RIAZ AHMAD, J.--The appellants Muhammad Afzal aged 22 years and Abdul Jabbar aged 24 years were tried by the learned Sessions Judge, Gujranwala on a charge under section 302 read with section 34 of the Pakistan Penal Code for having committed the murder of one Qari Muhammad Iqbal and also on a charge under section 201 of the Pakistan Penal Code.
2. Vide judgment dated 12th of June, 1985, the learned Sessions Judge, found both the appellants guiIty on the aforesaid charges. Appellant Abdul Jabbar was convicted under section 302 read with section 34 of the Pakistan Penal Code and was sentenced to death and to pay a fine of Rs.5,000/-, or in defauIt thereof, to suffer rigorous imprisonment for a term of one year. Appellant Muhammad Afzal was convicted on the same charge and was sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- or in defauIt thereof, to suffer rigorous imprisonment for a term of one year.
Under section 544-A Cr.P.C, both the appellants were directed to pay Rs.20,000/- each as compensation to the legal heirs of the deceased or in defauIt thereof, to suffer rigorous imprisonment for a term of six months each. In defauIt of payment of fine and compensation, the sentences were ordered to run consecutively. As far as the charge under section 201 P.P.C, was concerned, both the appellants were acquitted of the said charge.
3. Aggrieved by their convictions, both the appellants have filed two separate appeals (Criminal Appeal Nos. 525 and 570 of 1985) while the complainant Qari Muhammad Siddique has filed a criminal revision (No.550 of 1985) praying that the sentence of life imprisonment awarded to Muhammad Afzal be enhanced to death, while the case has also been referred to us under section 374 Cr.P.C. This judgment shall dispose of both the appeals, the revision and the Reference.
4. The prosecution case in brief is that Qari Muhammad Siddique, PW 9, was a teacher in Madrassa Zia-ul-Quran, his brother Hafiz Muhammad Iqbal aged 25 years was a Khatib in Jamia Masjid Ahle- Hadis Eminabad. The deceased Hafiz Muhammad Iqbal employed the appellant Abdul Jabbar as his Assistant.
The appelant worked for a period of two months in the said capacity but on account of his conduct adversely effecting the students, his services were terminated. After his removal from service, appellant Abdul Jabbar started the work of repairing watches in the main bazar, Eminabad.
Appellant Abdul Jabbar was not expert in the repair of watches and, therefore, he was not returning watches to the owners, though, he received the repair charges in advance. He had to return about 30 watches to their owners. On 10-7-1984 at about 10.30 a.m the appellant Muhammad Afzal took the deceased Hafiz Muhammad Iqbal with him for proceeding to Samundari in the presence of Mushtaq Ahmed and Muhammad Yaqoob, PW 10. On the enquiry made by Mushtaq Ahmed and Muhammad Yaqoob, PW 10, the appellant Muhammad Afzal told them that he and the deceased were going to meet appellant Abdul Jabbar to arrange the return of watches owned by different owners and also to bring about a reconciliation between the appellant Abdul Jabbar and the deceased Hafiz Muhammad Iqbal.
Thereafter, the whereabouts of the deceased Hafiz Muhammad Iqbal were not known. Qari Muhammad Siddique, Complainant, the real brother of the deceased, suspected that appellant Abdul Jabbar and Muhammad Afzal might have murdered him, on account of the grudge nursed out of the dismissal of Abdul Jabbar appellant. The complainant thus approached S.S.P., Gujranwala, who sent him to the CIA Staff and the complainant thus made a statement Ex.P.G.
Which was sent to Police Station Kamoke for registration of a case. Accordingly, on 23.7.84 at 10.00 a.m., on the basis of the statement Ex.P.G., the formal FIR Ex. P.D. Was drawn by Muhammad Hussain, ASI, P.W.4.
5. On 20.7.1984, PW 7, Gulsher Khan, ASI, Police Station, Warburton was present at the bridge of Rajbah with two constables at 11.30 a.m. He noticed both the appellants coming from the side of the village Baghiari, but on seeing the police party, they took to their heels which raised doubts and thus the police party chased and caught the appellants. On interrogation, they did not disclose their correct names but after sometimes disclosed their correct names. ASI Gulsher arrested both the appellants under sections 55/109 of the Cr.P.C. Their arrest was mentioned in the daily diary of the police station, a copy of which was brought on the record as Ex.P.E and a Kalandra Ex.P.F. Under sections 55/109 Cr.P.C, was drawn against both the appellants. The appellants on further interrogation gave clue about the murder of Hafiz Muhammad Iqbal deceased and thus Warburton Police Station handed over the appellants to the Police Station Kamoke, where they were required in connection with the murder of Hafiz Muhammad Iqbal. On 24th of July,1984, both the appellants made a statement before the investigating officer Muhammad Ismail ASI, PW 15, that they could lead to the recovery of the deadbody of Hafiz Muhammad Iqbal, thus, both the appellants led the police and got recovered skeleton from Sarkandas, where the bones of human body were lying scattered in the area of two to three marlas, the same were taken into possession vide memo Ex.P.M. Blood-stained earth was also collected from the said spot vide memo Exh.P.R.
Hairs of the deceased P.45 were also taken into possession vide memo Ex.P.N. And ring P.3 with inscription of the name of the deceased was also recovered from the spot and taken into possession vide memo Ex.PQ. Azar band P.4 was also taken into possession from the spot vide memo Ex.P.O These recoveries were attested by Miraj Din PW 13 and Abdul Sattar (not produced) besides the investigating officer Muhammad Ismail, ASI, PW 13. To identify the ring P.3, the prosecution produced Muhammad Sharif, PW 12, a Gold Smith, who disclosed that he had made the ring P.3 for Hafiz Muhammad Iqbal, deceased, he identified the said ring vide Fard Shanakhat Ex.P.H.
6. On 26.7.1984, appellant Muhammad Afzal while in police custody got recovered articles belonging to the deceased. At the pointation of Muhammad Afzal appellant, Kurta P.l, Shilwar P.2, handkerchief P.5, diary P.6, hand bag P.7, badge P.8, two keys P.9 and P.10, Plastic ring P.11, three indentity cards P.12 to P.14, out of which, two identity cards were of the mother and father of the deceased while the third one was of the appellant Abdul Jabbar and a cap P.15 belonging to the deceased were got recovered from a Bharola lying in the house of the appellant Muhammad Afzal.
These articles were taken into possession vide memo Exh.P.L, attested by Muhammad Sharif PW 12, vice Chairman of Town Committee, Eminabad and Muhammad Yaqoob, PW 10, and Amjad Ali (not produced) besides the investigating officer Muhammad Ismail, ASI, PW 15. On 31.7.1984, appellant Abdul Jabbar led to the recovery of 29 watches P.16 to P.44 which were taken into possession vide memo Ex.P.K, attested by Amanat Ali, PW 11 and Bashir Ahmed (not produced) besides the investigating officer Muhammad Ismail, ASI, PW 15.7. Fifty-nine bones of human skeleton got recovered from the scene of occurrence at the instance of the appellants were sent to Dr. Ghulam Rasool.PW 2,who forwarded these bones to M.S.,DHQ,Hospital,Faisalabad,for expert opinion. PW 1, Dr. Mansoob Ahmed Khan, Associate Professor, Punjab Medical College, Faisalabad, examined the bones and stated that the cause of death cannot be ascertained nor time of death can be assessed. In cross-examination, however, he stated that these could be the bones of a person aged 25 to 50 years.
8. To prove its case at the trial, the prosecution placed reliance upon four pieces of evidence namely motive,last seen, recovery and the medical evidence. When examined under section 342 Cr.P.C., both the appellants denied the charge. Appellant Abdul Jabbar stated that he had been teaching for four months in the Madrassa run by the Anjuman and had not been paid anything for the same and that he had informed this fact to the Kamoke Police Station and thus, on account of his information to the police, he had been falsely implicated on account of enmity. Appellant Muhammad Afzal stated that the police had fabricated a false case against him only to show its efficiency under the pressure of Jamiat Ahle-Hadith, Eminabad. Both the appellants were also examined under section 340(2) Cr.P.C., and they repeated their statements made under Section 342 Cr.P.C.
9. With the assistance of the learned counsel for the appellants, State and the complainant, we have carefully gone through the record and we have also heard the various contentions raised by the learned counsel.
10. The learned counsel for the appellants contended before us that the entire case was fabricated one and the appellants had been involved only due to suspicion. It was further contended that there was inordinate delay in lodging the FIR and it was nothing but hearsay. The learned counsel for the appellants also argued that the motive in this case was too feeble to believe that on account of ousting from service, appellant Abdul Jabbar killed Hafiz Muhammad Iqbal, deceased, in connivance with his co-accused Muhammad Afzal. It was also contended that the evidence as to the last see, consisted of interested testimony and, therefore, the same had to be discarded. It was also strenuously argued that the evidence as to the recovery was unworthy of credit and the witnesses were tutored, arranged by Anjuman Ahle-Hadith and, therefore, no reliance could be placed upon such testimony.
11. We would first take up the motive as set up by the prosecution in this case. A perusal of the F.I.R, reveals that the deceased Hafiz Muhammad Iqbal had employed the appellant Abdul Jabbar as his Assistant in the mosque but on account of the conduct of the appellant, the deceased had terminated his services. The second part of the motive as disclosed in the F.I.R, is that the appellant Abdul Jabbar, though, not knowing the job of repairing watches had received repair charges in advance from at least 30 watch owners and had not returned the watches to their owners. The FIR further shows that the deceased was trying to get back the watches for their delivery to their owners and on account of these two facts, Abdul Jabbar appellant was stated to have been annoyed with the deceased. To prove the first part of the motive, the prosecution placed reliance upon the statement of Muhammad Yaqoob, PW
10. He has fully supported the prosecution in this behalf. It may be stated here that he is an independent witness and is not related to the deceased and has no any animosity with any of the appellants and thus, there is no reason to disbelieve his testimony. Similarly, Pw 9, Qari Muhammad Siddique, the first informal,also supported both the parts of the motive as narrated in the F.I.R. It is further apt to mention that Abdul Jabbar appellant in his statement recorded under section 342 Cr.P.C, said that he had been teaching the pupils in the mosque for a period of four months, but he was paid nothing for the services, with regard to which, he lodged a report with the Kamoke Police.
The statement of Qari Muhammad Siddique,PW-9,and Muhammad Yaqoob, PW 10, read with the statement of Abdul Jabbar, appellant, leaves no room to doubt, that the motive as set up by the prosecution stands proved. As far as the second part of the motive is concerned, the learned trial Judge disbelieved the same but we are of the view, that cogent evidence exists on the record to believe it. The learned trial Judge lost sight of the fact that 29 watches were recovered at the instance of the appellant Abdul Jabbar. Obviously, such a number of watches could not have been planted and, therefore, we are of the view, that this recovery also strengthens the second part of the motive. The deceased Hafiz Muhammad Iqbal would have been interested to get the watches returned to their owners because Abdul Jabbar, appellant, had been his Assistant in the village mosque and obviously, the watch owners might have been complained to him, that is why, he was endeavouring for the return of the watches. We are, therefore, convinced that the motive as set up by the prosecution stands proved on the record.
12. Adverting to the last seen evidence in this case, the prosecution has adduced evidence concerning two occasions, when the deceased was seen with the appellant. Firstly when Muhammad Afzal,appellant, had taken Hafiz Muhammad Iqbal, deceased from Eminabad to Samundari and the second occasion is, when the deceased was seen along with the appellants at the canal bank near the place of occurrence. As far as the first part is concerned, the prosecution placed reliance upon the statement of Muhammad Yaqoob, PW 10, who deposed that on 10th of July, 1984 at about 10 a.m. In the morning, the deceased Hafiz Muhammad Iqbal accompanied by the appellant Muhammad Afzal came to his shop, and on enquiry, the appellant told him that he and the deceased were both proceeding to the village of appellant Abdul Jabbar near Samundari.
On the second occasion, it was Abdul Mannan Tahir, PW 8, who saw the deceased in the company of the appellants near the canal bank and on enquiry, he was informed that they had come to attend the congregation.
We have examined the inherent worth of the statement of these two witnesses. Their statements inspire confidence and none of the two witnesses had any motive to depose falsely against the appellants on a capital charge.In fact,Abdul Mannan Tahir, PW 8,was coming from his village to Gujranwala and got down from the bus near the bypass at about 6.30 p.m. And he was standing to board another bus, when one Qari Muhammad Bashir also reached there and they both came to canal bank and saw the deceased in the company of Abdul Jabbar and Muhammad Afzal appellants. The testimony of Abdul Mannan Tahir PW 8, was criticized by the learned counsel for the appellants, who has contended that he was a chance witness and secondly, he was a friend of the deceased, therefore, his statement should not have been relied upon. We are of the view that both these objections are untenable. The witness belonged to Tehsil Samundari and knew the deceased and was coming to Gujranwala which is not unnatural. Hence, we are convinced that Abdul Mannan Tahir, PW 8, was a truthful witness. As far as Muhammad Yaqoob,PW 10, is concerned, we find his testimony above board and despite probing cross-examination, the defence failed to elicit anything to show that the witness was a liar. In this view of the matter, we are convinced that the last seen evidence in this case is worthy of belief.
13. We have examined the recovery evidence in this case. The first part of the recovery evidence consists of the recovery of bones of human body, blood-stained earth, hairs, a ring and Azar band of the deceased. To support the recovery, the prosecution produced Meraj Din, PW 13, besides the investigating officer. We have examined the statement of Meraj Din, PW 13 and his statement also rings true. As far as the ring P.3 is concerned, Muhammad Sharif, PW 12, identified the said ring and stated that he had manufactured the same for the deceased with the inscription of his name on it.
He had also signed a Fard Shanakhat with-regard to this ring. After- careful consideration, we are of the view that the recovery of golden ring from the spot seems to be exaggeration on the part of the prosecution. Had there in fact been a ring of gold in the finger of the deceased, the same would not have been left at the spot but would have been carried by the appellants. In our view,except the recovery of ring, the rest of the articles were, in fact, recovered from the spot.
The second part of the recovery evidence consists of the recovery of the last worn clothes and articles belonging to the deceased at the instance of Muhammad Afzal appellant from his house.
To support this recovery, Muhammad Sharif, PW 12, entered the witness box and deposed that he had joined the investigation in his case and in his presence at the instance of Muhammad Afzal, appellant, Kurta P.l, Shalwar P.2, handkerchief P.5, diary P.6, hand bag P.7, badge P.8, two keys P.9 and P.10 Plastic ring P.11, along with three identity cards P.12 to P.H and a cap belonged to the deceased were got recovered. To support this recovery, the prosecution also placed reliance upon the statement of Qari Muhammad Siddique, PW 9, the complainant. He also identified the clothes of his deceased brother. The clothes were also identified by Muhammad Shafi, PW.6, a washerman, who stated that he used to wash the clothes of the deceased. He also identified his mark on the clothes of the deceased. The statements of the recovery witnesses are not open to doubt and thus, we are convinced that Muhammad Afzal, appellant, while in police custody, got these articles and clothes recovered.
There is yet the most important part of the recovery evidence which is third limb of the recovery consisting of the watches. Muhammad Ismail, ASI, PW 15, the investigating officer, stated that the appellant Abdul Jabbar got watches P.16 to P.44 recovered.To support this recovery,the prosecution produced Amanat Ali, PW 11, his statement is also convincing and rings true, and as observed earlier, we are n6t prepared to believe that the recovery of these watches was fake or the same was planted.14. Having believed the last seen evidence, the motive and the recovery,the crucial question arising for determination is whether,in fact,the appellants had committed the murder of the deceased.After anxious consideration, our answer to this question is in negative because in such like cases, depending upon the appraisal of circumstantial evidence to convict a person on capital charge, there must be some more evidence to connect the appellants with the commission of the murder. Undoubtedly, no such enmity exists to conclusively believe that deceased was killed by the appellants.
Accordingly, in the light of the evidence on the record, we hold that the last seen evidence and the recovery coupled with the motive is only a pointer towards the abduction of the deceased and not the murder and, therefore, the appellants would only be guiIty for the commission of the offence under section 364 of the Pakistan Penal Code. In this view of the matter, we set aside the conviction and sentences of the appellants under section 302 of the Pakistan Penal Code and instead, we convicf them under section 364 of the Pakistan Penal Code.
15. ResuItantly, the death sentence awarded to the appellant Abdul Jabbar is not confirmed but both the appellants now stand convicted under section 364 of the Pakistan Penal Code and accordingly, they shall suffer rigorous imprisonment for a term of ten years each and to pay a line of Rs. 5,000/- each. Fine, if recovered, shall be paid as compensation to the heirs of the deceased, in defauIt of the payment of fine, the appellants shall suffer rigorous imprisonment for a term of one year R.I. Each. In the peculiar circumstances of the case, we confer benefit of section 382 (b)
Cr.P.C, on the appellants.
16. In so far as the Criminal Revision filed by Qari Muhammad Siddique praying that the sentence of life imprisonment awarded to Muhammad Afzal,appellant,be enhanced to death is concerned, the actual killing of the deceased by either of the appellants has not been proved on the record and thus the prosecution has failed to even establish its case under section 302 P.P.C. The Revision Petition is, therfore, dismissed.