MUHAMMAD MUNIR KHAN J.- These Criminal Appeals No:54 of 1987 by Iqrar Ahmad and 51 of 1987 by Ali Akbar appellants and the connected Murder reference No:137 of 1987 arise from the judgment of learned Additional Sessions Judge, Multan whereby he on 3.3.1987 convicted them under various sections of Pakistan Penal Code and sentenced them as under:- Five years R.I. And a fine of Rs.1000/- in default thereof one year R.I. Each.
Death and a fine of Rs.10,000/-, in default thereof two years R.I. Each.
Four years R.I. And a fine of Rs.1000/- in default thereof one year R.I. Each. It was directed that the fine if recovered be paid to the legal heirs of the deceased.
U/S.364/34 P.P.C, for the abduction of fida Hussain.
U/S. 302/34 P.P.C, for the murder of Fida Hussain.
U/S. 201/34 P.P.C. {{TEXT MISARRANGED}} The sentences were to run concurrently.
2. The occurrence of abduction of Fida Hussain in order to do away with him took place on 12.10.1985 at evening time, in Mauza Bohar Mahtam at a distance of l2 miles from P.S. Saddar Multan. F.I.R. Ex.PC, was lodged by Mst: Iqbal Mai, P.W.5, sister of the deceased on 16.10.1985 at 9.15 a.m. At P.S. Saddar Multan and was recorded by Haji Muhammad Abdul Lateef, Inspector, P.W.8.
3. According to the prosecution version, Iqrar appellant had illicit intimacy with Mst: Khurshid Mai.
Eight days before the occurrence, Iqrar appellant had told Mst:Iqbal Mai P.W.5 that her brother, the deceased had outraged the modesty of Mst: Khurshid Mai, so in order to take revenge from the deceased, Iqrar appellant and Ali Akbar deceitfully took away the deceased from his house on 12.10.1985 at Shamwela on the pretext of taking meals. The deceased did not return home. So Mst: Iqbal Mai went to the house of Iqrar appellant to know the where-abouts of his brother. Iqrar appellant assured that Fida Hussain would come after some-times. After waiting for four days, Mst: Iqbal Mai approached Iqrar and Ali Akbar appellants. This time Iqrar disclosed that since Fida Hussain had molested Mst: Khurshid Mai, so, he has taken revenge from him. Thereafter, Mst: Iqbal Mai went to Muhammad Ayyub P.W. And told him about the confession made by Iqrar appellant.
She alongwith Ayyub P.W. Went to the police station and lodged report Ex.PC. In the mean-time, the appellant made extra-judicial confession before Zulfiqar P.W.7 and Muhammad Nawaz (not produced). So on being produced by Zulfiqar P.W., Haji Muhammad Abdul Latif Inspector arrested Iqrar on 16.10.1985. On the same day, onhis pointation, dead body of Fida Hussain was recovered from his house and was taken into possession vide memo Ex.PE attested by Muhammad Mushtaq P.W.6 and Muhammad Nasir (not produced) and Haji Muhammad Abdul Lateef P.W.8. On 17.10.1985, he led to the recovery of blood stained hatchat Ex. P7, which was taken into possession vide memo E.x.PH attested by the same witnesses. On 17.10.1985, Ali Akbar appellant was arrested by Haji Muhammad Abdul Lateef, Inspector, P.W.8. On 18.10.1985, he got recovered blood stained dagger Ex.
P8, which was taken into possession vide memo Ex. P.I attested by Muhammad Mushtaq P.W.6, Zulfiqar P.W.7 and Haji Muhammad Abdul Lateef, Inspector, P.W.8. On 17.10.1985, Dr. Riaz-ud-Din, P.W.3 conducted post-mortem examination on the dead-body of Fida Hussain. He found following injuries on the dead-body:-
1. "An incised wound on the front of root of neck 6 cm x.2 mm x skin deep transverse in direction. The edges of the wound were deeply stained.
2. An. Incised wound on the front of left neck at the lower most part of the chin 30 cm x (x cm x bone deep oblique in direction, the edges of the wound were gaping and deeply stained. The lower jaw was cut at the chin. All the structures on the left side of the neck (nerves and blood vessels etc) were cut in the way.
3. An transverse incised wound on the central part of the neck just below the adams1 apple 8 cm x 1 cm x muscle deep which was half on either side of-the mid line, the edges of the wound were gaping and deeply stained.
4. An oblique incised wound on the back of left thigh 26 cm x 10 cm x muscle deep, the edges of which were gaping and deeply stained.
5. An oblique incised wound on the back of right thigh 28 cm x 10 cm x muscle deep with gaping and deeply stained edges.
In his opinion, the death was due to shock and external haemorrhage as a result of injurys No:2 which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged Weapon. The probable time between injuries and death was 15 minutes and between death and postmortem was 3-5 days.
4. To prove its case prosecution produced 9 witnesses. There is no direct evidence of the murder of the deceased. Mst: Iqbal Mai P.W.5 and Muhammad Mushtaq P.W.6 gave the evidence of. Last seen.
They stated that it was in their presence that the appellants took away Fida Hussain deceased from his house on the pretext of taking meals. Zulfiqar P.W.7 is the witness of extra-judicial confession allegedly made by the appellants before him. He stated that both the appellants had confessed to have killed the deceased by hatchet and dagger blows. Muhammad Mushtaq P.W.6, Zulfiqar P.W.7 and Haji Muhammad Abdul Lateef, Inspector, P.W.8 have supported the recovery of the dead-body on the pointation of Iqrar appellant, the recovery of blood stained hatchet Ex. P7 from Iqrar and the recovery of blood stained dagger Irum Ali Akbar appellant. Chemical Examiner Report Ex.PP shows that the hatchet and dagger were stained with human blood. Serologist Report Ex.PC) shows that the samples were not sufficient to determine the origin of blood. Dr. Riaz-ud-Din, P.W.3 has proved the post-mortem examination report of the deceased. Mst: Iqbal Mai has also stated that Iqrar appellant had declared before her that since Fida Hussain molested Mst: Khurshid Mai, therefore, he had taken the revenge from him. The rest of the evidence is of formal nature.
5. When examined under section 342 Cr.P.C, the appellant denied all the incriminating circumstances. They raised the plea of false involvement due to enmity. They give evidence on Oath in disproof of the charge; against them. They did not produce any witness in defence.
6. Believing the evidence of extra-judicial confession, last seen and of the incriminating recoveries, the trial Court has convicted and sentenced the appellants as stated above.
7. Learned counsel for the appellants contended that there is no direct evidence of the murder against the appellants; that Zulfiqar P.W.7, the witness of exta-judicial confession, was found as false witness by the trial Court. The evidence of last seen is interested and the incriminating recoveries are fake. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
8. We have anxiously attended to the arguments of the learned counsel for the parlies and have reviewed carefully the evidence produced by the prosecution, the circumstances appearing in the case and the statements made by the appellants under section 342 Cr.P.C, and 340(2) Cr.P.C. We feel that the prosecution has not been able to prove its case beyond reasonable doubts. There, is no ocular evidence in this case. The prosecution rests on the evidence of extra- judicial confession allegedly made by the appellants before Zulfiqar P.W.7 and the circumstances of last seen and incriminating recoveries. From the aforesaid state of affairs, it is very much obvious that the evidence of extra-judicial confession furnished by Zulfiqar P.W.7 is the main pillar of the prosecution case. There were two witnesses of the alleged extra-judicial confession namely Zulfiqar P.W.7 and Muhammad Nawaz. Muhammad Nawaz has not been produced. The trial Court itself has convicted Zulfiqar P.W.7 for purgery. Strangely enough, despite convicting him for making false statement relating to the alleged extra-judicial confession, the trial Court has believed him. On our independent assessm ent of his statement, we feel that there are reasons to doubt that the appellants had made extra-judicial confession before P.W.7 or that the same as voluntary and true.
According to the statement of Zulfiqar P.W.7, the confession was made by Iqrar appellant after 6 days of the murder and thereafter he was produced before the police. Where Muhammad Mushtaq P.W.6 staled that; "Police arrived at the spot at about 10/11 A.M. Both the accused were sitting in their houses and they were arrested by the police".
If this is true then the Question of the appellants appearing before Zulfiqar P.W.7 and making extra- judicial confession before him does not arise. Zulfiqar P.W. Stated that Iqrar and his father had entreated the name of God to save him. In his statement Ex.DB, Zulfiqar P.W. Had stated that firstly Ghulam Muhammad, father of Iqrar accused informed him that his sons Iqrar and Ali Akbar had committed the murder of Fida Hussain Bhatti and he sought for help. For all these reasons, we are convicted that no implicit reliance can be placed on the evidence of extra-judicial confession.
9. Adverting to the incriminating recoveries we find that according to the prosecution, the dead- body was recovered on the fifth day of the disappearance of the deceased, whereas Muhammad Mushtaq' P. W.6 stated that the dead-body was recovered on the third day of the departure of the deceased with the, accused. He further stated that at the time, of recovery both the accused were, arrested and hand-cuffed. One of the hand cuffs of each of the accused, was removed and they were allowed to dig out the dead-body from the ditch by means of a spade and that about 50 persons Were present there at that time. This shows that the dead- body was not recovered on the exclusive pointation of Iqrar appellant and that although 50 persons were present there yet Muhammad Mushtaq P.W.6, who is the first cousin of the deceased has been produced to prove the recovery of the dead-body. The dead-body was allegedly recovered on 16.10.1985 on the pointation of Iqrar appellant. Strangely enough, the hatchet was not recovered on that day and it was recovered on the following day. Serologist report shows that the samples being not sufficient, the origin of the blood could not be determined. Mst: Iqbal Mai is the sister of the deceased. On her own showing about 8 days before the occurrence, Iqrar appellant had complained that the deceased had molested and teased Mst: Khurshid Mai. In this view of the matter, it does not stand to reason that she would have allowed his brother to accompany Iqrar at Shamwela. Mst: Iqbal Mai has stated that after the accused had confessed to have taken the revenge fr6m Fida Hussain. She went to Ayyubid; and told him about the confession made by Iqrar appellant. However, Ayyub P.W.
Has not been produced by the prosecution. If the evidence of extra-judicial confession and of recovery of dead-body on the pointation of Iqrar appellant is excluded from consideration then the remaining evidence is not sufficient to exclude the hypothesis of the innocence of the appellants.
Pursuant to the above discussion, the appeals are accepted and giving them the benefit of doubt, the appellants are acquitted of the charges. They shall be released forthwith, if not required to be detained in some other case.
Death Sentence is not Confirmed.