' Today only a miscellaneous application seeking suspension of the sentences awarded to the two appellants bearing Criminal Miscellaneous No,2 of 1990 was fixed after notice.
2. It is 9-30 a.m. And this is the only matter left out of the cause list for today.
3. On my inquiry, the learned counsel representing the two applicants in the above-mentioned Criminal Miscellaneous submits that he would be prepared to argue the main appeal if the same is taken up today for final disposal. The learned counsel for the State has also no objection to the hearing of the main appeal today.
4. Let the main appeal be heard today instead of disposing of the miscellaneous application which is also likely to consume a substantial period of time for its disposal.
5. Manzoor and Bashir appellants who are real brothers inter se were tried for the murder of one Mushtaq Ahmad alongwith their third brother, namely, Sikandar Hayat, their father Muhammad Ali, their Phupha Sultan and their Phupizad, namely, Muhammad Nawaz, who also happens to be the husband of their sister.
6. Through his judgment dated 23-4-1990, a learned Additional Sessions Judge at Gujrat acquitted Muhammad Ali, Sikandar Hayat, Sultan and Muhammad Nawaz of the charges levelled against them after extending to them the benefit of doubt but found Manzoor and Bashir appellants guilty under section 302/34, P.P.C. And sentenced each one of these two convicts to suffer imprisonment for life and to pay a fine of Rs,20,000 in addition thereto or to suffer six months' S.I. In default of payment of this fine. These two were also found guilty and convicted under section 201, P.P.C. And each one of them was punished with seven years' R.I. And a fine of Rs,5,000 or sufferance of six months' S.I. In case of non-payment of this fine. Half of the amount of fine imposed on the convicts above-said was ordered to be paid to the heirs of the deceased as compensation. Both the sentences of imprisonment were, however, ordered to run consecutively.
7. Manzoor and Bashir appellants challenge these convictions and the sentences recorded against them through Criminal Appeal No,254 of 1990.
8. The F.I.R. In this case which is Exh.PA./1 was recorded on a written application dated 21-1-1987 of Imtiaz Azhar (P.W.2) who is a real brother of Mushtaq deceased and who had alleged therein that Mushtaq deceased used to reside at the Dera of the father of the two appellants and had not visited his family who lived in Mauza Madray for the last about six months.
9. The complainant had further disclosed that he inquired about the said Mushtaq deceased from Muhammad Ali (the acquitted accused) about one month prior to the recording of the F.I.R. And had been informed that only Manzoor appellant and Sikandar (the acquitted accused), could tell him of the whereabouts of Mushtaq deceased. It was further alleged that the complainant thereafter went to the Courts at Gujrat and met the said two accused persons who had come there in connection with a case under section 302, P.P.C. And who informed the complainant that they had sent Mushtaq deceased for some urgent piece of work who was likely to return after some time.
10. The complainant claimed through the F.I.R. That he felt dissatisfied with the explanation offered by Muhammad Ali, Sikandar and Manzoor abovesaid and started searching for Mushtaq deceased of his own.
11. He further claimed that in the process he came across Asif (given up P.W.) and Ghulam Muhammad (P.W.6) who informed him that about 5/6 months earlier, they were going to the house of Muhammad Ali accused at night for some personal work and had met these accused persons on the way who were accompanied by Mushtaq deceased and were informed that all of them were looking for their lost buffaloes and would return after 2/3 hours, at which the said Asif and Ghulam Muhammad P.Ws. Started waiting for them at the Dera of Muhammad Ali and on their return, Mushtaq deceased was not with them and on their inquiry, the accused persons had told them that Mushtaq deceased had gone away to his brother in Mandi Bahauddin.
12. The complainant further claimed that on hearing this story from these two P.Ws. He became worried and went to the Dera of Muhammad Ali accused alongwith Saee Muhammad (given up P.W.), Faiz Muhammad (P.W.1) and Muhammad Hussain (P.W.5) and inquired from the accused persons about Mushtaq deceased who after some reluctance confessed that they had murdered Mushtaq because he had developed illicit liaison with Mst. Bashiran, a daughter of Muhammad Ali accused and that these accused persons further informed them that they had even murdered Mst.
Bashiran above mentioned and one Mst. Rasoolan who used to assist Mushtaq and Mst. Bashiran in this immoral affair.
13. After the registration of this F.I.R. On 21-1-1987, all the six accused persons abovementioned including the two appellants were arrested on 25-1-1987 whereafter Manzoor appellant allegedly led to the recovery of one identity card (Exh.P.4) of Mushtaq deceased which was buried in earth in a deserted place near link canal of Qadarabad. This happened on 26-1-1987. He had also pointed out the spot on the said canal on 27-1-1987 where he had allegedly thrown the dead body of Mushtaq deceased.
14. Bashir appellant had allegedly led to the recovery of wearing apparel of the deceased on 7-2- 1987 from his Dera which consisted of a Salooka, a Chadar and a pair of shoes marked respectively as Exhs.P.1 to P.3.
15. Further prosecution evidence against the accused persons consisted of the evidence relating to extra-judicial confession made by all the accused persons on 19-1-1987 before Faiz Ahmad (P.W.1) and Muhammad Hussain (P.W.5). The third witness relating to this piece of evidence, namely, Sane Muhammad was given up.
16. Ghulam Muhammad (P.W.6) was examined as having last seen Mushtaq deceased in the company of the accused persons.
17. This was thus the entire prosecution case against the accused persons who had pleaded their innocence to the charges in question and had attributed their implication On account of enmity and suspicion.
18. The defence had also produced Ghulam Rasool son of Roshan and Ghulam Rasool son of Khushi Muhammad as D.W.1 and D.W.2 respectively who had deposed that Mushtaq deceased was not employed with the accused persons as a labourer, a partner or a contractor.
19. So far as the evidence relating to the extra-judicial confession is concerned, it was specifically stated through the above-mentioned F.I.R. That the said was a joint confession made by all the six accused persons. Although Muhammad Hussain (P.W.5) claimed in his statement at the trial that all the six persons had made this confession one after the other but the same was obviously an afterthought and an improvement made at the trial and has to be ignored.
20. This being so, no reliance can be placed on this evidence relating to extra-judicial confession and the same is accordingly rejected.
21. The prosecution has claimed that after being murdered by the accused persons, the body of Mushtaq deceased was thrown in the Qadarabad link canal which body was obyiously never recovered.
22. The prosecution further claims that an identity card of Mushtaq deceased was retained and preserved by Manzoor appellant and was produced before the Investigating Officer during the course of investigation. Likewise the prosecution also claims that Bashir appellant had led to the recovery of the clothes of the deceased after his arrest.
23. These recoveries do not inspire confidence. It is not believable that having murdered Mushtaq deceased, Bashir appellant or any of his co-accused would strip him of his clothes before the dead body was thrown into the canal and would retain these clothes to offer to the Investigating Officer to be used against them as a piece of evidence. Similar is the position of the retention and the consequent recovery of the identity card of Mushtaq deceased at the instance of Manzoor appellant.
24. Consequently, the evidence regarding the recoveries of these pieces of articles at the instance of the two appellants is also rejected.
25. This leaves us with the last seen evidence which has been offered by Ghulam Muhammad (P.W.6). He is a close relative of the complainant party. He has not offered any explanation of his visit to the Dera of Muhammad Ali accused on the night that he had allegedly gone there and had seen the deceased in the company of the accused persons. This piece of evidence is also not reliable.
26. Having thus analysed the prosecution evidence, I find that the prosecution case against the two appellants is not free from doubt, the benefit of which has obviously to go to the two appellants.
27. Consequently, Criminal Appeal No,254 of 1990 is allowed and the convictions and sentences recorded against the two appellants through judgment, dated 23-4-1990 of a learned Additional Sessions Judge at Gujrat arc set aside.
28. Both the appellants are thus acquitted of the charges levelled against them. They are in custody. They shall be set at liberty forthwith if not required to be detained in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.