evidence was led in defence.
7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the evidence was interested and untrustworthy. He, therefore, acquitted the accused persons of the charge.
8. The learned counsel for the petitioner contended that mere relationship of the prosecution witnesses with the deceased was not sufficient to discard their evidence. He submitted that the extra-judicial confession made by Muhammad Hasan respondent, coupled with the last seen evidence and recovery of dead body at his instance, was sufficient for conviction. The learned counsel for Muhammad Hasan respondent, on the other hand, submitted that the finding of acquittal is based on evidence and the mere fact that a different view was also possible, is not a valid ground for interference with the order of acquittal.
9. Haq Dad complainant, Sher Muhammad (P.W.12), Muhammad Khan (P.W.7) and Dost Muhammad (P.W.8) claimed to have seen the deceased in the company of Muhammad Hasan respondent. Haq Dad died before the commencement of the trial and his statement in the Committing Court was transferred to the Sessions file under section 33 of the Evidence Act. He stated that about 9-3/4 months back Muhammad Hasan respondent came to his house and called out Zafarullah Khan deceased. The deceased accompanied him but did not return. On the following c morning he was informed by Muhammad Khan and Dost Muhammad P.Ws. That on the preceding evening they had seen the deceased going with Muhammad Hasan respondent. They further told him that they had also seen Fateh Khan and Muhammad Hanif standing at the Nukkar of the village Bahadur and Umar Draz, acquitted accused, were not named in llage Abadi. At this stage it need be mentioned that in the F.I.R. Any context. At the trial Muhammad Khan P.W. Stated that he saw Zafarullah Khan deceased and Muhammad Hasan respondent going towards Sher Bahadur and Umar Draz acquitted accused. It was the prosecution's own case that four months prior to the occurrence the deceased developed illicit relations with Mst. Sardaran sister's daughter of Muhammad Hasan respondent, over which aforesaid respondent and his relatives were seriously annoyed. In retaliation Muhammad Hanif, brother of Mst. Sardaran, her uncle Fateh Khan and another relative namely, Ghulam Muhammad outraged the modesty of Mat. Naziran, sister of the deceased and a case under section 354, P.P.C. Was registered against them. These facts lead to the irresistible conclusion that the parties were inimically disposed of towards each other and in that view of the matter it is unbelievable that the deceased would accompany Muhammad Hasan respondent all alone at evening time. His father Haq Dad, too, would not permit him to go with aforesaid respondent. Haq Dad, Sher Muhammad, Muhammad Khan and Dost Muhammad P.Ws.
Are closely related to the deceased. Their uncorroborated evidence that the deceased had accompanied Muhammad Hasan respondent and was last seen with him, cannot be accepted.
10. Evidence relating to extra-judicial confession was furnished by Sher Muhammad (P.W.12), Muhammad Khan (P.W.7), Dost Muhammad (P.W.8), Muhammad Yasin (P.W.9) and Sultan Khan (P.W.11). Sher Muhammad Q.P.W. Stated that one year and ten months back he saw Zafarullah deceased in the company of Muhammad Hasan, Umar Draz and Sher Bahadur accused. He enquired from them as to why they were standing there, upon which Muhammad Hasan respondent asked him to mind his own business. He further stated that on the same night he attended the circumcision ceremony of the son of Azim Khan. The accused persons also participated in that ceremony. Sher Bahadur accused had a pistol with him. The accused persons took him aside and told him that they had strangulated Zafarullah deceased to death. They threatened him that he would also meet the same fate if he told any body having seen the accused in their company. In cross-examination he stated that all the three accused had made a joint confession before him and before the arrival of the police he did not tell any body either about the confession of the accused or having seen the deceased in their company. This witness is very closely related to the deceased. His brother Muhammad Khan is married with aforementioned Mst.
Naziran, sister of the deceased. There was no reason for the accused to make a confession before him. It is very strange that there was a hue and cry in the village about the disappearance of Zafarullah deceased but he did not tell any body in the village that he had seen the deceased in the company of the accused. His evidence does not deserve any credence at all.
11. Muhammad Khan P.W.7, Dost Muhammad P.W.8, Muhammad Yasin P.W.9 and Sultan Khan P.W.11 stated that Muhammad Hasan respondent had made confession before a Panchayat at the Dera of Abdul Majid that he alongwith other accused had commitited the murder of Zafarullah deceased. The first mentioned three P.Ws. Stated that Muhammad Hasan respondent had stated that he and his co-accused had strangulated/ throttled Zafarullah deceased to death but Sultan Khan P.W. Gave out that Muhammad Hasan respondent did not tell them as to whether the deceased was killed by throttling or by strangulation with a rope/trouser-string. Dost Muhammad P.W. Stated that Majid Khan had threatened Muhammad Hasan respondent that he will be handed over to the police if he did not tell the truth. Sultan Khan P.W. On the other hand, stated that first of all Muhammad Hasan did not admit anything but after 15/20 minutes he made a confession without any threat. Muhammad Yasin P.W. Came up with the version that Majid Khan put the Holy Qura'n on the hands of Muhammad Hasan accused, upon which he confessed his guilt.
Earlier Sultan Khan P.W. Had accompanied Haq Dad P.W. To the police station. He returned to the Chak after the registration of the case and then joined the Panchayat at the Dera of Abdul Majid.
He was fully aware that the police was expected in the village very soon but strangely enough the aforementioned P.Ws. Who were closely related to the deceased did not apprehend Muhammad Hasan respondent when he made the confession before them. Muhammad Khan P.W. Is uncle of the deceased, Dost Muhammad is son of Muhammad Khan P.W. Muhammad Yasin P.W. Is the cousin of Saeed Khan P.W. Who is a cousin of the deceased. Sultan Khan P.W. Is married to the sister of the father of Muhammad Yasin P.W. While Mst. Anaran daughter of Sultan Khan is married to Muhammad Zaman, a cousin of the deceased. The confession was allegedly made at the Dera of Abdul Majid and many persons including him had participated but neither Abdul Majid nor any other unconnected person was cited as a prosecution witness. In the circumstances, the evidence relating to extra-judicial confession does not deserve any credence.
12. The next piece of evidence against Muhammad Hasan respondent is the recovery of dead body of Zafarullah deceased at his instance. This recovery is supported by Abdul Hanif (P.W.10) and Sultan Khan (P.W.11). Evidence of Sultan Khan regarding extra-judicial confession has already been rejected. Abdul Hanif P.W. Is also related to the deceased. He is real brother of Yasin P.W. He admitted that Ahmad Hayat Lambardar and Abdul Majid were present with the police when he joined the investigation but they were not asked by the police to attest the recovery memo. Of the dead body. Sultan Khan (P.W.11) also admitted that many persons including Ahmad Hayat Lambardar and Abdul Majid were present at the place of recovery. No independent or disinterested witness was, however, produced by the prosecution to support the alleged recovery of the dead body. The prosecution witnesses are interested and their evidence does not inspire confidence.
There is, therefore, no ground for interference with the order of acquittal and this petition is dismissed.