Khan Muhammad (25) and Ghulam, Sarwar (24) were tried by learned Session Judge, Khushab for an offence under section 302/34, P.P.C. And vide judgment dated 28-5-1986 convicted and sentenced to imprisonment for life and a fine of Rs.5,000 or in default thereof one year's R.I. Each.
Half of the fine, if released, was ordered to be paid to the heirs of the deceased as compensation.
2. The convicts have, come up in appeal.
3. Ahmad Ali complainant has filed revision petition for the enhancement of the sentence (Criminal Revision No.226 of 1989). It is proposed to dispose of these two matters by this single judgment.
4. The occurrence took place in the forest plantation of village Mitha Tiwana on 17-6-1985. Ahmad Khan complainant (P.W.12) the brother of Muhammad Khan deceased, lodged the F.I.R. (Exh.P.I.) with Amir Abdullah Sub-Inspector (P.W.13) on 20-6-1985 at 9-15 a.m.
5. According to F.I.R. The complainant -family was residing at Dera Shahianwala. On 17-6-1985 at 8- 00 a.m. Muhammad Khan left on a cycle to make sundry purchases from village Mitha Tiwana. He did not return till evening. The family was of the view that he might have gone to Dhullianwala. On 19-6-1985 Muhammad Zaman, brother of the complainant reached from Dhullianwala, and showed ignorance about the whereabouts of Muhammad Khan deceased. On this a search was made for the deceased. On the way Khurshid Lambardar of Chak No.40-MB met the complainant and informed that a cycle was lying at his uninhabited Dera near the plantation of the village. On this the search party reached the Dera and found the cycle of the deceased lying there. Search was made in the forest. On 20-6-1985 at 8-15 a.m. The dead body of the deceased was found lying in a watercourse in the Sarkandas and was giving very foul smell. It was stated in the F.I.R. That the deceased had been done to death by the appellants as Khan Muhammad appellant suspected his sister Mst. Khatoon's illicit connection with the deceased. It is also there that about two weeks before the occurrence the complainant alongwith Muhammad Akbar (P.W.5) had gone to Khan Muhammad appellant to assure him that there was no foundation for the alleged illicit connection, who did not feel satisfied and had extended threat.
6. Ghulam Hussain dispenser (P.W.15) proved the post-mortem report (Exh.P.M.) dated 20-6-1985 in respect of the deceased recorded by Dr. Farooq Khawaja with whom he had been working. In cross-examination he told that dead body was swollen, maggots were present but it was identifiable. According to the post-mortem report (Exh.P.M) the dead body was of a middle-aged person with eyes and mouth closed, tongue protruded, face blackened, the whole of the body swollen with maggots all over and foul smelling. It was having 7 injuries, 2 by sharp-edged weapon, 2 by fire-arm, and 3 by blunt weapon. Pellets were removed from the left lung. The death was opined to be within a few minutes of the injuries and time between death and post-mortem was given at about three days.
7. Amir Abdullah S.I. (P.W.13) investigated the case. After recording the F.I.R. He reached the spot and prepared injury statement and inquest report (Exhs.P.K. And P.K./1) and sent the dead body for post-mortem examination. He searched for the accused who was not available. On 23-6-1985 on secret information he raided the house of Ghulam Sarwar P.W and arrested Khan Muhammad appellant. He led to the place of murder and got recovered blood--stained earth which was secured vide memo. (Exh.P.C.). He also led to the recovery of crime empty (Exh.P.4) from the place of murder which was secured vide memo. (Exh.P.D.). He also got recovered gunny bag (Exh.P.5) from near the place of murder. On 25-6-1985 Khan Muhammad made a disclosure and led to the recovery of 12 bore gun (Exh.P.8) from his Kotha, four live cartridges (Exh.P.10/1-4) and these were secured vide memo (Exh.P.H). He arrested Ghulam Sarwar appellant on 26-6-1985 from the area of village Mitha Tiwana and on interrogation on 29-6-198E led to the recovery of Chappels (P.6/1-2) from near the place of murder and a blood-stained hatchet (Exh.P.7) from residential house at Dera Shahianwala and was secured vide memo. (Exh.P.G.).
8. The appellants at the close of the trial pleaded that the deceased had a land dispute with his brother Ahmad Khan complainant at Dera Shahianwala where the deceased had built a Kotha forcibly over the disputed land. They claimed that they had helped the deceased and the complainant had felt aggrieved over it. Ahmad Khan with help of Khurshid Lambardar had murdered the deceased and falsely implicated them in the case. However, no evidence was led in defence.
9, There is no eye-witness account. The prosecution case rests upon circumstantial evidence. It consists of extra-judicial confession made on 23-6-1985 to Ghulam Sarwar (P.W.11) and Muhammad Ramzan (given up P.W) by Khan Muhammad appellant, motive stated by Akbar and Ahmad Khan (P.Ws.5 and 12), recovery of crime empty (Exh.P.4) on 23-6-1985 deposed to by Muhammad Munir and Amir Abdullah S.I. (P.Ws. 7 and 13) the recovery of gun at the instance of Khan Muhammad, stated to by Muhammad Feroze and Amir Abdullah S.I. (P.Ws.10 and 13) and the report of the fire-arm expert (Exh.P.R.) according to which the crime empty had matched with the gun. Ghulam Sarwar appellant also got recovered bloodstained hatchet and the evidence in this respect is given by Ghulam Hussain and Amir Abdullah S.I. (P.Ws.8 and 13).
10. Learned counsel for the appellants contended that the circumstantial evidence produced by the prosecution was not sufficient to clinch the charge against the appellants. He strongly urged that as against Ghulam Sarwar appellant there was rather no evidence. After having heard the learned counsel for the State as well and having gone through the record there seems to be much force in the contention.
11. The dead body as per statement of Ahmad Khan complainant (P.W.12) was found on 20-6-1985.
The deceased had left the Dera on 17-6--1985, he did not return in the evening and also on the next day and on 19-6--1985 he was not found at Dhullianwala when Muhammad Zaman the brother of the complainant showed ignorance about his whereabouts and still no report was made to the police. If the deceased was suspected of having illicit connection with the sister of Khan Muhammad appellant, about two weeks before the occurrence he had not felt satisfied as is stated to by the complainant and Muhammad Akbar P.Ws. His disappearance would have at one raised suspicion against the appellant and matter reported to the Police at one. Ghulam Sarwar (P.W.11) stated about the extra-judicial confession made by Khan Muhammad appellant to him on 23-6-1985, according to whose statement Khan Muhammad had even implicated Ghulam Hussain and according to his confession he himself had fired at the deceased and Ghulam Hussain had given hatchet blows. Except this implication by Khan Muhammad appellant as against Ghulam Hussain there is no other evidence except the recovery of hatchet (Exh.P.7) at his instance. This evidence is not at all adequate to bring home the charge against Ghulam Hussain. It was rather no evidence as to murder.
12. As against Ghulam Hussain appellant we have the evidence of extra judicial confession, motive, and the recovery of gun and the crime empty. According to Zamirul Hassan H.C. (P.W.3) he had- received the sealed parcel containing crime empty on 2-1-6-1985 which he handed over to Manzoor Hussain Constable (P.W.4) on 1-7-1985 for onward transmission to Forensic Expert. Zamirul Hassan received the sealed parcel containing gun on 25-6-1985 and entrusted it to Ali Nawaz Constable (P.W.2) on 3-7-1985 for onward transmission. This would mean that the parcel of the crime empty and that of the gun were with Zamirul Hassan H.C. From 25-6-1985 to 1-7-1985 hence the report of the Fire-arm Expert would be of no avail to the prosecution. Leaving aside the other infirmities in the evidence as to Extrajudicial confession that alone would not be sufficient to bring home the charge against Khan Muhammad appellant unless corroborated and there is no corroboration.
13. The upshot is that the appellants are granted the benefit of doubt and are acquitted. The appeal is accepted, the conviction and the sentences are hereby set aside. The appellants are on bail and stand discharged of the bail bonds. Consequently, the revision petition fails and hereby dismissed in limine.