' Abu Saecd has filed Criminal Appeal No,704 of 1992 against the judgment of Mehr Muhammad Altaf, learned Additional Sessions Judge, Faisalabad,. Dated 25-7-1992 whereby he convicted him under section 302/34, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,5,000, in default of payment of fine to suffer 2 years' R.I. And under section 544-A, Cr.P.C. He was further ordered to pay Rs,40,000 as compensation to the legal heirs of the deceased, in default thereof to culler R.I for 6 months. His co-accused Khalid Mahmood was also convicted by the same learned Judge who gave him the sentence as awarded to Abu Saeed appellant in the aforesaid appeal.
Khalid Mahmood has filed Criminal Appeal No,785 of 1992. The complainant filed Criminal Revision No,665 of 1992 for enhancement of sentence.
' As both the appeals and the revision petition arise out, of the same judgment of the learned Additional Sessions Judge, hence these matters are disposed of by this judgment.
2. The occurrence in this case took place on the night between 15/16-8-1990 in the area of Chak No,127/G.B. Jaranwala and the F.I.R. (Exh.P.H./1) was recorded on the statement of Muhammad Sarwar complainant (P.W.5) by Muhammad Afzal Moharrar (P.W.6) at Police Station Jaranwala, District Faisalabad.
3. As for the main occurrence it is stated by Muhammad Sarwar (P.W.5) complainant in the F.I.R.
That he has three brothers and are residing in Gillani Mohallah, Jaranwala jointly but due to insufficient accommodation, they are also constructing a house in the Housing Society of Chak No,127/G.B. Tchsil Jaranwala where Muhammad Ashraf deceased used to look after the construction of the new house. One night prior to the occurrence the complainant came to the under construction house and handed over his motorcycle to the deceased so that he may go back home. In the morning another brother of the complainant namely Muhammad Sadiq came and enquired about Muhammad Ashraf deceased. The complainant replied that he had gone to their house situated in Gillani Mohallah during the night apprehending some foul play. He and Muhammad Sadiq went to the under construction house and saw that Muhammad Ashraf was lying dead towards the inner side of the canal bank sustaining fire-arm injury on his back. He laid suspicion against one Muhammad Anwar son of Elahi Bakhsh who was his sister's' husband and as he had strained relations with the complainant party, he also laid suspicion against three other persons namely Abdul Latif, Muhammad ' Rafique and Muhammad Sarwar being the Khala Zad brothers of Muhammad Anwar.
4. On 16-8-1990 at 10-00 a.m. Dr. Ahmad Nawaz Saleemi (P.W.11) conducted the post-mortem examination on the dead body of Muhammad Ashraf and found the following injury on his person:- - "A circular wound measuring 3.5 c.m. x 3.5 c.m. With blackish and inverted margins was present at the level of lumbo-sacral joint, close to mid-line on the left side of back."
' In the opinion of doctor; death was due to haemorrhage and shock caused by aforementioned injury which was sufficient to cause death in ordinary course of nature. The injury was ante- mortem and by fire-arm. The probable time between injury and death was immediate and between death and post-mortem was about 13 hours.
5. The investigation in this case was conducted by Zaka Ullah (P.W.12) SI, Police Station City Jaranwala. He recorded the statement (Exh.P.H.) of Muhammad Sarwar complainant and sent the same to police station for registration of formal F.I.R. Then he went to the spot and prepared injury statement (Exh.P.K.) of the deceased as well as inquest report Exh.P.L. He took into possession wrist watch P.6 of the deceased from his hand vide memo. Exh.P.G.1 and also Chhuri P.5 vide memo.
Exh.P.F. He collected bloodstained earth from the scene and took into possession vide memo.
Exh.P.E. He inspected the spot, prepared rough sketch Exh.P.N. And recorded the statements of the P.Ws. Under section 161, Cr.P.C. He also took into possession a motor-cycle P.3 vide memo. Exh.P.C.
During the investigation, he took into possession last-worn clothes of the deceased i,e. Shalwar P.1, shirt P.2 vide memo. Exh.P.B. On 8-10-1990 Abu Saeed accused was in custody in another theft case at the police post. He arrested Khalid Mahmood from Kaifey Chowk on the same day. On 10-10-1990 Khalid Mahmood accused while in police custody got recovered pistol P.4 from his residential house which was taken into possession vide memo. Exh.P.D. Site plan of recovery is Exh.P.D./1. After usual investigation, the challan was submitted in Court.
6. When examined under section 342, Cr.P.C. Both the appellants deposed that they have been involved in this case falsely due to suspicion and party faction, but they did not produce any defence-witness.
7. Believing the prosecution evidence, the learned trial Judge convicted the appellants and gave them the sentences as indicated above.
8. The learned counsel for the appellants submitted that this is a blind murder and none of the Witnesses has seen the occurrence. The conviction is based upon circumstantial evidence which is not sufficient in the eye of law to sustain the conviction. The prosecution in order to beef up its case has examined Shahid Munir (P.W.7) as Wajtakkar witness who appeared before the police on 8- 1021990 whereas the occurrence took place on 15-8-1990. He deposed that he identified the appellant while he was strolling as usual on the canal bank in the night time. The learned counsel has also assailed the joint extra-judicial confession made by the appellants while in police custody before Muhammad Shafi (P.W.8) which is against the law as well as against the natural human conduct. In the end, learned counsel vehemently contended that in order to show its efficiency the I.O. Has roped the appellants who are poor people falsely in this unwitnessed crime to please the complainant party as well as to secure proficiency report from his superior, hence the conviction of the appellants has resulted into miscarriage of justice.
9. The learned counsel for the State assisted by the complainant counsel has supported the impugned judgment.
10. The learned counsel for the complainant has submitted that there is no animus between Shahid Munir (P.W.7), Muhammad Shaft (P.W.8) and the appellants, thus there is no earthly reason why they should falsely implicate the appellants in this case. He further submitted that the conviction can be recorded upon purely circumstantial evidence, if the circumstantial evidence by itself is sufficient to prove the guilt of the accused. The recovery of pistol at the instance of Khalid Mahmood appellant and recovery of Chhuri from the place of occurrence coupled with the recovery of motor-cycle furnished necessary corroboration in the present case. The evidence'of Muhammad Shafi (P.W.8) before whom the appellants made extra-judicial confession gets further support from the evidence of Shahid Munir P.W. Hence the learned trial Judge rightly convicted the appellants, so the appeals are without merits and be dismissed. With respect to the revision petition, he submitted as the appellants have committed gruesome murder for petty gains, hence there is no mitigating circumstance in their favour, and they should have been awarded normal sentence prescribed in law, which is death.
11. I have carefully examined the respective submissions of the learned counsel for the parties, and have perused the record of the case with their able assistance.
12. Admittedly, there is no eye-witness of the occurrence. The conviction in this case wholly rests upon circumstantial evidence. In order to sustain conviction upon circumstantial evidence, the Court has to see whether the circumstantial evidence furnished by the witnesses is of such a quality, and is coming from an unimpeachable source which would justify the conviction of the appellants.
13. In order to evaluate the quality of evidence furnished by Shahid Munir P.W.7 Wajtakkar (chance) witness, the Court has to critically scrutinize his evidence. According to his evidence, he identified the appellants in a suspicious condition in the night time on 15-8-1990, but in spite of that he remained mum and did not disclose this fact uptil 8-10-1990 to any Police Officer. He made his statement under section 161, Cr.P.C. When the appellants were apprehended by the police in this case on 8-10-1990 which is glaring example of fabrication of evidence by the police. The explanation furnished by him for such a long delay in reporting the matter to the police is neither convincing nor plausible, hence his evidence is not confidence inspiring. Even this witness has not mentioned the features of the appellants in his statement recorded under section 161, Cr.P.C. On the basis of which he recognized the appellants. This witness did not appear in the test identification parade, hence no reliance can be placed upon his evidence. He conceded before the trial Court that he cannot say if the night was dark or not, which makes his evidence further doubtful. He made material improvements in his statement before the Court from his statement recorded under section 161, Cr.P.C. For which he was duly confronted, thus his evidence is not worthy of any credence. The evidence of Muhammad Shafi (P.W.8) with respect to joint extra-judicial confession allegedly made by the appellants, when they were in police custody is inadmissible in law.
Discarding above discussed pieces of evidence, I am only left with the recovery of motor-cycle, dead body, as well as the recovery of pistol at the pointation of Khalid Mahmood appellant. The recovery of pistol is against the provisions of section 103, Cr.P.C. As no person from the public witnessed this recovery. Even the recovery of pistol is dated 16-8-1990 whereas Khalid Mahmood appellant was arrested on 8-10-1990 as deposed by I.O., no implicit reliance can be placed upon such dubious recovery. The inquest report shows no Chhuri was found near the dead body which belies the version of the prosecution as given C by Muhammad Shafi (P.W.8) while deposing about the extra-judicial confession allegedly made by the appellants to him when they were in police custody.
14. The upshot of the above discussion is that the prosecution has miserably failed to prove its case against the appellants, hence these appeals are accepted and their conviction and sentences are set aside. Abu Saeed appellant is on bail, he is discharged from his bail bond. Khalid Mahmood appellant shall be set at liberty, if not required to be detained in any other case. As prosecution failed to prove its case, the revision petition for enhancement of sentence fails, and is dismissed.