' KHALIL-UR-REHMAN RAMDAY, J.--- Muhammad Ibrahim, Talib Hussain, Mehmood Akhtar and Ikram-ul-Haq were tried by a learned Additional Sessions Judge of Sahiwal for the alleged commission of offences punishable under section 302/364/392/411/201/402/34, P.P.C.
2. Through a judgment, dated 12-10-1986 of the said learned Court, each one of them was found guilty of the charge under section 302/34, P.P.C. And each one of them was sentenced to death with a fine of Rs,5,000 or one year's R.I. In default, in addition whereto; each one of them had also been directed to pay Rs,5,000, as compensation, to the legal heirs of the deceased or to undergo .
One year's R.I. In default of payment thereof. On their conviction under section 392/34, P.P.C., each one of them had been sentenced to five years' R.I. With a fine of Rs,2,000 or nine months' R.I. In default of payment of fine.
3. Murder Reference No,194 of 1986 seeks confirmation of the said sentences of death while Muhammad Ibrahim, Talib Hussain, Mahmood Akhtar and Ikram-ul-Haq have, respectively, filed Criminal Appeals Nos.601 of 1986, 657 of 1986, 208 of 1986 and No,139 of 1987 to challenge the above-noticed convictions and sentences recorded against them. All these matters are being disposed of together through this single judgment.
4. Faqir Muhammad complainant had a son by the name of Muhammad Hussain who had purchased a car bearing Karachi Registration No,107-394 which was of Toyota make and which the said Muhammad Hussain was plying as a Taxi from the Taxi Stand at Sahiwal. On 16-9-1985, the said Muhammad Hussain came home to fetch his clothes and informed his father that he had been engaged by the four accompanying persons to take them to Faisalabad and Multan. The said Muhammad Hussain also had tea at his house and even offered the same to the four accompanying passengers who were talking to each other in Sindhi language. The said Muhammad Hussain then left the house alongwith the said passengers at about 5-00 p.m. On the said date and when he did not return for quite a few days, his father Faqir Muhammad complainant felt alarmed and reported the disappearance of his son at Police Post Ghalla Mandi of Sahiwal on 3-10-1985. On 20-11-1985, the said complainant received a letter by post wherein it had been written that if he wanted the return of his son and the car then he should come to Data Darbar at Lahore on 21-11-1985 at 12-00 noon while wearing green clothes and should bring an amount of Rs,1,00,000 with him.
5. Having received this letter, the said Faqir Muhammad reported the matter at Police Station B- Division of Sahiwal where an F.I.R. Bearing No,420 was registered on 20-11-1985 at 1-35 p.m. By Khalid Javed S.I./S.H.O. (P.W.7).
6. Khalid Javed S.I. Constituted a police party and reached Data Darbar on the abovementioned date and time alongwith Faqir Muhammad complainant where he arrested Ikram-ul-Haq, Ibrahim and Talib appellants. Mehmood Akhtar appellant was, however, not present at Data Darbar and was arrested subsequently by Zafar Iqbal S.I. (P.W.6) on 2-12-1985 while the said appellant was present near the railway station of Sahiwal on the canal bank of L.B.D.C.
7. The personal search of Mehmood Akhtar appellant had led to the recovery of a silver ring P.8 and a wrist-watch P.9 which were seized vide memo. Exh.P.E. Both these articles had been identified as the ones belonging to the said Muhammad Hussain.
8. On 24-11-1985 Ikram-ul-Haq appellant allegedly led to the recovery of a Rope P.3 from his house in Padeidan in Sindh with which the said Muhammad Hussain had allegedly been throttled to death. On the same day, he had also led to the recovery of the abovementioned Car P.12 bearing Registration No,107-493 of Karachi while it stood parked in front of the house of one Muhammad Hussain Jatoi in Padeidan.
9. Again on 24-11-1985, Talib appellant had led to the recovery of two Shalwars and two shirts of the deceased (Exh.P.4/1-2 and Exh.P.5/1-2); to the recovery of the driving licence P.6 of Muhammad Hussain deceased and to the recovery of the registration book P.7 of the abovementioned car. All these recoveries had also been effected from PADEIDAN.
10. Nothing incriminating had, however, been recovered at the instance of Ibrahim appellant.
11. It may be mentioned here that the dead body of Muhammad Hussain deceased could not be recovered during the course of the investigation. The letter which Faqir Muhammad complainant had allegedly received on 20-11-1985 had been produced by him before Khalid Javed S.I./S.H.O. At the time of the registration of the F.I.R. And the same is Exh.P.I.
12. Canvassing acquittal for the four appellants, it was argued by their respective learned counsel that the prosecution had failed to prove the death of Muhammad Hussain; that the ingredients of the offence under section 392 of the P.P.C. Did not stand proved; that there was no evidence that the letter Exh.P.1 had been written by any of the four appellants; that the F.I.R. Had been lodged with a delay of more than two months; that the report Exh.DA. Lodged at Police Post Ghalla Mandi on 3- 10-1985 was a spurious document; that the letter Exh.P.1. Was a fake document and there was no proof that the same had reached the complainant by post and that in the circumstances, the appellants were entitled to acquittal.
13. All the four appellants are residents of the Province of Sindh. Three of them'had been arrested from Data Darbar at Lahore. Nothing was brought on record by the defence which could even remotely indicate any previous connection of the complainant or other P.Ws. With the said appellants or any ill-will or enmity which existed with the prosecution witnesses against the said appellants. The description of the appellants had been mentioned in the F.I.R. Itself as also in the report (Exh.DA.) dated 3-10-1985 and the defence could not demonstrate that the said description which had originally been given by the complainant on 3-10-1985, did not tally with the respective appearances of the appellants.
14. The submission of the appellants, that the lettered Exh.P.1 was a fabricated document, does not find any support from the record. Needless to mention here that it was in pursuance of the contents of this letter that the three appellants abovementioned had been arrested from Data Darbar in Lahore. The prosecution did not attempt to prove that the author of the said letter was one of the four appellants. The presumption therefore is that the same was- not in the handwriting of any of these four appellants. If a document had to be fabricated then this fabrication is obviously for a purpose and it could have been connected to any of the four appellants. This shows the bona fides of the prosecution and the honesty of the investigation.
15. No reason exists to declare that the report Exh.DA. Was a spurious document. The same had been recorded in routine at Police Post Ghalla Mandi, at least six weeks before the registration of the F.I.R. No adverse inference can be drawn against the prosecution only on account of the fact that on 3-10-1985 an F.I.R. Should have been registered instead of a mere report being recorded in the Roznamcha with respect to the disappearance of the said Muhammad Hussain. It is not unknown that in such like cases of disappearance of a person, the police ordinarily records only a report unless some tangible information is available to demonstrate that a cognizable offence had been committed which had resulted in such a disappearance.
16. Keeping all these facts and circumstances in view, we find that the story narrated by the prosecution is not open to any serious exception.
17. This then brings us to the question as to what offence, if any, had been committed and whether the prosecution had successfully proved the commission of these offences on the part of all the four appellants.
18. The dead body of Muhammad Hussain could not be recovered. There is thus, no proof available with the prosecution that he had died or that he had been killed by any of the four appellants.
19. Consequently, we find that the prosecution had not been able to establish the charge under section 302/34 of the P.P.C.
20. All the four appellants are thus, acquitted of the charge under section 302/34 of the P.P.C. And the sentences recorded against them under the said charge are, therefore, set aside.
21. Similar is the position of the charge of robbery. There is nothing in evidence to substantiate that the car in question had in fact been stolen by the appellants either by causing death or hurt etc. Or even under the fear of such a damage.
22. Therefore, the conviction and the sentences recorded against the four appellants under section 392/34 of the P.P.C. Are also set aside.
23. The allegations levelled by the prosecution, as noticed above, stand proved on record do however, constitute the commission of an offence punishable under section 364 of the P.P.C.
Mehmood Akhtar appellant was not present at Data Darbar alongwith the other three appellants on 21-11-1985 when his companions had been arrested from there. Only a ring and a wristwatch, allegedly belonging to the deceased had been recovered as a result of the personal search at the time of his arrest on 2-12-1985. This ring and this wrist-watch are of the type which are ordinarily available. Participation of Mehmood Akhtar appellant in the prosecution in question is, therefore, not free from doubt.
24. Consequently, Criminal Appeal No,208 of 1986 is allowed and Mehmood Akhtar appellant is acquitted of all the charges levelled against him.
25. The charge under section 364 read with section 34 of the P.P.C. Stands proved against Ibrahim, Talib Hussain and Ikram-ul-Haq appellants. Each one of them is thus convicted under section 364/34 of the P.P.C. And sentenced to suffer ten years' R.I. With a fine of Rs,5,000 or sufferance of two years' R.I. In default of payment of the said fine. The entire amount of fine shall be paid to the heirs of Muhammad Hussain deceased.
26. The car in question bearing Registration No,107-493 of Karachi which belonged to the said Muhammad Hussain deceased had been recovered from Padeidan at the instance of Ikram-ul- Haq appellant. He had not claimed this car nor he could demonstrate his ownership or title to the same.
27. Ikram-ul-Haq appellant is, therefore, further convicted under section 411 of the P.P.C. And is sentenced-to three years' R.I. On the said charge. Both the sentences awarded to Ikram-ul-Haq appellant i,e. The one under section 364 of the P.P.C. And the other under section 411 of the P.P.C.
Shall, however, run concurrently.
28. All the three convicts i,e. Ikram-ul-Haq, Talib Hussain and Muhammad Ibrahim shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
29. Murder Reference No,194 of 1986 and Criminal Appeals No,601 of 1986, No,657 of 1986, No,139 of 1987 and No,208 of 1986 are disposed of in the above terms.