' RASHID AZIZ KHAN, J.--- Shaukat Ali, Muhammad Saleem and Muhammad Riaz were sent by Police Station Kamalia, District Toba Tek Singh, for trial for the murder of Shaukat Ali's father Hassan Muhammad. Additional Sessions Judge, Toba Tek Singh, vide his judgment dated 1-2-1987 convicted and sentenced all the accused to death. The trial Court, however, did not award any fine or compensation. Muhammad Saleem and Muhammad Riaz have appealed jointly. Shaukat All has appealed separately. The case is also before us for the confirmation of death sentences. All these matters will be disposed of by this judgment.
2. According to the allegations contained in the F.I.R., lodged by Liaqat Ali, his father. Hassan Muhammad was in the business of poultry farm and powerlooms. They were four brothers. Except for Shaukat All (convict) the rest were minor. About six months before the registration of the present case, said Shaukat All committed the theft of Rs,2 lacs from his house and ran away. He came back home after having spent the money. It was due to this reason that the first informant's, father disassociated Shaukat All from the business and stopped his pocket money as well. Shaukat Ali used to quarrel with his father on this account. Between the night of 15/16-4-1985, first informant's father Hassan Muhammad went to his poultry-farm, situated within field No, 54/2 and slept there, who did not come back in the morning. They thought that he must have gone to Faisalabad for some urgent piece of work. They kept waiting till evening. When he did not come, they got worried and started looking for him but he could not be found. On 20-4-1985 one Khair Din came to the house of the first informant in the morning and told him that last night Shaukat Ali, son of Hassan Muhammad, with Muhammad Saleem and Riaz came to him. At that time, one Abdul Rehman was also sitting with him. They confessed that they had murdered Hassan Muhammad with Durmat and Danda. After the murder they had buried the dead body.
3. Occurrence had taken place between the night of 15/16-4-1985 in the poultry-farm of Hassan Muhammad, deceased, situated in Chak No, 54/2 Takrrah, four miles from Police Station Kamalia.
F.I.R. Exh.P.H. Was recorded by Sikandar Hayat, S.H.O. (P.W.10) on 20-4-1985 at 7-25 a.m. On the statement of Liaqat Ali, P.W.
9.
' Sikandar Hayat, S.H.O., Police Station Kamalia, after recording F.I.R. Exh.P.H. Deployed Ali Ahmad, S.1., for the arrest of the accused persons, who produced them before him the same day and he formally arrested them. He interrogated Shaukat Ali and Muhammad Saleem about the dead body, who took the police party to the poultry-farm of Hassan Muhammad, deceased. Muhammad Saleem, appellant firstly pointed out a place in Killa No, 5, Square No, 34, where they had buried the dead body. The investigating officer sent Muhammad Saleem aside and then interrogated Shaukat Ali, appellant, who also pointed out the same place. He got the said place dug out by one Ramzan and another and the dead body of Hassan Muhammad was taken out, which was identified by Ghafoor, Boota, Liaqat and Ramzan, P.Ws. He prepared injury statement Exh.P.I. And inquest report Exh.P.W.6/A of the deceased and sent the dead body for autopsy. Thereafter, he visited the place of occurrence and prepared site plan Exh.P.L.J. He also prepared site plan Exh.P.K. Of the place of recovery of the dead. Body. He got site plans Exhs.P.A. And PA./1 prepared from the draftsman. On the same day he took into possession the last-worn clothes of the deceased vide memo. Exh.P.B.
' Shaukat Ali, accused, on 28-4-1985 got recovered danda P.5 from a room situated in the poultry- farm which was secured vide memo. Exh.P.C. He got the said memos. Attested from the witnesses.
On the same day, Muhammad Saleem got recovered Rs,500 Exh.P.7/1-5, a receipt and a form P.8 and P.9, which were secured vide memo. Exh.P.E. On the same day, Muhammad Riaz got recovered Durmat P.6 from his house, which was secured vide memo. Exh.P.D. He got the said memos.
Attested from the witnesses. He recorded the statements of the witnesses, and after completion of the investigation, challaned the accused.
4. Dr. Muhammad Akhtar Hussain Chatha, S.M.O., T.H.Q. Hospital, Kamalia (P.W.6), on 20-4-1985 conducted the post-mortem examination on the dead body of Hassan Muhammad and found ligature marks present around the neck along with parna. The dead body was swollen. The tongue was protruding. Left eye was protruding and right eye was crushed. Skin was peeling off the body.
The body was petrifying and rigor mortis was absent. He further observed a contused wound 4 c.m. x 4 c.m. On the right frontal region of skull along with right eye. Nose was crushed. Left knee joint and left hand were blue. The skull was fractured. In his opinion, the death had occurred because of aspheyxia due to strangulation along with fracture of right frontal bone. Injury No, 1 and strangulation were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused with a blunt weapon.
5. The prosecution in support of its case produced ten witnesses in all. Ghulam Mustafa, Patwari, P.W.1, had prepared site plan Exh.PA. And Exh.PA./1 on the direction of the police. Manzoor Ahmad, P.W.2 had identified the dead body of the deceased at the time of post-mortem examination.
Muhammad Sarwar, Constable, P.W.3 had escorted the dead body for autopsy. Abdul Rehman, P.W.4, had deposed about the extra-judicial confession of the appellants. According to him, he was sitting in the house of one Khair Din when the appellants came and confessed of their guilt. Khair Din, P.W.5, deposed about the extra-judicial confession of the appellants which they had made at his house. According to him, Abdul Rehman was present with him when the said confession was made. The doctor who conducted the post-mortem examination appeared as P.W.6. Abdul Ghafoor, P.W.7, witnessed the recovery of dead body at the pointation of Muhammad Saleem and Shaukat Ali, appellants. He had also identified the dead body before the investigating officer. All Ahmad, P.W.8, the S.I., had arrested Shaukat Ali and Muhammad Saleem appellants on 20-4-1985.
Thereafter, he had arrested Riaz appellant on 22-4-1985. Liaqat Ali, P.W.9, was another son of the deceased. He had lodged the. F.I.R. And corroborated the testimony of Khair Din who had informed him about the extra-judicial confession. The case was investigated by Sikandar Hayat, S.H.O., P.W.10.
' At the conclusion of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. Wherein they refuted the prosecution allegation and pleaded innocence. Shaukat Ali, appellant, in answer to a question further stated that his elder brother Liaqat P.W. Was married to the sister of Manzoor P.W. And they conspired against him and other brothers in order to deprive them of their inheritance. They, however, declined to appear on oath in their defence, but produced two defence witnesses.
' Roshan Din, D.W.1 was brother of the wife of Hassan Muhammad, deceased. He stated that he learnt about the disappearance of his brother-in-law and came to the house of his sister.
Thereafter, while he was going to the house of his other sister and while passing near the poultry- farm of Hassan Muhammad, deceased, he found a wagon with three police officials with Liaqat Ali, P.W. They took out the dead body of Hassan Muhammad, lying on a cot in a room, and obtained the signatures of Ilyas, D.W. According to him, the appellants were innocent and were involved falsely. Muhammad Ilyas, D.W.2, stated that he joined the investigation. He found three police officials near the poultry-farm of Hassan Muhammad, deceased, therefore, he also joined them.
Liaqat Ali, P.W. Was also there. Liaqat, P.W. Opened the lock of the room situated at the poultry-farm where the dead body was lying on a cot. He signed the papers at the spot.
6. It was contended by learned counsel for the appellants that the case against them was extremely doubtful. Argued that since there was no direct evidence available in the instant case and the prosecution failed to bring circumstantial evidence which could prove the guilt of the appellants beyond doubt. Argued that the motive in the instant case was not proved. It was in evidence that the appellant Shaukat Ali was still living in the house and looking after the business with his father. Argued that no reliance could be placed on the extra-judicial confession because the witnesses did not inspire confidence at all and their demeanour rendered their testimony untrustworthy. The contentions were opposed by learned counsel for the State as well as for the complainant. According to him, the case was got registered by real brother of Shaukat Ali, appellant who had no ill-will or motive. It was asserted that the witnesses of extrajudicial confession were independent and trustworthy. Argued that the dead body was recovered on the pointation of the appellants which went a long way to prove their guilt.
7. We have heard the learned counsel at length and gone through the evidence with their assistance. In the instant case, there is no ocular account. The prosecution tried to establish its case on the basis of circumstantial evidence. The prosecution in order to establish its case relied upon: the evidence of motive, extra-judicial confession, recoveries effected at the instance of the appellants and the recovery of the dead body.
' The motive in the instant case, as disclosed by Liaqat Ali, P.W.9, was to the effect that Shaukat Ali, son of the deceased used to work with him. He committed the theft of Rs,2 lacs of his father and ran away. After spending the entire amount, he came back. His father was annoyed because of that and stopped his maintenance allowance. On this account, Shaukat Ali used to quarrel with his father. The witness was cross-examined at length on this point. In answer to a question, he stated that he did not know the name of any servant working at the poultry-farm because his younger brother Shaukat Ali, appellant, used to work at the poultry-farm and he would know the name of any servant. He further admitted that he was not aware whether his father had disassociated Shaukat Ali, appellant, from the business or not. He further admitted that Shaukat All appellant used to bring milk of the buffaloes from the poultry-farm to the house. A perusal of the statement indicates that Shaukat Ali, appellant was still working with his father at the poultry-farm. He had not been turned out of his house as he was the one who used to take the milk of the buffaloes from the poultry-farm to the house. In these circumstances, the assertion of the prosecution that Shaukat Ali had committed a theft of Rs,2 lacs of his father and therefore was turned out is not proved.
' The prosecution produced Abdul Rehman and Khair Din, P.Ws.4 and 5, respectively to prove the extra-judicial confession alleged to have been made by all the appellants. According to Abdul Rehman, P.W.4, he was sitting in the house of Khair Din, P.W. When at about 10 p.m., Shaukat, Saleem and Riaz, appellants, came to the house of Khair Din. They told Khair Din that they wanted to talk to him about some important matter. On enquiry, Shaukat Ali told Khair Din that his father had stopped his maintenance allowance and separated him from the business, therefore, he decided to commit his murder, and sought the help of his co-accused Muhammad Saleem and Riaz who agreed to join to him provided they were paid Rs,50,000 each. He told them that he would pay the said amount within two months of the commission of the murder. On the fateful night, his father slept at the poultry-farm where they also hid themselves. At about 2 a.m. At night when he was sleeping soundly, they came. Riaz appellant inflicted a blow on the head of Hassan Muhammad with a Durmat. Then Shaukat Ali strangulated him from the neck. Thereafter, Riaz gave another blow on the head of the deceased, and then he (Shaukat Ali again strangulated him from the neck.
Then he left the neck and gave a danda blow on the head of the deceased, with the result of which he died. Muhammad Saleem appellant searched the pockets of the deceased and took out Rs,500 and some papers. Thereafter Saleem appellant put a Patka around the neck of the deceased, Riaz and Shaukat put the chaddar of Hassan Muhammad around his legs and then all of them removed the dead body to a place where the refuse of poultry-farm was lying. They dug a pit and buried the dead body and covered it by putting the refuse of the poultry-farm on it. Thereafter they burnt the cot and the bedding of the deceased as the same had blood-stains, and scattered the ashes in the nearby fields. The witness was cross-examined at length. We have noticed that this witness made the following improvements:--
(a) he had not got it recorded before the police that Shaukat All told Khair Din that he wanted to talk to him regarding some important matter;
(b) it was also not got recorded by this witness that Shaukat had told them that he had run away from the house after taking Rs,2 lacs;
(c) it was also not recorded in his statement before the police that father of Shaukat appellant had stopped his maintenance allowance and turned him out of the business;
(d) it was also not recorded in his statement before the police that Saleem and Riaz had demanded Rs,50,000 each for joining hands and Shaukat promised to pay them after the needful was done;
(e) The fact of their hiding themselves in the poultry-farm was also not got recorded before the police;
(f) it was also not recorded in his statement before the police that after Riaz had given an injury, Shaukat appellant strangulated the deceased.
' We have noticed that the witness made improvements from his earlier statement to an extent which leaves no room for doubt that he has put up a new story from the one disclosed by him before the police. He was confronted with each and every improvement made by him, to which he could not give any explanation, so much so that it was not even recorded in the statement of this witness before the police that the appellants came to seek the help of Khair Din. The witness admitted that at that time none of the appellants was armed, yet they did not even try to apprehend them. A perusal of the statement of this witness leaves no room for doubt that he is not a truthful witness and has discredited himself by making improvements to such an extent that no reliance on his statement can be placed. Khair Din P.W.5, corroborated the statement of Abdul Rehman P.W.4 in all the details. He had also witnessed the recovery of Danda at the instance of Shaukat Ali, appellant, and Durmat at the instance of Riaz, appellant. He had signed the recovery memos as well. He was cross-examined at length. In cross-examination, he had admitted that his brother was married with a relation of Hassan Muhammad, deceased. He also admitted that he belonged to the bradri of the deceased. In the same breath he stated that he was not aware about the disappearance of Hassan Muhammad, deceased, till the appellants came and made a confessional statement before him. There is no explanation available in the statement why he did not make any effort to apprehend the appellants who were empty-handed, or informed the relations about the confessional statement. There is also no explanation why Saleem and Riaz appellants chose to make a confessional statement when according to the prosecution, they were hired assassins and there should not have been any pang of conscience as far as they were concerned. They had not yet received Rs, 50,000 each, and, in such circumstances, it is extremely unnatural to imagine that they also made a confessional statement. Keeping in view the improvements made by this witness, we hold that his statement does not inspire confidence and would not be safe to rely upon it. Therefore, the same is ruled out of consideration.
' Shaukat All and Muhammad Saleem, appellants allegedly pointed out the place where they had buried the dead body and at their instance the same was got recovered by the police. The recovery of dead body was witnessed by Abdul Ghafoor P.W.7 and Muhammad Boota P.W., who was not produced, apart from the Investigating Officer. According to Abdul Ghafoor, it was Muhammad Saleem and thereafter Shaukat who pointed out the place where they had buried the dead body. In cross-examination, he stated that he had learnt about the death of Hassan Muhammad, and thereafter followed the police from Truck Adda and witnessed the recovery of the dead body. He further stated that on that day he did not visit the police station but had come to the spot directly from the truck-adda. The statement has been contradicted by the investigating officer, according to which, this witness was present with him at the police station and from there on the disclosure of the appellants they came together to the spot. He further stated that there were no chicken in the poultry-farm of the deceased. This part of the statement has been contradicted by the complainant, according to whom there were about 4,000 chickens in the farm.
Apart from what has been discussed above, his statement does not inspire confidence because he stated that he learnt at the truck-adda that the appellants were going to get recovered the dead body but the investigating officer stated that he interrogated the appellants at the P.S. And they volunteered to get the dead body recovered. Thereafter, he directly came to the spot. In such circumstances, it is impossible that this witness should have known these facts. It is impossible that this witness could possibly know at the truck-adda about the disclosure of the appellants. In these circumstances, we hold it will not be safe to rely upon his statement.
Even otherwise, the entire story put up by the prosecution does not ring true because the investigating officer did not notice any Kassi or some other instrument with which the earth could be dug for purposes of burying the dead body. The prosecution version was that the appellants threw the poultry refuse on the dead body, yet the doctor observed that the body was clean and it did not have any dirt on it. The prosecution allegation was that after the incident the appellants burnt the cot as well as the bedding, yet the police did not observe any burn marks on the ground nor any ashes were detected in or around the spot. The appellants are alleged to have committed the murder at 2 a.m., and thereafter they dug a grave and buried the dead body, and then they burnt the cot and bedding. The whole process must have taken at least two hours and if after two hours they started burning the cot and the bedding, it should have been noticed by the people living in nearby vicinity. It is difficult to imagine that in such a short time they succeeded in burning into ashes every thing without leaving any trace. The Danda and Durmat recovered at the instance of the appellants cannot be of any use because they were not found stained with blood.
For what has been discussed above, we hold that the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, giving the benefit of doubt, we accept the appeal and set aside the convictions of the appellants. They shall be released forthwith if not required in any other case. The death sentence of all the appellants is not confirmed.