RIAZ AHMAD, J.--Appellant Ghulam Farid son of Allah Ditta, aged 26 years resident of village Haidan was tried alongwith Tariq son of Ghulam Haider aged 17 years resident of Sargodha Road, Gujrat by the learned Sessions Judge, Jhang, on a charge under section 302 read with section 34 of the Pakistan Penal Code for having caused the murder of Sajjad Hussain son of Fida Hussain of village Haidan. The learned Sessions Judge, Jhang, vide his judgment dated 8th of March, 1986, acquitted Tariq of the charge but found Ghulam Farid, appellant, guilty. The appellant was thus convicted under section 302 of the Pakistan Penal Code and was sentenced to death and to pay a fine of Rs.10,000 or in default thereof to suffer another term of three years' rigorous imprisonment. It was also directed that in the event of the recovery of fine, the same shall be paid to the legal heirs of the deceased Sajjad Hussain as compensation under section 544-A Cr.P.C.
2. Aggrieved by his conviction, the appellant has assailed the same through Criminal Appeal No.180 of 1986. Criminal Revision No.488 of 1988, has been filed by the complainant to challenge the acquittal of Tariq and the case has also been referred to us under section 374 Cr.P.C. This judgment shall dispose of the appeal, the aforesaid revision and the reference.
3. The facts of the case as brought out on the record by the prosecution are that on 15th of January, 1984 at morning time, Nawab P.W. 8, Chaukidar of village Kot Essa Shah within the jurisdiction of Police Station Oadirpur was proceeding to Chah Muhammad Wala for the collection of land revenue. On his way to the said Chah, he passed by the side of Chah Satram Wala and he observed foul odour coming out of the said Chah. It may be stated here that the said Chah was an abandoned Chah. Nawab, P.W.8, peeped into the said well and noticed a bundle lying in the well and in the said well,, he also noticed a sweater. Nawab P.W. 8, suspected it to be a dead body and thus he proceeded to the house of Din Muhammad, a member of the Union Council and informed him about the bundle lying in the well. Nawab P.W. 8 accompanied by Din Muhammad, came back to the well and on their way, one Hassan Gujjar and Muhammad Sibtain joined them. All these four persons concluded that it was dead body of some person lying in the well. Leaving Din Muhammad, Muhammad Sibtain and Hassan Gujjar, near the well, Nawab P.W. 8, proceeded to the police station for lodging a report. On his way, Nawab P.W.8, came: across Bashir Ahmed P.W. 14, at Adda Doaba and the matter was reported to him. Bashir Ahmed, A.S.I. P.W. 14 recorded the statement of Nawab P.W.8, Exh.P.E. At 9-30 a.m. And sent the same to the Police Station Qadirpur where the formal F.I.R. Exh.P.E./1 was recorded at 10 a.m. By Imtiaz Hussain, Moharrir Head Constable, P.W.4. The dead body was brought out and it was tied with a Chadar and plastic string with a load of the pieces of bricks and hence the investigating officer took the same into possession vide memo. Ex P.H. The dead body was sent for post-mortem examination and P.W.6 Anwar Hussain took the photograph of the dead body. Since the dead body was unidentified, therefore, Allah Yar P.W.7, an employee of the Municipal Committee, Jhang, got it buried.
4. On 18-2-1984, Ghulam Raza, P.W.12, a real brother of Sajjad Hussain deceased, went to the Police Station Qadirpur and identified the last worn clothes of Sajjad Hussain deceased and also saw the photograph and made a statement before the police that it was the dead body of his brother Sajjad Hussain whose whereabouts were not known for the last two months. Ghulam Raza, P.W.12, further stated that on the night between 24th and 25th of December, 1983, deceased Sajjad Hussain, had left his house in the company of the appellant Ghulam Farid and his brother Sultan for proceeding to Karachi to seek an employment. After the departure of the deceased, no information was received from the deceased about his whereabouts and thus Ghulam Raza P.W.12 approached the appellant Ghulam Farid to enquire about the deceased but the appellant told him that the deceased had not gone to Karachi and had returned from village Bheru. Ghulam Raza, P.W.12, also stated that he became suspicious and in village Haidan, he came to know about the recovery of unclaimed dead body and thus, he reached the police station for assistance and there, he came to know that the unclaimed body was of his brother. According to Ghulam Raza P.W.12, the appellant Ghulam Farid and his brother Sultan had killed his brother because they were nursing a grudge against the deceased, on account of the fact, that 10 years before the occurrence, the deceased had abducted the sister of the appellant Ghulam Farid and Sultan namely Mst. Rajan, who was, however, returned through the efforts of Ghulam Shabbir, P.W.9. On 16th of January, 1984, "ie investigation was taken over by Muhammad Ibrahim, S.I., S.H.O., P.W.13, and thus he on the facts as narrated by Ghulam Raza, P.W.12, arrested Ghulam Farid and Sultan, on 20th of March, 1984, when their application seeking pre-arrest bail was dismissed. Muhammad Ibrahim, S.H.O. P.W.13, could not make any progress towards the investigation of this case and hence the investigation was transferred to Mr. Hameed Ullah Oureshi, Inspector, C.I.A., Staff, Faisalabad, P.W.15, who started the investigation on 29-8-1984. On 15-9-1984 Muhammad Hayat P.W.11 and his brother Zulfiqar appeared before Mr. Hameed Ullah Qureshi, Inspector C.I.A. Staff, Faisalabad P.W.15 and stated that appellant Ghulam Farid had made extrajudicial confession before them in which Ghulam Farid, appellant, instead of naming his brother Sultan has named Tariq as his associate in the murder of Sajjad Hussain. Mr. Hameed Ullah Qureshi, Inspector C.I.A. Staff, Faisalabad, P.W.15, arrested Tariq on 30th of September, 1984. On 4th of October, 1984, Tariq, accused while in police custody, led to the recovery of watch of the deceased P.1 from his furniture shop situated in Mohallah Ferozeabad, Gujrat, which was taken into possession vide memo. Exh.P.C. Attested by Abdul Sattar P.W.3, and Ghulam Abbas (not produced) besides the Investigating Officer, Mr. Hameed Ullah Qureshi, Inspector C.I.A. Staff, Faisalabad, P.W.1-5. On 6th of October, 1984, appellant Ghulam Farid produced a ring of gold P.2 belonging to the deceased. The appellant also produced his licensed gun P3 alongwith 10 live cartridges which were taken into possession vide memo. Ex.P.D. Attested by P.W.3 Abdul Sattar and Ghulam Abbas (not produced) besides the Investigating Officer Mr. Hameed Ullah Qureshi, Inspector C.I.A. Staff, Faisalabad P.W. 15.
5. On 16-1-1984, Dr. Muhammad Sabir Chaudhri, Medical Officer, D.H.Q. Hospital, Jhang, P.W.1, conducted the post-mortem examination on the dead body of the deceased Sahad Hussain. The dead body had decomposed and the pealing of the skin had also taken place and the following injury was noticed: "A lacerated wound 3 c.m. x 3 c.m. x not probed hang inverted edges on the right temporal region of the head."
On dissection, there was 3 c.m. x 3 c.m. Opening on the right side of the skull and the right parietal occipital region had been fractured. There was laceration of the brain matter. One bullet and two wads were recovered from the brain matter. In the opinion of the doctor, the cause of death in this case was the injury to the brain resulting in haemorrhage and shock because of injury to the right temporal region, which was sufficient to cause death in the ordinary course of nature and the injury was caused by fire-arm.
6. It is pertinent to mention that Mr. Hameed Ullah Qureshi, Inspector C.I.A. Staff Faisalabad, P.W. 15, acting on the basis of extra-judidial confession in which Ghulam Farid appellant, named Tariq as his associate, instead of Sultan, got the latter discharged and thus eventually, appellant Ghulam Farid and Tariq acquitted accused were made to stand their trial on the aforesaid charge.
7. In order to prove its case at the trial, prosecution placed reliance upon last seen evidence, the evidence as to the recoveries, the evidence as to the motive and the extra-judicial confession made by the appellant Ghulam Farid in presence of Hayat P.W.11 and Zulfikar (not produced). The appellant Ghulam Farid and the acquitted accused Tariq did not make any statement under section 340(2), Cr.P.C. But when examined under section 342 Cr.P.C., they denied the charge and stated that they had been implicated in this case falsely.
8. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the record and we have also heard them pt length.
9. At the very outset, we will first appraise the evidence as to the motive, The prosecution case, in brief is that, 10 years before this occurrence, the deceased Sajjad Hussain had abducted Mst. Rajan, a real sister of the appellant Ghulam Farid but was returned through the conciliation of Ghulam Shabbir, P.W.9. The appellant Ghulam Farid at that time was 10 years of age. The appellant had also joined Army and during the service had succeeded to obtain a licence to keep a gun. The appellant had then left the Army and came back to his village. In order to avenge the insult about the abduction of his sister, he hatched the conspiracy and became friendly to the deceased. The appellant then persuaded Sajjad Hussain deceased to accompany him to Karachi where he could arrange an employment for the deceased and thus on the night between 24th and 25th of December, 1983, the appellant accompanied by his brother Sultan came to the house of the deceased Sabad Hussain. The appellant then asked the deceased to accompany him to Karachi and the deceased carrying a hand bag left his house for proceeding to Karachi. After the departure of the deceased, his whereabouts were not heard and thus to enquire about the deceased, P.W.12 Ghulam Raza, a real brother of the deceased, contacted the appellant who replied that the deceased had not gone to Karachi but had returned from village Bheru where they stayed for the night.
10. To support the evidence as to the motive, the prosecution also produced Ghulam Shabbir P.W.9 who stated that about 12 years before the occurrence, Mst. Rajan, a sister of the appellant, was abducted by the deceased Sajjad Hussain and was returned through the reconciliation by Punchayat. Ghulam Shabbir P.W.9, also stated that the appellant had a grudge against Sajjad Hussain, deceased, for the aforesaid abduction.
11. We have carefully analysed the statement of Ghulam Shabbir P.W.9 but the same does not inspire any confidence. In cross-examination, Ghulam Shabbir, P.W.9, stated that he was only 20/23 years of age at the time of abduction of Mst. Rajan. It was admitted by Ghulam Shabbir P.W.9 that at the time of abduction, the father of the deceased was alive and similarly other elders of the family were A also alive at that time. Ghulam Shabbir, P.W.9, also admitted in cross--examination that his village is situated at a distance of 17/18 miles away from village Haidan where the deceased and the appellant lived. He further admitted that there are other notables of the village Haidan. The witness also admitted that the deceased was the son of his maternal-uncle. It also came to light that Mst. Rajan had died two months before the murder of Sajjad Hussain. The evidence, in our view, is scanty. Even if, Mst. Rajan had been abducted, we are not prepared to believe that her cousin Ghulam Shabbir, P.W.9, a young man of 22 years of age, at the time of adbuction of Mst. Rajan, would become so important, so as to play the role for the return of Mst.
Rajan, particularly, when other elders and notables were also alive. It is further important to note that his statement was recorded by the police after about two and a half months of the recovery of the B dead body of Sajad Hussain, deceased. In this view of the matter, we are least convinced about the truth of the evidence as to the motive and thus, we have no hesitation to discard the same.
12. Adverting to the last seen evidence produced by the prosecution, we have gone through the statements of Ghulam Raza, P.W.12, the complainant and the brother of the deceased and Liaqat Hussain P.W.10. We need not repeat the statement of Ghulam Raza, P.W.12, but suffice it would be to mention that he C named Sultan, a real brother of the appellant, who had visited his house to take the deceased to Karachi. Liaqat Hussain P.W.10 stated that he alongwith one Nawaz Shah was proceeding from Jhang to village Haidan and on the way he met the appellant, Sajjad Hussain deceased, Sultan and Tariq at Bus Stop Kachewala. Liaqat Hussain P.W.10 further stated that Sajjad Hussain deceased had a hand bag while the appellant had a gun with him and on his enquiry. The witness was informed that the party was going to Karachi but for the night they would be staying in the house of Ghulam Muhammad, an uncle of the appellant in village Bheru. Liaqat Hussain P.W.10 was confronted with his statement recorded under section 161 Cr.P.C. Exh.D.A In the aforesaid statement, he had only named Ghulam Farid appellant and Sultan and had not named Tariq, who were D accompanying the deceased when he saw them at Bus Stop Kachewala. Similarly, in Exh.DA. 1,aqat Hussain P.W.10, did not state that the deceased had told him that he was going to Karachi with the appellant but in Court, he stated that the deceased had told him that he was going to Karachi. Appraising the evidence of these two witnesses, we are of the view, that their statements also do not inspire confidence because it is not possible to forget the name of Tariq, if at all, he was accompanying the appellant. Similarly, if Sultan was also accompanying them, then omission as to his name, contrary to the initial stand taken by Ghulam Raza P.W.12 and his substitution by Tariq in extra-judicial confession leads us to disbelieve the entire prosecution evidence. We are thus of the view that the last seen evidence consisting of the statements of Liaqat Hussain P.W.10 and Ghulam Raza P.W.12 is unworthy of belief.
13. As far as the extra-judicial confession made by the appellant Ghulam Farid before Hayat P.W.11 and his brother Zulfiqar is concerned, the same cannot be believed. It may by stated here that vide his statement dated 18th of February, 1984, Ghulam Raza, P.W.12, as stated above had named Sultan a brother of Ghulam Farid appellant. Both the appellant and his brother Sultan were arrested on 20th of March, 1984, when their pre-arrest bail application was rejected. On 22nd of August, 1984, they were admitted to bail by the learned Sessions Judge, Jhang. On 14-9-1984, it is alleged that the appellant had made extra-judicial confession before Hayat, P.W.11 and his brother Zulfiqar in which instead of naming Sultan, the brother of the appellant Ghulam Farid, he named Tariq as one of the culprits and that is why Tariq was arrayed as an accused person. It is noteworthy to mention that Hayat P.W.Il, had been joining the investigation in this case being a notable and Vice-Chairman of the Union Council, Mazari.
14. The learned Sessions Judge believed the extra-judicial confession on account of ample corroborative evidence having been brought on the record by the prosecution. The learned Sessions Judge treated medical evidence as corroboration of the extra-judicial confession. We are unable to agree with such finding arrived at by the learned Sessions Judge. The medical evidence would only show that the deceased had been killed by a bullet, but this would not necessarily mean that it was the appellant who had killed him, even though, the appellant had confessed in the extra-judicial confession that he had fired a shot by keeping the gun on the temporal region of the deceased. The learned Sessions Judge also lost sight of the fact that the appellant was carrying gun at the time when he took away the deceased with him to Karachi, whereas; according to the medical evidence, it was a bullet which had caused the death of the deceased. The G extra- judicial confession cannot be believed because the same was made long after the appellant was released on bail. The circumstances to our mind seem to be suspicious about this extra-judicial confession and, therefore, we are hesitant to act upon the same, particularly when no corroborative evidence worth the name has been brought to lend support to it.
15. Adverting to the evidence as to the recoveries, as far as the watch is concerned, there is no evidence except the statement of Ghulam Raza P.W.12 that this watch belonged to the deceased.
Similarly, as far as the golden ring is concerned, it has inscription of the name of the deceased on it but the same cannot be believed to be owned by the deceased.
16. The upshot of the above discussion is that the prosecution has failed to establish its case on the record and thus, we have no hesitation to allow this appeal. Accordingly, the appeal preferred by the appellant is allowed. His conviction and sentences are set aside and he is acquitted and the death sentence awarded to him is not confirmed. The reference is also answered accordingly.
17. As far as the revision petition filed by the complainant to challenge the acquittal of Tariq is concerned, we are satisfied that involvement of Tariq in this case is doubtful because initially since Ghulam Raza P.W.12 came to know that the unidentified dead body was of his brother, he did not name Tariq but had named Sultan, a brother of the appellant, as one of those with whom, the deceased had proceeded to Karachi. In his extra-judicial confession for the first time, the appellant named Tariq and, therefore, in our view, this prevarication alone was sufficient for the acquittal of Tariq. We do not find any substance in this revision petition because the circumstances do not warrant any interference with the acquittal of Tariq by this Court, Accordingly, the revision petition is dismissed.