' MUHAMMAD MUNIR KHAN, J.-- This criminal appeal arises from the judgment of learned Judge, Punjab Special Court for Speedy Trial No, VI, Bahawalpur, whereby he on 8-6-1988, acquitted Mushtaq Ahmad (22) and Tahir Mehmood (14) of the charges under sections 364-A, 302, 201/34, P.P.C.
2. The occurrence took place on 27-3-1988 at Isha time in Ward No,3 Yazman Town at a distance of two furlongs from Police Station Yazman. F.I.R. Exh.PE. Was lodged by Mst. Maqsood Bibi P.W.8, mother of the deceased Imtiaz Ahmad, aged 7 years, on 28-3-1988 at 9-00 a.m. And was recorded by Muhammad Saeed, Inspector, P.W.15.
3. Tahir Mehmood and Mushtaq Ahmad respondents are cousins inter sell, Imtiaz Ahmad deceased was step-brother of Mushtaq Ahmad respondent.
4. The motive allegedly was dispute over the share of a house between Musthaq Ahmad and Mst.
Macjood Bibi complainant, mother of the deceased.
' Some days before the occurrence Mushtaq Ahmad respondent had threatened to kill Imtiaz Ahmad and his mother Mst. Maqsood Bibi as well, hence this occurrence.
5. The version of main occurrence as stated by the prosecution is that consequent upon the threat of Mushtaq Ahmad respondent that he will kill his step-brother Imtiaz Ahmad and step-mother, the complainant, and shall not give them share in the house left by his father Sultan Ahmad, the complainant shifted to the house of her father Rehmat Ullah P.W. In Chak No,70/D.B. With her children. Two/three days, thereafter, Muhammad Ali, brother of her husband came to her and took her back to Yazman Town with the assurance that he will arrange to give them their share in the house. In the morning of the fateful day, the Panchayat divided the house and gave share of Mst.
Maqsood Bibi and her children to them. At about Asarwela, Imtiaz Ahmad deceased was playing near the house. Rehmat Ullah, Muhammad Akram, Ch. Munir Ahmad and Qamarud-Din P.Ws. Were sitting in the shop of Munir Ahmad near the house of the deceased when Mushtaq Ahmad and Tahir Mehmood respondents took Imtiaz Ahmad with them on the pretext of givig him sweet. At about Ishawela, Mushtaq Ahmad and Tahir Mehmood came back but Imtiaz Ahmad did not turn up. On this Rehmat Ullah father of Mst. Maqsood Bibi and others asked the respondents about Imtiaz Ahmad but they expressed ignorance. Mst. Maqsood Bihi and other inhabitants of the locality carried search of Imtiaz Ahmad whole the night but could not trace him. On the following morning, Mushtaq Ahmad and Tahir Mehmood were again asked about Imtiaz by Mst. Maqsood Bihi, Muhammad Akram, Ch. Munir Ahmad and Rehmat Ullah P.Ws. After some hesitation, the respondents admitted to have killed Imtiaz Ahmad and buried his dead body in the sand dunes. On this the aforesaid P.Ws apprehended them and produced them before the police.Mst. Maqsood Bibi lodged F.I.R. Exh.P.E.
6. Muhammad Saeed, Inspector, P.W.15 arrested the respondents. He got removed blood-stained shirt Exh.P.6 and Shalwar Exh.P.7 from the person of. Mushtaq Ahmad respondent and took them into possession vide memo. Exh.P.K. Attested by Rehmat Ullah P.W.11 and Qamar-ud-Din (not produced). Mushtaq Ahmad then led to sand dunes in the area of Chak No,90/D.B. Wherefrom the dead body of Imtiaz Ahmad was recovered on his pointation. The dead body was taken into possession vide memo. Exh.PH attested by Rehmat Ullah P.W.11 and Asghar Ali (not produced). Tahir Mehmood led to the recovery of Chappal Exh.P.5/1-2 of the deceased, which was taken into possession vide memo. Exh.P.j., attested by Rehmat Ullah P.W.11 and Qamar-ud-Din (not produced).
On 1-4-1988, Mushtaq Ahmad respondent got recovered blood-stained Churri Exh.P.4 from a wheat crop, which was taken into possession vide memo. Exh.P.G. Attested by Muhammad Akram P.W.9 and Qamar-ud-Din (not produced). The recovery memoranda were prepared and signed by Muhammad Saeed, Inspector, P.W.15. Serologist report Exh.PP shows that shirt Exh.P.6, Shalwar Exh.P.7 and Churri Exh.P.4 were stained with human blood.
7. On 28-3-1988, Dr.Muhammad Sher-uz-Zaman, P.W.1, conducted postmortem examination on the dead body of Imtiaz Ahmad. He found following injury:- "An incised wound 9 c.m. In length x 3 x 3 c.m., extending from mid of left side of neck to right side of neck just above the right clavicle at its mid level. Right carotid artery, muscles trachea and oesophagus were cut in the line of wound."
'In his opinion, the death had occurred due to excessive haemorrhage and shock as a result of the injury found on the person of the deceased which was caused by sharp-edged weapon and was sufficient to cause dcath in the ordinary course of nature.
8. To prove its case, prosecution produced 13 witnesses. There is no direct evidence of the murder of Imtiaz Ahmad by the respondents. Mst. Maqsood Bibi P.W.8, Muhammad Akram P.W.9, Ch. Munir Ahmad P.W.10 and Rehmat Ullah P.W.11 have deposed about the extra-judicial confession made before them by the respondents. Mst. Maqsood Bibi P.W.8, Ch. Munir Ahmad P.W.10, Rehmat Ullah P.W.11, Rahim Bakhsh P.W.12, Muhammad Aslam P.W.13 and Maqsood Ahmad P.W.14 claim to have seen the deceased last with the respondents. Muhammad Akram P.W.9, Rehmat Ullah P.W.11 have deposed about the recovery of the dead body, blood-stained clothes of Mushtaq Ahmad respondent, Chappal of the deceased and the dead body of the deceased on the pointation of the respondents. Mst. Maqsood Bibi and Rehmat Ullah P.W. Have narrated the alleged motive. The rest of the evidence is of formal nature.
9. When examined under section 342, Cr.P.C., the respondents denied all the incriminating circumstances.They raised plea of false implication. They did not produce any evidence in defence.
10. Disbelieving the motive, extra-judicial confession, recovery, evidence of last seen, the trial Court has acquitted the respondents.
11. Learned Assistant Advocate-General assisted by the learned counsel for the complainant contended that the prosecution has successfully brought home the guilt to the respondents; that the evidence of extra-judicial confession, of incriminating recoveries and of last seen, have wrongly been disbelieved by the trial Judge and that the acquittal of the respondents is based on surmises and conjectures.
12. We have anxiously attended to the arguments addressed by the learned Assistant Advocate- General and have carefully reviewed the entire evidence that has been produced by the prosecution, the statements of the respondents recorded under section 342, Cr.P.C. And the circumstances appearing in the case. We do not agree with the learned A.A.-G. We find that Muhammad Akram P.W.9 has stated that the dispute about the division of the house between the parties was settled in the Panchayat and the house was divided with the consent and compromise between the parties. So, there was no cause for annoyance to respondents/accused against the deceased and his mother. The prosecution evidence relating to extra-judicial confession and last seen suffers from infirmity such as material contradictions and dishonest improvements. The F.I.R.
Shows that the confession made by the respondents was joint. To avoid the legal consequences of a joint confession, the witnesses namely Mst. Maqsood Bibi, Muhammad Akram, Ch. Munir Ahmad and Rehmat Ullah made different statements. Mst. Maqsood Bibi stated that Mushtaq Ahmad respondent had confessed that he and Tahir Mehmood had killed Imtiaz Ahmad and buried the dead body in the sand dunes. In cross-examination she was confronted with the F.I.R. Wherein she had not stated so. Muhammad Akram P.W.9 stated that first of all Tahir Mehmood confessed that he and Mushtaq .Ahmad had killed Imtiaz Ahmad deceased and had buried the dead body in the sand dunes. Mushtaq Ahmad also followed him and admitted that they had murdered Imtiaz Ahmad and had buried his dead body in the sand dunes. He was confronted with his statement under section 161, Cr.P.C. Wherein he had not stated so. Ch. Munir Ahmad P.W. Stated that Mushtaq Ahmad confessed to have killed the deceased and Tahir Mehmood had kept silent and did not tell anything. Rehmat Ullah P.W.11 stated that Mushtaq Ahmad had confessed to kill Imtiaz Ahmad and buried his dead body in the sand dunes. He further stated that Tahir Mehmood also admitted that they had murdered Imtiaz Ahmad and buried his dead body in the sand dunes. He was confronted with the statement recorded under section 161, Cr.P.C, wherein he had not stated so. The statements of the aforesaid witnesses of the extra-judicial confession recorded under section 161, Cr.P.C. Reveal that the confession allegedly made by the respondents before them was joint. As for the last seen evidence, Mst. Maqsood Bibi stated that the Panchayat had given share of the house to her in the morning and it was at Asarwela when the respondents took away Imtiaz Ahmad when the latter was playing near his house and the witnesses namely Muhammad Akram, Rehmat Ullah and Munir Ahmad were present in the shop of Munir Ahmad P.W. Whereas in the F.I.R. She had stated that it was at the time of the decision with regard to her share that the respondents took Imtiaz Ahmad away with them on the pretext of giving him sweets. She was confronted with the F.I.R., wherein she had not stated that Imtiaz Ahmad was playing near the house when the respondents took him with them. Muhammad Akram is silent on the point of the abduction of the deceased by the respondents. He stated that after Maghrib prayer time there was alarm that Imtiaz Ahmad was missing. Ch. Munir Ahmad P.W.10 stated that at 4.00 p.m., he, Akram and Rehmat Ullah P.Ws. Were sitting close to the house when the respondents took the deceased with them on the pretext of giving him the sweets. In his statement before the police, the witness had stated that at about 4.00 p.m., a Panchayat for the settlement of the dispute over the house was going on when the respondents took away the deceased with them. He was duly confronted with his statement under section 161, Cr.P.C. Rehmat Ullah P.W. Stated that it was much after the decision of the dispute over the share of the house that the respondents took away the deceased with them. It may be noted that he had not stated so in his statement recorded under section 161, Cr.P.C. He has categorically stated that as for the recovery of the dead body from the sand dunes, both the respondents had gone to the place wherefrom the dead body was recovered That being the position the recovery cannot be specifically attributed to Mushtaq Ahmad respondent. Blood- stained Chhurri was recovered from wheat crop field. It is in evidence that the witnesses and the police officials had been searching for the Chhurri in the field before the same could be recovered on the potation of Mushtaq Ahmad respondent. In this view of the matter, the possibility that the blood-stained Chhurri might have been placed in the wheat crop by the prosecution witnesses or the police officials, cannot be excluded. The remaining evidence is not sufficient enough to connect the respondents with the murder of the deceased The learned trial Judge has applied his conscious mind to the relevant evidence and has appreciated the same in accordance with the guiding principles laid down by the superior Courts. On our independent assessment, we feel that the prosecution has not been able to prove its case beyond reasonable doubt. It is well-settled that once an accused person is acquitted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for interference with the same, which we do not see in the case in hand.
' For what has been said above, there being no merit, the appeal is dismissed in limine.