KHIZAR HAYAT, J.--This appeal is directed against the judgment, dated 23-4-1988, whereby Special Court for Speedy Trials No. 5, Multan convicted Mukhtar alias Gope (25) and Muhammad Pervaiz (23) residents of Arifwala town, District Sahiwal, under section 302/34, P.P.C., sentencing the former to death and the latter to imprisonment for life and a fine of Rs.10,000 each or in default to undergo 2 years' R.I. Each. Learned trial Court further directed them to pay Rs.50,000 each to the heirs of Muhammad Hussain Chowkidar (deceased) by way of compensation under section 544-A, Cr.P.C., or to undergo 6 months' R.I., each.
2. The incident took place on 2-11-1987 at about 4 a.m., in a street in `C' Block of Arifwala town. It was an unwitnessed occurrence. Ch. Abdul Hameed (P.W. 6) after seeing the dead body of the deceased, having gunshot wounds on it, lodged report Exh. P.D. At Police Station Arifwala at 5.30 a.m., recorded by Muhammad Ibrahim, S.H.O. (P.W. 14).
3. The prosecution case as disclosed at the trial was that during the days of occurrence, Mukhtar (appellant) worked as "Palledar" in Sabzi Mandi, Arifwala, while Muhammad Pervaiz (appellant) had established a hair cutting shop in `C' Block of Arifwala town. They had illicit relations with each other and lived together in a rented Chaubara near the hair cutting shop of Muhammad Pervaiz. About 2/3 days prior to the night of occurrence Muhammad Hussain Chowkidar reported to the police about appellants' maintaining illicit connections with each other as a result whereof Muhammad Pervaiz was arrested and a dagger was recovered from him by the police. This was resented by the appellants. On the day preceding the night of occurrence, Muhammad Pervaiz after his release on bail approached Muhammad Hussain Chowkidar in the company of Mukhtar in Sabzi Mandi, Arifwala, and protested that he had dishonoured them by making report against them to the police. There occurred exchange of hot words between them. The appellants issued threats to him to take revenge of their insult and went away. This happened in the presence of Mushtaq Hussain (P.W. 9) at the shop of Ahmad, a vegetable seller. On the fateful night at 4 a.m. (mid-night) Abdul Hamid, complainant (P.W. 6) while present in his house, heard alarm emanating from `C' Block. He rushed there and saw persons gathered near the house of Ferzand A.I (P.W. 7) where dead body of Muhammad Hussain (deceased) was lying with gunshot wounds. Ferzand A.I (P.W. 7) told him that at about 3-45 a.m., he was awakened by his wife and had heard a report of gun-fire. After 10/15 minutes he came out in the street and saw dead body of the deceased lying at a distance of about 80/90 feet. He raised alarm which attracted Sh. Fakhar Din and Sh. Abdul Waheed. Abdul Hamid then repaired to the local police station and lodged report Exh. P.D. There, as mentioned earlier.
4. Muhammad Ibrahim, S.H.O. Arifwala (P.W. 14), after registering F.I.R., reached the spot. He despatched the dead body for post-mortem examination and collected blood-stained earth, a cycle P. 13, and shoes P. 12 belonging to the deceased, 4 empties P. 14/1-4 and a bullet P. 15 from the spot vide memo. Exh. P:E. Attested by Iftikhar (P.W. 8).
5. Dr. Saeed Ahmad Khan (P.W. 1) at 8-30 a.m., the same day, conducted post-mortem examination on dead body of the deceased and noted 4 gunshot wounds thereon, namely, a through and through lacerated wound 1 c.m. x 1 c.m. On the upper 1/3rd of right arm with fracture of humerous bone: a lacerated entry wound behind right scapula with exit wound on the left side of chest, 9th rib under the injury was fractured and right lung and the heart perforated; a lacerated wound 1 c.m. x 1 c.m. On back of abdomen with exit wound on front of abdomen; and a lacerated wound 1 c.m. x 1 c.m. On right side of mandible with exit wound on left side of neck and the trachea was perforated. According to the doctor, these injuries resulted in instantaneous death and post- mortem was conducted after about 5/6 hours of the death.
6. On 3-11-1987, Muhammad Pervaiz (appellant) confessed his guilt before Haji Khushi Muhammad (P.W. 11) and Mukhtar (appellant) confessed before Haji Hussain (P.W. 12). They produced the appellants before the Investigating Officer (P.W. 14) who arrested them. On 9-11-1987 Mukhtar appellant, at his pointation, got recovered his licensed revolver (P. 16) from his house which was seized under memo. Exh. P.F. In presence of Aftab Hussain (P.W. 13), real brother of Mushtaq Hussain (P.W. 9).
7. At the trial: prosecution examined all told 14 witnesses. Abdul Hamid (P.W. 6) is the first informant, Muhammad Iftikhar (P.W. 8) and Aftab Hussain (P.W. 13) deposed to about recoveries made from the spot and the appellants respectively. Muhammad Farooq (P.W. 10) stated that during the days of occurrence he was contesting local bodies elections. On .The night of occurrence at 3.30/4 a.m.
He was going to Sahiwal in his car for collecting his election posters and had seen in light of the headlights of his car, Muhammad Pervaiz (appellant) empty-handed and Mukhtar (appellant) armed with a revolver coming from Power House' side and going towards `C' Block, Arifwala. He admitted that there are two Printing Presses at Arifwala but they did not print his posters due to rush of work so he got his posters printed at Sahiwal from Oriental Printing Press owned by his relatives, but he had not obtained cash memo. For the payment he made to that press.
8. Mushtaq Hussain (P.W. 9) has narrated the motive part of the story, i.e. That on the day preceding the night of occurrence the appellants had protested to the deceased and quarreled with him at the shop of Ahmad in Sabzi Mandi for his making a report against them to police and thus dishonoured them. He further stated that the appellants had left after extending threats of dire consequences to him. The witness also claimed to have seen recovery of dagger from Muhammad Pervaiz (appellant) and his consequent arrest by the police at about 8/9 a.m. Two days before the instant occurrence. He did not, however, say that the deceased had made any report against the appellants in his presence. Haji Khushi Muhammad (P.W. 11) stated that Muhammad Pervaiz (appellant) came to him at his Commission-Agents shop and stated that Mukhtar Gope had illicit relations with him. Muhammad Hussain Chowkidar (deceased) had seen them committing carnal intercourse against order of nature and had made a report against them to the police. The police arrested him (Muhammad Pervaiz) and recovered a dagger from him, therefore, they murdered Muhammad Hussain, i.e. Gope fired 2/4 shots at him in `C' Block as a result of which he died. The witness further stated that Muhammad Pervaiz (appellant) had told him that the police was teasing his family, so he should be helped. He requested to be produced before police, whereupon he (witness) alongwith Sufi Rashid P.W. And Rana Anees produced him before the police. Likewise Hadi Hussain (P.W. 12) stated that Mukhtar (appellant) came to his factory at noon time and confessed that he alongwith Muhammad Pervaiz (appellant) had murdered Muhammad Hussain Chowkidar and that the police was after him and was also teasing his family, therefore, he be produced before the police. Further stated that when he (witness) questioned the appellant as to why he murdered Muhammad Hussain Chowkidar, he, (Mukhtar appellant) replied that he had illicit relations with Muhammad Pervaiz for the last two years; "the Chowkidar" had seen them committing carnal intercourse against order of nature and made a report against them to the police. The police therefore, arrested Muhammad Pervaiz and recovered a dagger from him. In this way the Chowkidar had dishonoured them, therefore, they had "chalked out a programme and then he (Mukhtar) fired four shots from his revolver on the Chowkidar" and killed him. The appellant (Mukhtar) desired that he be produced before the police, therefore, he (the witness) produced him before the police.
9. Naseer Ahmad, Constable (P.W. 2) stated that he was given two sealed parcels containing blood-stained earth and crime empties P. 14/1-4 (collected from the spot) on 3-11-1987. He delivered the parcel containing the crime empties in the office of Director, Forensic Science Laboratory, on 8-11-1987. A.S.I. Amin (P.W. 3) then gave him parcel of revolver P. 16 on 11-11-1987 which he delivered in the aforesaid office on 12-11-1987. It may be mentioned that according to Superintendent of Police, Technical Services' report Exh. P.M. The empties (P. 14/1-4) on examination were found to have been fired from revolver P. 16.
10. Both appellants, in their statements under section 342, Cr.P.C., denied the motive, making of extra-judicial confession and the incriminating recoveries from them and professed innocence.
They declined to appear in disproof of the allegations as required by section 340(2), Cr. P.C. And produced no defence evidence.
11. Learned trial Court on consideration of material on record discarded the evidence of Muhammad Farooq (P.W. 10) a Wajtakkar witness, as being not reliable but accepting evidence of motive, evidence of extrajudicial confession, and the recovery of revolver P. 16 coupled with Fire- arms Examiner's report Exh. P.M. Held the appellants guilty of the murder of Muhammad Hussain (deceased) and sentenced them as indicated above.
12. We have heard learned counsel for the appellants as well as for the State and also perused the record. Learned Assistant Advocate-General after verifying it from the Jail authorities informed us that Mukhtar, appellant (the principal accused) has since died. But his appeal would not abate because it is directed against the sentence of fine also imposed on him by the learned trial Court.
We would, therefore, consider this appeal qua both appellants on merits.
13. At the outset we may say that the evidence of Wajtakkar witness, Farooq Ahmad was rightly ruled out of consideration by the trial Court. The witness stated that he returned from Sahiwal after collecting his election posters at 12 noon on the day of occurrence, but Constable Naseer Ahmad (P.W. 2) stated that when he visited the spot with the Investigating Officer (P.W. 14) at 6-30 a.m. On first day he had seen Muhammad Farooq P.W. Present there. This belies the claim of Muhammad Farooq P.W. That on the night of occurrence, while going to Sahiwal at 4 a.m. He had seen the appellants in the light of headlights of his car near the spot.
14. Evidence of extrajudicial confession is provided by Haji Khushi Muhammad (P.W. 11) and Syed Hadi Hussain (P.W. 12). According to them. Muhammad Pervaiz confessed his guilt before Haji Khushi Muhammad and Mukhtar confessed before Syed Hadi Hussain (P.W. 12). Both Haji Khushi Muhammad and Syed Hadi Hussain P.Ws. On their own showing had no relations of special nature with the appellants. They did not have any pull with the police either, therefore, it is hard to believe that the appellants had approached them for help in the case or confessed their guilt before them.
It is pertinent to note that in police statements Exhs. D.C. And D.D. Of these P.Ws. There is no mention that, the appellants while confessing had told them the cause for murdering the, deceased i.e., that deceased had seen them committing carnal intercourse against the order of nature and reported to the police against them. Muhammad Pervaiz, appellant, in his so-called confessional statement made before Haji Khushi Muhammad P.W. Had not . In any manner inculpated himself for committing deceased's murder, so his statement cannot be treated as confession. The evidence of extrajudicial confession, discussed above, does not inspire confidence' and is, therefore, not worthy of reliance.
15. The other piece of evidence is the recovery of crime empties (Exh. P. 14/1-4) from the spot which, according to Fire-Arms Expert's report (Exh. P.M.) were found to have been fired from the licensed revolver (P. 16) of Mukhtar, appellant. Mukhtar while admitting that revolver (P. 16) belongs to him, explained that it was seized by the police on 2-11-1987 and then empties (Exh. P. 14/1-4) were fabricated and sent to the Firearms Expert. Admittedly, he was arrested on 3-11-1987 after he confessed to have shot the deceased to death and that he owned a licensed revolver. It is not, therefore, believable that being possessed of these informations, the police could not recover the weapon till 9-11-1987. It is very much intriguing that the empties (P. 14/1-4) secured from the spot in the morning of 3-11-1987 were not deposited m the office of Fire-arms Examiner till 8-11-1987 without any cogent reason. Further Abdul Hamid, the first informant, who stated in the F.I.R. That cycle and shoes of the deceased were lying at the spot has not mentioned therein that empties were also lying there.
There is a gap of one day between depositing the empties in expert's office and recovery of the revolver. In the circumstances, it appears to us that the empties were not deposited with Arms Expert till 8-11-1987 because they were not available with the police from 3-11-1987 to 7-11-1987 and that they were prepared after procuring revolver (P. 16) from the appellant during this period and then deposited them with Arms Expert with an interval of three days to make the Court believe that the recoveries are genuine and relevant. For these reasons Firearm Expert's report (Exh. P.M.) is bereft of any evidentiary value and is of no consequence.
16. There now remains the evidence of motive. This evidence alone, even if accepted, would not be sufficient for sustaining conviction of the appellants whereas this piece of evidence, in our view, cannot be relied upon. None of the P.Ws. Stated that the deceased had ever mentioned to him that he had seen the appellants committing carnal intercourse against order of nature or that he made a report to the police in this regard. Prosecution has not produced any report F from police record (containing allegation of sodomy) purported to have been lodged by the deceased against the appellants. No attempt had been made to lead medical evidence for showing that any one of the appellants was a passive agent. Regarding recovery of dagger from Muhammad Pervaiz and his arrest in this connection, the Investigating Officer (P.W. 14) stated that the deceased was neither informant in the case nor a prosecution witness. Mushtaq Hussain (P.W. 9) stated that on the day preceding-the night of occurrence the appellants had quarreled with the deceased and threatened him at the shop of Ahmad to avenge the insult but Ahmad had not came forward to support this version. Mushtaq Hussain (P.W. 9) has exhibited undue enthusiasm by stating that he had seen the police arresting Muhammad Pervaiz, appellant, when a dagger was recovered from his shop about 2 days before the occurrence at about 8/9 a.m. But he is belied by the Investigating Officer (P.W. 14) who stated that Muhammad Pervaiz was arrested in Arms Ordinance case pertaining to recovery of dagger, which was effected at 4 p.m. Consequently, we find that there is no convincing evidence available on record indicating that appellants had any grudge or ill-will against the deceased.
17. For what has gone above, we hold that the circumstantial evidence I brought on record was not fully established and appellants are not connected with the crime beyond reasonable doubt.
Resultantly, we allow this appeal, set aside the conviction and sentence of the appellants and acquit them. Mukhtar, appellant, is stated to have died. Muhammad Pervaiz, appellant, was directed to be released forthwith if not required to be detained in any other case, by our short order, dated 29-4-1989, and these are our reasons for the same.
N.H.Q./M-1515/L