MUHAMMAD RAFIQ TARAR, J.-- A.I Muhammad (28) son of Rehmat Ullah, case Gujjar, resident of Sohawa Bolani, Police Station Kuthiala Sheikhan, was tried by the Additional Sessions Judge, Gujrat on the allegations that on the night between 6th and 7th January, 1.982 he trespassed into the shop of Muhammad Asghar deceased and strangulated him to death. By judgment dated 22-11-1982, he was convicted under sections 302 and 457, P.P.C. And sentenced to imprisonment for life and a fine of Rs.5,000 or in default of its payment to undergo rigorous imprisonment for six months on the former count and R.I. For three years and a fine of Rs.500 under section 457, P.P.C. He has challenged his conviction and sentence through this appeal. Muhammad Rafiq complainant filed Criminal Revision No. 121 of 1983 for enhancement of sentence which was admitted to regular hearing vide order, dated 5-11-1984. The appeal and the revision petition are being disposed of by this judgment.
2. The brief facts of the prosecution case are that Muhammad Asghar deceased and his sons Muhammad Rafiq complainant and Muhammad Haleem were running an Ahrat shop in Grain Market, Mandi Bahaud Din. The deceased used to sleep in the shop at night. On 6-1-1982 at about 6 p.m. The complainant went to his house from the shop while the deceased stayed there as usual.
On 7th January, 1982 at 7-45 a.m. The complainant was informed that the shop was lying closed and the deceased was not responding to the calls for opening it. The complainant rushed to the shop and found its door bolted from inside. He gave a call to the deceased but there was no response. The complainant entered into the shop through the other door on the backside which was not bolted from inside. He found the dead body of his father wrapped in a quilt lying in the store. Both the arms of the deceased were tied with his turban and his sock was tied around the neck. The keys of the safe were found in its lock. The complainant opened the safe and found that currency notes worth Rs.1,200 had been removed from it. However, an amount of Rs.92,000 locked in the upper part of the safe was intact. On receiving information about the occurrence, Malik Muhammad Safdar Sub---Inspector reached the spot and recorded statement Exh.P.C. Of Muhammad Rafiq complainant incorporating the above facts, at 10-30 a.m. On the basis of this statement, formal F.I.R. (Exh.P.C./1) was recorded at Police Station Mandi Baha-ud-Din at 9-40 a.m.
3. On 10-1-1982 Muhammad Afzal and Muhammad Saleem P.Ws. Produced the accused before Malik Muhammad Safdar Sub-Inspector. Earlier he had made a confession before them at the house of the latter that he had murdered the deceased and thereafter removed some cash wrapped in a handkerchief from the safe. The Sub-Inspector recorded their statements and arrested the accused. On 9-1-1982 the accused led to the recovery of currency notes (Exh.P.9/1- 160), radio set (Exh.P.11) and timepiece (Fxb.P.12) from a box lying in the room of his house. The currency notes were wrapped in handkerchief (Exh.P.10) on which the name of the deceased had been embroidered. These articles were taken into possession vide memo. Exh.P.D. After the investigation, the accused was challaned.
4. On 7-1-1982 at 3 p.m. Dr. Nazir Ahmad Anwar, Medical Officer, Civil Hospital, Phalia conducted the autopsy on the dead body of Muhammad Asghar deceased. The eyes and face were congested, tongue and lips cyanosed, dissection of the neck showed subcutance ecchymosis and inner surface of trachea showed haemorrhage spots. There was an abrasion 1 c.m. x 1 c.m. Over the back of the right hand. In the,opinion of the doctor, death had occurred due to strangulation.
4.There is no eve-witness of the occurrence and the prosecution rests on evidence relating to extra-judicial confession and recoveries. Muhammad Afzal and Muhammad Saleem are witnesses of extra-judicial confession while Muhammad Rafiq complainant, Lal Khan (P.W.5) and Muhammad Safdar Sub-Inspector furnished evidence of recoveries.
5. The appellant pleaded not guilty to the charge, denied the prosecution allegations against him and contended that he had been falsely implicated. When asked why this case against him, he made the following statement:- "I was a dealer in rice and paddy and was running a joint business with one Abdul Rehman son of Jalal resident of Jahlpur Tehsil Kharian, Police Station Sarai Alamgir. Abdul Rehmar, mentioned above was illegally arrested by the police and while, in that process Abdul Rehman had a fight with the police, in which both the sides exchanged fire shots, in which Abdul Rehman and some police constables and A.S.I. Were injured. The police registered a case under section 307, P.P.C. And under section 13 of the Arms Ordinance. 1965 against Abdul Rehman and also implicated his wife. Abdul Rehman and his wife were sentenced to four years' R.I. Each by a Magistrate 1st Class, Gujrat. In appeal Abdul Rehman and his wife were acquitted. Subsequently Abdul Rehman was falsely involved in a murder case, in which he was sentenced to death by the Sessions Court. But was subsequently acquitted by the High Court. I helped Abdul Rehman mentioned above in his defence and also appeared as a D.W. In his case. The police got annoyed with me and involved me falsely in many criminal cases and on my acquittal in all those cases the present case has been falsely brought against me by the police at the instance of the complainant party, as I was also a dealer in rice and paddy. I had business rivalry with Muhammad Rafique, who also tore grudge against me. On account of these reasons I have been falsely implicated in this case. All the P.Ws. Including the police officials and the Medical Officer are also the workers in the grain market. Diwan Abdul Munan P.W. Is also against me. Diwan Abdul Munan and Muhammad Rafique P.Ws. Conspired with Salim and Afzal and Lal P.Ws. And they have fabricated this false case against me "
The appellant produced copy of the report Exh.D.1 in his defence.
6. The trial Judge accepted the prosecution evidence against the appellant and convicted and sentenced him as mentioned above.
7. Learned counsel for the appellant contends that extra-judicial confession is the weakest type of evidence and particularly in the present case there is no reason to believe it because the witnesses of extra-judicial confession had no terms with the appellant nor were in a position to help him in any manner. He further submits that the witnesses of recovery were imported from a distant place and many persons from the locality though available were not associated in the recovery proceedings, therefore, the evidence of recovery witnesses is of no consequence at all.
Learned counsel for the complainant and the State, on the other hand, contended that the witnesses of extra-judicial confession as also of recoveries had absolutely no motive to falsely implicate the appellant in a heinous crime like murder, therefore, their evidence has been rightly relied upon by the trial Court. Learned counsel for the complainant further submitted that there was no mitigating circumstance in favour of the appellant and in view of the enormity of the crime capital punishment should have been awarded.
8. It is true that the witnesses of extra-judicial confession are neither related to the deceased nor inimical towards the appellant. At the relevant time they were working as commission agents in the same grain market where the deceased was carrying on his commission shop. However, the mere fact that they were not related to the deceased nor inimical towards the appellant, would not clothe them with credibility. It is the intrinsic merit of their statements which is to be considered.
Muhammad Saleem P.W. Stated that he was present at his house alongwith Muhammad Afzal P.W.
When A.I Muhammad- accused came there at 2-30 p.m. He started talking about the murder of Asghar deceased and requested them to help him. They enquired from him as to what had actually happened and he told them that he had murdered Asghar deceased at night by strangulating him and had stolen away some cash wrapped in a handkerchief as well as a timepiece I and a radio set. In cross-examination he admitted the he had known the accused for the last about six months but had never dealt with him nor ever visited his village and was not on family terms with him. He further admitted that he was neither a Lambardar nor a Member/Panch of the locality and had no relations with the police. He even did not know who was the Officer-in- charge of Police Station Mandi Baha-ud-Din during those days. He further admitted that before the accused proceeded to make the confession he told him that he had no special relations with the police (Urdu record) and for that reason there was no use of making any such statement before him. It is surprising that the accused visited the house of this witness to make the confession before him when he had no relations with him and before he made the confession the witness had clearly told him that he was not in a position to render him any help in that matter. Muhammad Afzal P.W.
Claims his presence at the house of Muhammad Saleem at the time the confession was allegedly made. His statement does not stand on any better footing. He admitted that he was not on visiting terms with the accused and was never known as a respectable person to help the people with regard to the investigation of a particular case'. The evidence relating to extra-judicial confession is thus unsatisfactory and is not worth reliance.
9. According to the prosecution, the accused, while in custody, led to the F recovery of currency notes, handkerchief, radio and a timepiece belonging to the deceased. It is alleged that the name of the deceased was embroidered on the handkerchief. This fact was not mentioned in the F.LR.
RaFq (P.W. And Lail Khan (P.W.5) furnished the evidence relating to recoveries. Both of them belong to Mandi Baha-ud-Din whereas the recoveries were effected from a box lying in the house of the appellant in village Sohawa. Both the recovery witnesses admitted that at the time of recovery several persons had assembled at the place of recovery but the Investigating Officer did not associate any of them in the recovery proceedings. In the circumstances, when persons of the locality were available but they were not associated in the recovery proceedings, the evidence of the witnesses imported from a distant place cannot be relied upon.
10. In view of what has been stated above, we are of the view that the prosecution has not been able to prove its case against the appellant beyond a reasonable doubt. Accordingly, we allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.
Criminal Revision No. 121 of 1983 automatically fails and is dismissed.