NAZIR AHMAD BHATTI, J.-Wadera Karam Khan of village Eshani Barkhan sent a written report to Assistant Commissioner Barkhan on 25.9.1989 wherein he disclosed that on the previous night Karman Kachaila had been beaten by some unknown culprits who had also taken away his gun and ox. A levy official Bahar Khan made a report on 26.9.1989 that the injured Karman was brought in Civil Hospital Barkhan but he was unconscious and unable to make any statement. The injured was being taken to Civil Hospital Dera Ghazi Khan for treatment on 26.9.1989 when he succumbed to the injuries near Sakhi Sarwar Town and the report of his death was recorded on 26.9.1989.
However, no assailant was named in any report made of the occurrence. Subsequently during investigation five accused Bijar, Rahim, Faiz Muhammad, Jummal and Said Khan were arrested.
Accused Said Khan was subsequently declared proclaimed offender. All the accused were charged for committing Harabah in the house of deceased Karman and also for injuring him.
Appellant Bijar was arrested on 10.11.1989 and appellant Faiz Muhammad was arrested on 14.11.1989 and at their instance rifle alleged to be owned by the deceased was recovered from a deserted place near the mountain on 17.11.1989. Accused Said Khan was arrested on 4.11.1989 and the ox, alleged to have been stolen from the house of the deceased, was recovered at his instance on 18.11.1989 from an open place but the said accused subsequently absconded. Accused Jummal and Rehman appeared before the Naib Tehsildar /Investigating Officer on 3.12.1989. Accused Rahim was also arrested on 10.11.1989.
2. After investigation all the six accused were sent up for trial before the Sessions Judge Loralai who charged them under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, to which all the accused pleaded not guilty and claimed trial. Accused Said Khan absconded when the trial was opened and after the conclusion of the trial all the remaining 5 accused were convicted and sentenced. Accused Rahim, appellant No.2 herein,' was convicted under section 17(4) of the Hudood Ordinance and was sentenced to death. Accused Bijar, Faiz Muhammad, Jummal and Rehman were convicted under section 20 of the Hudood Ordinance read with section 395 PPC and each of them was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- or in default to further undergo rigorous imprisonment for six months.
All the five convicts have challenged their conviction and sentence by the appeal in hand. A murder reference No.2/Q of 1992 was also sent by the learned Sessions Judge. Both the appeal and the murder reference are being disposed of by this single judgment.
3. The evidence against the appellants consisted of firstly, the ocular testimony of P.W.2 Abdul Rahim son of the deceased; secondly, dying declaration alleged to have been made by the deceased before PW.1 Wazeran and P.W.3 Rabha; thirdly, the confessional statements of the appellants; and fourthly, Recoveries.
4. We now propose to examine the evidence produced during the trial. In this connection we first take up the ocular testimony. In this respect there is only the testimony of the son of the deceased (P.W.2). He stated that it was night . Time and on hearing noise he woke up and saw three persons standing by the head side of his father and two persons were taking away the ox and then all absconded. On his inquiry his father told him that his head had been injured and the gun had been taken away. His father asked him to inform his uncle Wazeran. He admitted that he did not know the names of the assailants. He also admitted that when his father was being belaboured, no other person was present. He also admitted that when he went out of the house to inform his uncle his father had become senseless and could not talk. This witness also admitted that he could not identify the assailants nor he could say as how many persons were there. He also admitted that he was informed by his uncle about the accused one month after the occurrence.
5. The oral testimony as narrated in the foregoing paragraph, will disclose that there were many material discrepancies therein. P.W.2 Abdul Rahim son of the deceased saw only 3 assailants present in the house. He did not know them. He also did not state their names to his uncle P.W.1 Waziran. He also did not identify the alleged three assailants out of all the six accused during the trial.
6. Much stress was laid on the allegation that the deceased had made dying declaration before P.W.1 Wazeran and P.W.3 Rabha. It was admitted that the occurrence had been seen only by P.W.2 Abdul Rahim son of the deceased and the other two P.Ws arrived at the spot after the assailants had made good their escape. P.W.2 Abdul Rahim and clearly deposed when he left his house in order to inform his uncle about the occurrence that his father had become senseless and was unable to talk. On the other hand both the other P.Ws had deposed that when they reached the spot they found the deceased in possession of his senses and he narrated the occurrence to them and also the names of the culprits. P. W.1 Wazeran stated that the deceased had named absconding accused Said Khan, Rehman and Rahim for injuring him and committing the theft while P.W.3 Rabha stated that deceased Karman had disclosed to him that four persons had come out of which absconding accused Said Khan and Rehman had injured him and the other two were standing outside the house. It shall thus be seen that the veracity of the dying declaration alleged to have been made by the deceased before both the other two witnesses Wazeran and Rabha had became doubtful. The deceased was not only not in possession of his senses when they reached the spot but each of them also disclosed different circumstances of the dying declaration. When we also keep in mind that both the aforesaid two witnesses are close relatives of the deceased the factum of dying declaration made before them by the deceased becomes even more doubtful.
7. The next point for consideration is the confessional statements of appellants Rahim, appellant Faiz Muhammad and appellant Bijar Khan. The confessional statement of appellant Rahim was recorded on 20.11.1989 while he was arrested on 4.11.1989 as such his confessional statement was recorded 16 days after his arrest. This fact would show that he did not want to make any confessional statement but was coerced to make the same. In his statement recorded under section 342 Cr.P.C, he denied making of any confessional statement. The perusal of his confessional statement would show that all the accused had made conspiracy to commit theft in the house of the deceased and on the night of occurrence appellant Bijar and Faiz Muhammad went inside the house of the deceased and stood by the side of his cot whereas he and absconding accused Said Khan took away the ox and in the meantime Karman woke up whereupon he was beaten with sticks by. Appellant Bijar and Faiz who came out with the gun. The confessional statement of appellant Faiz Muhammad was recorded on 20.11.1989 whereas he was arrested on 14.11.1989. He denied the making of any confession in his statement under section 342 Cr.P.C. His confessional statement would disclose that he was asked by absconding accused Said Khan and accused Rahim to accompany them. However, he remained outside the house of the deceased and did not take any part in any of the occurrence. The confessional statement of appellant Bijar was also recorded on 20.11.1989 whereas he was arrested on 10.11.1989. So his confessional statement was recorded after 10 days of his arrest but he denied the making of any confessional statement in his deposition recorded under section 342 Cr.P.C. In his confessional statement he deposed that he was taken to the house-of the deceased by accused Faiz Muhammad, Rahim Khan and absconding accused Said Khan but he remained outside whereas absconding accused Said Khan and accused Faiz Muhammad went near the cot of the deceased and accused Rahim Khan untied the ox. In the meantime Karman woke up and he was beaten with sticks by absconding accused Said Khan and Faizu. Thereafter he returned to his house. The perusal of the aforesaid confessional statements would show that all the three appellants had not ascribed any active role to themselves. Not only that the number and name of participants of the crime were also different in each confessional statement It is also significant to note that the confessional statement of appellant Bijar is exculpatory to himself. It is also very significant to note that the said three assailants had not been asked any question about the confessional statement of each other in their depositions under section 342 Cr.P.C, and as such they did not know as what had been deposed against them by their co-accused in the confessional statement. The learned trial Judge did not give any opportunity to each of the aforesaid three appellants to accept or rebut the confessional statement of the co-accused made against him. Even on that score the confessional statements should have been excluded from consideration. The confessional statements of all the three aforesaid appellants were neither made voluntarily nor were confronted as against each other nor they ascribed any specific and active role to the maker thereof nor were inculpatory. The confessional statement should have not been considered by the learned Sessions Judge for forming any opinion about the guilt of the appellants.
8. One factor for holding the appellants guilty consisted of the recoveries. The prosecution story was that the appellants had stolen the rifle and ox belonging to the deceased. However, any description of neither the rifle nor the ox was given in the first information of the offence. A rifle was alleged to have been recovered at the instance of the appellants Bijar Khan and Faiz Muhammad but its number was never tallied with the rifle alleged to have been stolen from the house of the deceased. It is also note-worthy that no licence of the rifle was produced to prove that it belonged to the deceased and that it was stolen from the house of the deceased. The recovered rifle was also not properly identified by the complainant party because the son of the deceased was not shown the same. Whereas the ox was recovered from a deserted place at the instance of absconding accused Said Khan. As such both the recoveries were doubtful and could not form the basis of conviction of any of the appellants before us.
9. Injured Karman was brought before P.W.5 Dr. Shahjehan on 25.5.1989 when he was posted as Mobile Medical Officer Barkhan. The said doctor found injuries on the head of Karman and gave him first aid. The case was of serious nature. The doctor sent him to Dera Ghazi Khan but Karman died on the way. Then the doctor was taken to examine the dead body and after examination he issued a certificate Ex.P.W.5/1, according to which cause of death was due to head injury inflicted with blunt weapon. However, the doctor neither described the injuries which were sustained by the deceased nor his post mortem examination was conducted. The doctor had issued an injury certified Ex.P/11-1 which gave details of the injuries but this certificate was not proved by the doctor nor by any witness of the mashirnama. As such the cause of death could also not be ascertained.
10. The State had failed to produce evidence of a kind which could conclusively prove the offence for which the appellants were charged, convicted and sentenced. Hence their conviction was recorded without any proper basis. We, therefore, accept the appeal of all the appellants, whose conviction and sentence is set aside and they are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case. The murder reference in respect of appellant Rahim is replied in the negative.