The appellants were tried under section 302/34, P.P.C. For the murder of Haji Ahmad Bakhsh by the learned Additional Sessions Judge, Jhang. The trial Judge vide his judgment dated 4-11-1989, convicted them thereunder and sentenced them to imprisonment for life and fine of Rs. 5000 each or in default one year's R.I. The convicts have appealed. Muhammad Ishaque complainant has filed Criminal Revision No. 630 of 1989, for the enhancement of their sentence. I propose to dispose of both the matters by this judgment.
2. The occurrence took place on 10-3-1988 at about morning time in the area of Basti Azimwali within the jurisdiction of Police Station Kotwali Jhang Sardar. F.I.R. Exh.P.A./1 was drawn up o-n the basis of statement Exh.P.A. Of Muhammad Ishaque which was recorded at Sessions Chowk Jhang b Ghulam Haider S.I. (P.W.13) at 8-00 a.m. The same day.
3. Muhammad lshactuc complainant (P.W.12) is the 'nephew of the deceased Haji Ahmad Bakhsh.
In his aforesaid statement Exh.P.A., before the police he stated that he was asleep in his house and his maternal uncle Haji Ahmad Bakhsh was asleep under a Chappar on his Dera to guard the cattle. At' about 5.00 a.m. One Sardar son of Muhammad Boota informed him at his house that his maternal uncle was lying seriously injured on the cot under his thatched hut when the complainant reached there, he saw that Haji Ahmad Bakhsh had one injury on the left side of his head and the second at the middle of his head and the third one on the backside of his head. He raised alarm, which attracted Nadir Ali Bhatti, Muhammad Din Arain and Waryam Arain to the place of occurrence. The deceased, who was then alive, was removed to the District Headquarters Hospital, Jhang. He took the medico-legal report of the injured, who was admitted in the hospital. He died soon thereafter. The complainant suspected that Mopal son of Roshan, Ramzan son of Faree, Haq Nawaz son of Ramzan and Zawar Hussain after conspiring together had committed the murder of the deceased.
4. The motive mentioned in the F.I.R. Is that a year before the occurrence, Ghulam Muhammad son of the deceased was missing. The complainant suspected the above-mentioned persons, resulting into enmity between the complainant and the above-mentioned persons, which has culminated in the present murder.
It may be observed here that the above mentioned persons were placed in column No.2 and instead the present appellants were tried for the murder of Haji Ahmad Bakhsh. It may further be observed that it is a blind murder and the prosecution case rests on the evidence of motive, circumstantial evidence of recovery of Sarya P.7 at the pointation of Abdul Ghaffar appellant and extrajudicial confession of the appellants before Hasnain Raza Shah P.W.4 and Muhammad Din (not produced).
5. Believing the prosecution version, the learned Judge of the trial Court convicted the appellants and awarded them the sentence indicated above.
6. The learned defence counsel contended, it was an unwitnessed crime,, the police under the influence of the local M.PA. Has falsely involved the appellants and has let off the real culprits, who were mentioned as suspects in the F.I.R. Which was lodged promptly. The episode of extrajudicial confession' allegedly made by the appellants is un-natural, highly improbable as the appellants had no legal compulsion to make extrajudicial confession before Hasnain Raza (P.W.4) and Din Muhammad (not produced), because neither the appellants were the accused named in the F.I.R.
Nor the Police was after them. Over and above this, the said Hasnain Raza is a partyman of the complainant and had the motive to depose falsely for the said reasons. Ahmad Bakhsh (P.W.11), the Wajtakker witness apart from being chance witness, definitely as. Per his own admission is partyman of the complainant. The recovery of Sarya at the instance of Abdul Ghaffar appellant is of doubtful nature, being witnessed by Khan Muhammad (P.W.10), who is an interested as well as chance witness of the occurrence. The finding of the Chemical Examiner that Sarya P.7 was found stained with human blood is open to serious objection, the blood cannot be detected after the lapse of so many months. There are glaring discrepancies between the evidence of Khan Muhammad (P.W.10), the, recovery witness and the evidence of Ghulam Haider (P.W.13). According to P.W.10, Sarya was recovered from the room on the pointation of Abdul Ghaffar appellant but as per admission of Ghulam Haider (P.W.13), Sarya was recovered from the room which was in the joint possession of the said appellant and his family.
7. Learned counsel for the State assisted by the learned counsel for the complainant adopted those reasons which prevailed with the trial Judge while, passing the impugned judgment.
8. In addition to that, learned counsel for the complainant submitted, there is no background of enmity between Hasnain Raza Shah (P.W.4) and Ahmad Bakhsh (P.W.11) hence their evidence cannot be easily brushed aside, when it is being corroborated by the recovery of blood-stained Sarya P.7 at the instance of Abdul Ghaffar. The appellants had the motive to commit the crime, hence their conviction is based on proper evidence, 'and the appeal be dismissed.
9. I have considered the respective submission of the learned counsel for the parties, and have perused the record with their able assistance.
10. I find great force in the submission of the learned counsel for the appellants that there was no ostensible reason or justification with the appellants to make extra-judicial confession to Hasnain Raza Shah (P.W. 4) and Din Muhammad (not produced) on 13-3-1988 at 8.00 a.m. At the time, when they were neither named as accused persons in the F.I.R. Nor the police was going to arrest them in this case. I concur with the learned defence counsel that Police has fabricated the evidence of extra-judicial confession to prove the crime which obviously is unwitnessed. No prudent person would accept this evidence of extra-judicial confession, especially when it is coming from the mouth of Hasnain Shah (P.W.4), the friend of Din Muhammad, who is the sister's son of Ahmad Bakhsh deceased, the given up witness in this case. The conduct of Hasnain (P.W.4). And the aforesaid Din Muhammad is highly unnatural, in spite of this extra-judicial confession, they did not detain the appellants in order to hand them over to the Police. Hasnain Shah (P.W.4) has admitted that he belongs to the party of Sh. Iqbal local M.P.A. Who according to the admission of the Investigating Officer has appeared in the defence of the persons who were named' as suspects in the F.I.R., that is why, they were not challaned by .The police. The recovery of Sarya P.7 at the instance of Abdul Ghaffar has not been proved beyond reasonable doubt, because Investigating Officer. Iras failed to furnish any reasonable or plausible explanation, why he did not associate the public witnesses from the locality as required by section 103, Cr.P.C. Khan (P.W.10) the recovery witness is not the resident of the locality and has interest in the .Prosecution case, as has been mentioned above, hence no reliance can be placed on this belated recovery which has been witnessed by this chance and interested public witness. Even the finding of the Chemical Examiner "that Sarya P. 7 was stained with human blood" is open to serious objection, in the natural, course of the events, the blood normallyl disintegrates after the lapse of a month or so.
11. Alirnad Bakhsh (P.W.11) is a chance witness as he hails from Mauza Chella, which is-at a distance of 20/25 miles from the place of occurrence. The version given by him seems to be ridiculous and fanciful on the face of it. I see no reason why on a casual or chance meeting Allah Ditta and Abdul Ghaffar appellants without any rhyme or reason immediately after seeing this witness, confessed that both of them were coming from the dera of the deceased after committing his murder, without any enquiry by this witness and his companion Zulfiqar (not produced).
The conduct of these persons also suffers from the same infirmity, which has' been observed while appreciating the evidence of Hasnain Raza (P.VV.4),;as.Both these witnesses did not try to apprehend the appellants there and then, her informed the police immediately. I am of the firm view that this witness is deposing falsely- on account of his interest, being shareholder in the same land, with Muhammad Din sister's son of Ahmad Bakhsh deceased. The explanation given by this witness for his presence at Chah Azimwala on that day, is of routine type which cannot be accepted without any other corroborative evidence. His very presence at that time seems to be of doubtful nature, for these reasons, it would not be safe to place reliance on his evidence.
12. The upshot of the above discussion is that in the presence of the infirmities mentioned above, the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt, hence the appeal is C accepted, the conviction and sentence of the appellants are set aside and they are acquitted of the charge. They shall be set at liberty forthwith, if not required to be detained in any other case.
13. In view of the above the revision petition automatically fails and is dismissed in limine.