' Abdul Aziz, aged 55 years and Muhammad Iqbal, aged 19 years, were tried for having murdered Muhammad Aslam during the night 4th/5th of February, 1979, near Nala Plate, near village Quill Salah, at a distance of three miles from Police Station Cantt. Sialkot. The learned trial Judge vide judgment dated 13-7-1980 held both of them guilty under section 302/34, P.P.C. And sentenced each of them to suffer imprisonment for life, plus to pay a fine of Rs,5,000 each in default whereof to undergo simple imprisonment for three months. Whole of the fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased.
2. Abdul Aziz has filed Criminal Appeal No, 912 of 1980 while Muhammad Iqbal has filed Criminal Appeal No, 913 of 1980. As both the appeals arise from the same judgment, they are being disposed of together by one judgment.
3. F.I.R. (Exh.P.B./1) was registered at Police Station Cantt. Sialkot on 52-1979 at 3-15 p.m. By Aftab Hussain, M.H.C. (P.W.2), on receipt of statement (Exh.P.B.) of Muhammad Hussain (P.W.10), recorded by Ijaz Hussain, A.S.I. (P.W.11), at Clock Tower Chowk, Sialkot at 3 p.m. On the same day.
4. According-to the F.I.R., the complainant used to ply tonga. He had two sons, Muhammad Aslam and Muhammad Ashraf. Muhammad Aslam was Matriculate. As he was intending to go abroad, he, therefore, used to go to Sialkot to learn welding. Ten/twelve days prior to the occurrence, Muhammad Aslam had started working with Aziz Arain to manufacture footballs. He used to come late in the night. On the evening prior to the day of registration of F.I.R., he (complainant) returned home after plying tonga at 6/7 p.m. He inquired from his wife about Muhammad Aslam, who told that he had gone out after taking meals. The complainant waited for him till late but Aslam did not return. In the morning, he went to the city in search of Muhammad Aslam. He was informed by his sister's son Muhammad Ashraf Gulla at 2 p.m. That Muhammad Aslam has been murdered and hisidead body was lying near Nala Plate. He stated that for the time being he had no slispicion against anyone. He also stated that he was not feeling in proper senses because of being perturbed and that when he felt fit he would try to find out as to who were the murderers of his son and would inform the police.
5. Ijaz Hussain, A.S.I., after recording Exh.P.B., proceeded to the spot. He examined the dead body of Aslam and prepared inquest report (Exh.P.G.) as well as injury statement (Exh.P.H.) and despatched the dead body for post-mortem examination. Blood-stained earth was collected by him from the spot. Hair of the deceased lying at the spot were also taken by him into possession by sealing the same into separate sealed parcels. Supplementary statement of Muhammad Hussain complainant was recorded by him on 8-12-1979. Both the accused were produced before him on 11-2-1979 by Muhammad Siddique (P.W.8) and Fakhar Din (P.W.9).
' On 21-2-1979, Muhammad Iqbal led to the recovery of Danda (P.7) from his cattle-shed, which was taken into possession vide memo. Exh.P.J. Abdul Aziz, on the same day, had led to the recovery of blood-stained hatchet (P.8) from his cattle-shed, which was taken into possession vide memo.
Exh.P.K.
' After completion of necessary investigation challan was submitted to Court.
6. At the trial statements of thirteen prosecution witnesses were recorded.
' Dr. Muhammad Younas Chughtai, who had performed the autopsy on the dead body of Muhammad Aslam was examined as P.W.1. He had noted 19 incised wounds on different parts of the body of the deceased apart from a contusion on the epigastrium.
' On internal examination, he had found scalp, skull, membranes and brain cut beneath injuries Nos.
1 to 3 and 6. Right scapula bone was cut as a result of injury No,7. Left scapula bone was found cut as a result of injury No,10. Injuries Nos. 9 (caused by a blunt weapon) and 11. To 19 (caused by a sharp-edged weapon) were declared simple while injuries Nos. 1 to 7 and 10 (caused by sharp- edged weapon) were declared grievous and dangerous to life.
' Death was opined to have resulted due to shock and haemorrhage, caused by injuries Nos. 1 to 7 and 10, which have been defined as follows:-
(1) Incised wound 2" x 1/2" on the left frontal bone. The underlying bone was cut.
(2) Incised wound, 4" x 1" on the left parietal region of head.
(3) Two incised wounds parallel to each other, each of 7" x 1", transverse in direction, on the left perieto occipital region of head, 1-1/2" below injury No,2, underlying bones were cut, brain matter was oozing out of the wound.
(4) Incised wound, 5" x 1" on the left cheek extending upto the middle of pinna of left ear, transverse in direction. The underlying bone was cut.
(5) Incised wound, 3-1/2" x 3/4" on the left cheek, transverse in direction, extending upto the left angle of mouth. The underlying bone (lower jaw) was cut.
(6) Incised wound, 3" x 3/4" on the left occipital region, the underlying bone was cut.
' Incised wound, 6" x 2" on the hack of right shoulder over the right scapula. Underlying bone was cut.
(10) Incised wound, 2-1/2" x 3/4" on the back of left upper chest over the left scapula.
' During cross-examination, he stated that injury No,9 could have resulted due to fist blow or fall on a brickbat. He denied the suggestion that the dimensions of the injuries showed that they would have been caused by four different kinds of weapons, although he did not rule out such possibility.
7. Ghulam Muhammad, in whose presence blood-stained earth and hair were taken into possession from the spot, by the A.S.I., while appearing as P.W.5 verified the factum of recoveries from the spot. His statement in this regard has been corroborated by Muhammad Siddique (P.W.8) and Ijaz Hussain, A.S.I.
8. Muhammad Din (P.W.7) deposed about having seen Aslam deceased in the company of Abdul Aziz near the church going towards village Quill Salah at 7-30 p.m. On the evening previous to the day of murder. He stated that Muhammad Sarwar P.W. Was also with him at that time. Sarwar, according to him, had gone to Mascat (State) and was not available. During cross-examination, he stated that deceased was his real maternal-nephew. He stated that he did not see as to from which direction the deceased and Aziz were coming. He expressed ignorance about the connection of Aslam with Aziz. He added that he had not inquired from them as to where they were going. He explained that he had seen them from a distance of 10/15 Karams and so had not talked to them. In answer to another question, he stated that on learning about the murder of Aslam, he had gone to the spot but had not made any statement before the police. He stated that he had appeared before the police four/five days after the occurrence. Although he added that Aziz and Iqbal accused had been arrested by that time, but in the next sentence he stated that they were arrested on the next day of his appearance before the police. He denied the suggestion that Sarwar was living in the village and he was not produced as he had refused to support the prosecution case.
9. Muhammad Siddique (P.W.8) and Fakhar Din (P.W.9) stated that Iqbal and Aziz accused had come to them at the bungalow of Ch. Iftikhar Ahmad and there Iqbal had made a confession that he alongwith Aziz had murdered Aslam. He stated that he was engaged to Mst. Sajida daughter of Aziz and Aslam who was working with Aziz had cultivated illicit relations with her; villagers generally came to know about this and, therefore, they decided two days before the occurrence to murder him. According to him, he alongwith Aziz, who was armed with a hatchet, went towards Nala and selected a trench to murder Aslam. Both of them stated that Aziz thereafter brought Aslam to the spot, where Aslam was asked to enter the trench and to see that his sister's Shalwar was lying there. They told him that when he identified the Shalwar of his sister they will tell him who is her paramour. He further stated that when Aslam tried to come out of the trench, he was given blows by Aziz with Kulhari, which resulted in his death. He also stated that he had also given a blow with the Danda to the deceased.
' Both these witnesses had made statements before the A.S.I. On 11-2-1979, the day, on which according to them, they had produced the accused before the A.S.I. During cross-examination they deposed that apart from them, there were five other persons including Iftikhar and Abdul Ghani, Lambardars. They stated that Ch. Iftikhar, owner of the bungalow was also there.
' Muhammad Siddique (P.W.8) stated that his statement was recorded by the A.S.I. At the bungalow of Ch. Iftikhar while (P.W.9) stated that he had made the statement to the A.S.I. In a grassy plot. As against the statements of these witnesses, the A.S.I. (P.W.11) stated that he had recorded the statements of these witnesses in a vacant plot on the road side.
' P.W.8 during cross-examination stated that on the day the dead body of the deceased was found many relatives of the deceased had gathered there including Muhammad Din P.W., maternal- uncle of the deceased. He stated that the A.S.I. Had inquired from each of the persons present there if they knew anything about the occurrence.
10. Muhammad Hussain, father of the deceased, who had lodged the F.I.R. Appeared as P.W.10. After narrating the facts given by him in the F.I.R., he also added that he had come to know that Aslam had developed illicit connections with Mst. Sajida, daughter of Aziz, who was engaged to Iqbal and that Iqbal accused had given a beating also to Aslam deceased 3/4 days prior to the occurrence.
He denied the suggestion that Aslam deceased was working with Brig. Azmat Hayat, as a tractor driver and was not working with Aziz for manufacturing footballs. The statement made by this witness about illicit intimacy of the deceased with the daughter of Aziz, on confrontation was not found to have been stated in the statement (Exh.P.B.).
11. Ijaz Hussain, A.S.I., who had recorded the statement (Exh.P.B.) of the complainant and had investigated the case appeared as P.W.11. He stated about having inspected the spot and of having taken into possession blood-stained earth and hair from the place of occurrence. He also stated that he had arrested the accused on 11-2-1979 when they were produced by Muhammad Siddique and Fakhar Din. He also gave the details of Iqbal having led to the recovery of Danda and Aziz having led to the recovery of hatchet and of the same having been taken into possession by him.
During cross-examination he admitted that the place of occurrence was in the land which was on lease with Brig. Azmat Hayat and that the same was being cultivated by his employees. He denied the suggestion that the deceased was serving as driver of the tractor with Brig. Azmat Hayat during the days of occurrence. In answer to another question, he stated that he did not remember if he had associated the employees of Brig. Azmat Hayat in the investigation. He refused to refresh his memory on this point. He denied the suggestion that it had transpired during investigation that Aslam, in fact, was murdered by the employees of Brig. Azmat Hayat. He stated that Shalwar (P.5) was recovered from within the trench while string (Azarband) of Shalwar (P.6) was taken into possession from the place one Karam away from the trench. He admitted that he had not sent-- the hair, taken into possession from the spot, for comparison. He also admitted that he had not collected any evidence about illicit intimacy of Mst. Sajida with Aslam deceased. He conceded that he had not recorded the statements of Abdul Ghani and Iftikhar Ahmad, Lambardars, Rehmat Ali and Ali Muhammad about the extra-judicial confession said to have been made before the witnesses in their presence.
' Statements of other witnesses more or less are of a formal nature.
12. Both the appellants during statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Both of them denied that Mst. Sajida was engaged to Iqbal accused. Aziz denied that Aslam used to work with him. They denied that any weapon was recovered at their instance. They denied that they had made any extra-judicial confession before anybody.
13. There is no ocular account in this case. The F.I.R., which was lodged by the father of the deceased, does not contain any facts connecting the appellants with the crime. In fact, the complainant stated therein that he had no suspicion even, against any.
14. The prosecution case rests on the circumstantial evidence, which consists of motive, evidence of last seen, evidence of extra-judicial confession, evidence of recovery of weapons and the medical evidence.
15. The complainant while making statement at the trial made improvements in the statement by adding that he had come to know that the deceased had developed illicit relations with Mst. Sajida daughter of Aziz and that she was engaged to Iqbal.
' Apart from the fact that this was not found to have been stated by him in the F.I.R., the other aspect is that no other witness was examined in support of the statement made by him. The witnesses who stated this fact apart from the B complainant are P.Ws. 8 and 9, who deposed about extra-judicial confession said to have been made by the accused before them. Even they did not profess their own knowledge. According to them, this fact was also told to them by the appellants while making confession.
' The two appellants while making statements under section 342, Cr.P.C. Denied of any such thing.
They also denied that Mst. Sajida had been engaged to Iqbal. The Investigating Officer had not collected any evidence in this regard. In the circumstances, the evidence of the motive for the occurrence, in the form of illicit intimacy of the deceased with Mst. Sajida, appears to be an afterthought. The same is, therefore, excluded from consideration.
16. The only witness, who claimed to have seen the deceased last in the company of Aziz appellant, on the evening, during the night of which the deceased was murdered, is Muhammad Din (P.W.7).
He is maternal-uncle of the deceased. His statement does not inspire confidence. He made statement in this regard before the police on 10-2-1979. It is on record that he had come to know about the murder of Aslam on the very day his dead body was found. In fact, P.W.8 specifically stated during cross-examination that he along with other relatives had come to the spot where the dead body was lying and that the A.S.I. Had inquired from all the relatives present there if any of them knew anything about the occurrence. Had he seen the deceased last in the company of Aziz shortly before the occurrence, he would not have withheld this information till 102-1979. During cross-examination, he made an incongrous statement by stating in the same breath that when he made statement, the accused had also been arrested and that the accused were arrested the day following his statement was recorded. He is related to the deceased and his interest is obvious. His statement for the reasons noted above cannot he relied upon for sustaining conviction.
17. According to the prosecution, blood-stained hatchet was recovered at the instance of Aziz appellant while Danda was recovered at the instance of Iqbal appellant. The only witness who has verified the factum of recoveries from the F appellant is Ijaz Hussain, A.S.I. The two witnesses from public, who had attested the recoveries, were not produced at the trial. Although it is not illegal to place reliance on the testimony of a police witness alone for believing the factum of recovery but in the circumstances of this case reliance cannot be placed on the statement of only police official, as his performance in the matter of investigation does not appear to be above board. In that he not only failed to record the statements of the other respectable persons before whom the accused are said to have made extra-judicial confession, he also failed to collect evidence in support of the motive set up by the prosecution. He expressed inability to say whether he had joined the employees of Brig. Azmat Hayat as suspects in the case and at the same time refused to refresh his memory by examining the police file. In the circumstances, no reliance can be placed on the uncorroborated statement of this witness regarding the alleged recoveries.
18. The evidence of extra-judicial confession said to have been made by the accused before P.Ws.
8 and 9 also does not inspire confidence. It is the case of both of them that Iqbal had made the statement before them by giving all details while Aziz had concurred in that. Iqbal, according to them, had confessed that he was armed with a Danda at the time of occurrence. Out of 20 injuries found on the body of the deceased, there was only one blunt weapon injury, defined as contusion, regarding which the doctor during cross-examination stated that it could be the result of fist blow or fall on the brickbat with rounded surface. According to the medical examination, therefore, the part played by Iqbal in causing the death of the deceased appears to be insignificant.
' The evidence of extra-judicial confession even otherwise appears to be highly improbable and unbelievable. In that, it has been admitted by both the witnesses that the two accused had come to the house of Ch. Iftikhar and made statement there, in the presence of Iftikhar and Abdul Ghani, Lambardars, Iftikhar, owner of the house, Rchmat Ali, Ahmad and few others. If the appellants had made statement before all of them, the important persons, who should have been picked up as witnesses would have been Ch. Iftikhar, owner of the bungalow and the two Lambardars. Apart from that, both the witnesses had made discrepant statements. In that P.W.8 stated that his statement was recorded by the A.S.I. At the bungalow of Ch. Iftikhar while P.W.9 stated that his statement was recorded by the A.S.I. In the grassy plot near Clock Tower, where they had met him when they were going to produce the accused before him. According to him, the A.S.I. Had recorded the statements while sitting in the grassy plot. The A.S.I. On the other hand stated that he had recorded the statements of these witnesses in a vacant plot on the roadside. The failure of the A.S.I. In not having made inquiries from the persons other than two witnesses before whom extrajudicial confession was alleged to have been made by the accused, even though they included respectables like Lambardars, also casts shadows of doubts on the veracity of evidence of extra-judicial confession. The two witnesses also stated categorically during cross-examination that neither they nor anyone else on their behalf extended any promise to help the accused in case they made statements. In the circumstances, the evidence of extra-judicial confession does not inspire confidence and conviction, therefore, cannot be maintained on the strength of their statements.
' There is yet another important aspect, and that is, that the deceased was found lying murdered in the trench without trousers. His Shalwar and string (Azarband), according to the Investigating Officer, were recovered from different places. The Shalwar was recovered from the spot and string was recovered from other place. The explanation given at the trial was that the string of the Shalwar was cut on a blow given by Aziz at the back of the deceased as a result of which the Shalwar had fallen down. If the Shalwar had fallen as a result of the cutting of string, the string would not have come out, it would have remained in the Shalwar though in two pieces. The Shalwar would have fallen in the trench because the deceased was given injuries there. But according to P.W.6, the Shalwar was taken into possession from a field where crop was grown. How could Shalwar be lying there? There is nothing on record to explain this aspect of the case. The statement made by the A.S.I., during cross-examination, that he had taken into possession Shalwar from within the trench and the Azarbad from a place one Karam from the trench is also incongruent. How could the string be lying away from the Shalwar and out of trench. The only case that can be made is that someone had brought out the Azarhand from the Shalwar and thrown it at a different place, but there is not only no evidence in that regard, but also there is no plausible explanation even.
19. Having examined threadbare the evidence of the prosecution on record, doubts have arisen in my mind about the involvement of the appellants in the case. The appeals filed by them are, therefore, allowed and they are acquitted by way of grant of benefit of doubt. The appellants, who are on bail, shall be discharged of their bail bonds.