' Karam Hussain and Jewan Shah, their uncle Abid Hussain, and a friend of all, Kazim Hussain, appellants were tried by Additional Sessions Judge, Jhang for the abduction for murder and actual murder of Zakir Hussain, real brother of Ghulam Hussain complainant (P.W.8) and vide judgment, dated 2-7-1991 convicted and sentenced as under:--
(i) All under section 364/34, P.P.C. To ten years' R.I. And a fine of Rs,5,000 each, or in default thereof one year's R.I. Each.
(ii) All under section 302/34, P.P.C. To imprisonment for life each and a fine of Rs,10,000 each or in default thereof four years' S.I. Each and a compensation of Rs,10,000 each if recovered to be paid to the legal heirs of the deceased or in default thereof six months' S.I. Each.
' The sentences were ordered to run concurrently.
2. Ghulam Hussain complainant (P.W.8) made statement (Exh.P.C.) to Ghulam Hussain S.I. (P.W.14) on 25-12-1990 at 7-30 a.m. At Police Post Kot Shakir. It was sent to the Police Station 18-Hazari where formal F.I.R. (Exh.P.C./1) was registered the same day at 8-30 a.m. By Mumtaz Hussain, M.H.C.
(P.W.3).
3. The version given in the statement (Exh.P.C.) was that the complainant was running a Karyana Shop in village Mari Shah Sakhira. In the evening on 21-12-1990 Kazim and Jewan Shah appellants came to the house of the deceased where the complainant, the deceased and his wife were present and took the deceased along to their village Thatti Janoon on the pretext that their hand- pump was out of order. Zakir Hussain did not return till morning and so the family felt anxiety.
Enquiry was made from Jewan Shah who informed that Zakir Hussain after repairing the hand- pump had returned in the night. The complainant family thereupon started hectic search but finding no clue, the complainant reached Thatti Janoon alongwith Muhammad Bakhsh (given up) and Allah Bakhsh (P.W.9) where Kazim Shah, Karam Shah and Ahid Hussain met them and were asked to satisfy their anxiety. After hesitation they sought an adjournment of 4/5 days for the search of Zakir Hussain. On this the complainant and his companions returned to the- house. In the morning of the day of report the complainant was present at the house when Ahmad Bakhsh (P.W.10) and Muhammad Aslam (given up) reached him and told him that in the evening of 21-12- 1990 they had seen Zakir Hussain (deceased) going with the four appellants towards river side and Karam Hussain Shah was carrying a Wahola. The suspicion of the complainant strengthened that Zakir Hussain had been hid somewhere. He started for making a report and at Adda Shah Sakhaira, Zawar Hussain (given up) and Amir (P.W.11) met him and told that in the early morning of 22-12- 1990 they had seen the appellants coming from the river side. It had now become clear that Zakir Hussain had been either hid or murdered by the appellants. It is also in the complainant (Exh.P.C.) that 2/3 years before the occurrence Karam Shah had abused Zakir Hussain and asked him not to visit Thatti Janoon as he suspected that Zakir Hussain was having illicit connection with his sister Mst. Kalsoom.
4. Mc appellants pleaded that they had been falsely involved due to party-faction. Jewan Shah produced Hawaldar Ghulam (D.W.1) to say that 0- e appellant was employed in the Army. He was on duty on 21 and 22-12-1990 and was on leave from 24-12-1990 to 4-1-1991.
5. The occurrence was an unwitnessed one. The prosecution evidence consists of last-seen (Ghulam Hussain, Ahmad Bakhsh P.Ws.8 and 10), Waj Takkar (Amir P.W.11), recovery of dead body on the pointation of Karam Shah, Abid Shah and Kazim Shah on 25-12-1990 (Ghulam Hussain, Ahmad Bakhsh, Lashkar Ali, P.Ws.8, 9 and 2), recovery of Chaddar in which the dead body was wrapped and ring in the finger of the dead body (Ghulam Hussain, Ahmad Bakhsh and Lashkar Ali, P.Ws.8, 9 and 2), recovery of Shalwar and shirt of the deceased at the instance of Abid Shah appellant (Allah Bakhsh, P.W.9), extra-judicial confession (Muhammad Hayat, P.W.13), medical evidecne (Dr. Allah Bakhsh, P.W.1) and Ghulam Hussain, S.I., the investigator, (P.W.12).
6. Learned counsel for the appellants contended that it was an unwitnessed occurrence, the dead body was without its head, it was unidentifiable according to the statement of the doctor, the motive and the recovery of Wahola and the clothes of the deceased, was not believed by the learned trial Court and the other evidence was fabricated and most unreliable. After having been taken through the record and heard the learned counsel for the State as well the contention is correct.
7. There is no eye-witness account of the occurrence. According to the very F.I.R. Karam Hussain had disputed with the deceased 2/3 years before the occurrence, threatened him not to visit their village as he was suspected of having illicit connection with his sister Mst. Kalsoom. This stand was reiterated by the complainant in the witness-box. Karam Hussain, Jewan Shah appellants are real brothers, Abid Hussain Shah is their real uncle and Kazim Hussain, as per the complainant, is their friend. In view of this motive it would have been hardly believable and probable that in the evening of 21-12-1990 the deceased would have walked along Kazim Hussain and Jewan Shah to their village. Even if it be believed that he had gone with them, when he had not returned till morning, the suspicion must have been confirmed and matter reported to the police. Even when no explanation was given about the whereabouts of Zakir Hussain by the appellants on 24-12-1990, no report was made to the police and rather adjournment of 4/5 days was granted. The report was made to the police on 25-12-1990 at 7-30 a.m. Muhammad Hayat (P.W.13) is the witness as to the extra-judicial confession made by all the four appellants to him on that very day and that too at about 11-00 a.m.
His village is 6/7 miles from the village of occurrence. From the statement of Ghulam Hussain, S.I. It appears that the dead body was got recovered on that very day at about 2/4 p.m. The appellants according to Muhammad Hayat (P.W.13) were taken along and the S.I. Also states about their arrest on that very day. The dead body, according to the S.I. And the witnesses was pointed out and got recovered by the appellants jointly. Whatever evidence has been collected was collected on 25-12- 1990. The possibility that the appellants were taken into custody and then the evidence as to recovery of the dead body and extra-judicial confession prepared, cannot be ruled out. The joint recovery is of no avail and the extra-judicial confession without corroboration would also he not sufficient to bring home the charge entailing capital punishment. The evidence of last seen is also of doubtful character as discussed above.
8. The upshot is that the charge against the appellants cannot be said to be proved beyond any shadow of reasonable doubt. They are granted the benefit of doubt and are acquitted. Their appeal is accepted and the conviction and sentences are hereby set aside. They be set at liberty forthwith, if not required to be detained in any other case.