' ALIL-UR-REHMAN RAMDAY, J.---One Muhammad Mumtaz was tried by a learned A.S.J. at Sargodha for the murder of Muhammad Afzal and for having subsequently caused disappearance of evidence by concealing the dead body of Afzal deceased. He was found guilty and convicted under section 302, P.P.C. and was punished with death and a fine of Rs,10,000 or two years' R.I. in default, in addition whereof, he had also been directed to pay an amount of Rs,30,000 as compensation to the heirs of Afzal deceased. He was also found guilty and convicted under section 201, P.P.C. and was sentenced to seven years' R.I. with a fine of Rs,10,000 or one year R.I. in default of payment of the said fine.
2. Murder Reference No,115 of 1990 seeks confirmation of the said sentence of death while Mumtaz convict has filed Crl. Appeal No,358 of 1990 challenging the above-noticed convictions and sentences recorded against him.
3. Muhammad Ramzan complainant seeks enhancement of the sentences and the compensation awarded by the learned trial Court and has filed Crl. Revision No,532 of 1990 for he purpose. All these matters are being disposed of together through this single judgment.
4. It was Muhammad Ramzan, a brother of Afzal deceased, who had informed Muhammad Saleem Khan Inspector/S.H.O. of Police Station, Saddar, Shahpur of District Sargodha on 17-4-1986 at about 7-00 p.m. that he was residing in Basti Mumtaz Kot, Dakhali Jahanabad alongwith his younger brother Muhammad Afzal who was employed as a teacher in a Government Primary School; that Afzal deceased had arranged an arms licence for him and established contact with Muhammad Mumtaz accused resident of Mauza Vijh for the purchase of a gun who promised to arrange an imported .12 bore gun for the deceased at a concessional rate; that on 1-4-1986 while Ramzan complainant was sitting in his house alongwith Qamar Ali (given up) and Shera (P.W.8), Afzal deceased left the house on a bicycle at about 3-00/4-00 p.m. informing them that he was going to Mumtaz accused for the purchase of gun and took Rs,4,000 with him; that on the way, he met Jumma Khan (P.W.9) and Mehr Khan (given up) and informed them also that he was going to Mauza Vijh to meet Mumtaz accused in the abovementioned connection; that Afzal deceased did not return home for 3/4 days and during the search, the complainant and the other P.Ws. even approached Mumtaz accused who, however, expressed his ignorance about the deceased and that Afzal deceased not being traceable, necessary action be taken in the matter.
5. Ramzan complainant has further disclosed that one Muhammad Nazir had got murdered in the year 1981 in which connection, Afzal deceased had been challaned but has been acquitted and that the complainant party of the said murder case had filed a revision against the said acquittal which was pending disposal. He had suspected that it was either the complainant party of the said murder case who had either illegally confined or murdered Afzal deceased through Mumtaz accused or it was Mumtaz accused himself who had detained or had even murdered Afzal deceased to misappropriate the amount of Rs,4,000 which the deceased had taken with him.
6. For about two years, after the recording of the F.I.R., no substantial progress could be made in the investigation of the case and it was finally on 5-4-1988 that Jumma Khan (P.W.9) allegedly produced Mumtaz appellant before Zaheer-ud-Din Inspector/S.H.O. (P.W.12) stating that Mumtaz appellant had confessed his guilt before him. The appellant was accordingly arrested on the said day whereafter, he led the I.O., on 6-4-1988, to the cattle-shed of one Muhammad Abdullah Makin situate in Mauza Vijh where on his pointation, the earth was dug which had then led to the recovery of the skeleton of a dead body which was clad in a Shalwar P-1, Kurta P-2, Dhotti P-3 and from the pit soles of shoes P-4/1-2, wrist-watch P-5, the national identity card P-6 of Afzal deceased and a Tasbee P-7 were also recovered. On 15-4-1988, a carbine P-8 and a hatchet P-10 were also recovered at the instance of Mumtaz appellant.
7. Dr. Khalid Akhtar (P.W.4) conducted the post-mortem examination on the dead body which was stated to be that of Afzal deceased. According to his report it was a bony skeleton lying in a wooden box. The soft parts of the body had stood completely decomposed and only bones remained. According to him, the bones were of a body of male human being which had a fracture on the top of his skull.
8. To prove its case against Mumtaz appellant, the prosecution relied upon the evidence of extra- judicial confession which the appellant had allegedly made before Jumma Khan (P.W.9); the statements of Shera (P.W.8) and Ramzan (P.W.10), according to which statements, the deceased had informed them that he was going to meet Mumtaz appellant and finally the recovery of the dead body allegedly of Afzal deceased at the instance of Mumtaz appellant. The articles which had been found buried alongwith the dead body were not identified by eye-witnesses to be the wrist watch etc. of the deceased and reliance had been placed only on the identity card to establish that the bony skeleton found was the dead body of Afzal deceased.
9. No witness had seen the deceased alive in the company of Mumtaz appellant nor had any one seen the appellant murdering the deceased. Thus, there is no ocular testimony available in proof of the prosecution case nor is there any evidence of last seen available with it. Shera, Jumma Khan and Ramzan P.Ws. stated that while leaving his house and his village, Afzal deceased had informed them that he was on his way to meet Mumtaz appellant. There is, however, no evidence that the deceased did reach Mumtaz appellant before he had been done to death. In spite of the fact that suspicion had been laid on Mumtaz appellant in the very F.I.R. which had been registered on the 17th day of the disappearance of Afzal deceased yet, he had not been arrested for almost two years since after the occurrence and no warrants or proclamation had even been obtained by the I.O. indicating that he had ever required Mumtaz appellant.
10. It is true that Jumma Khan is apparently an independent witness but even if his testimony is believed, the extra-judicial confession made before him, is not the type of evidence which could have been made the basis for recording a conviction against the appellant on a capital charge. As has been mentioned above, the LO. had never obtained any warrants for the arrest of Mumtaz appellant nor had he got any proclamation issued to secure his presence. Two years had elapsed since the occurrence in question had taken place and there is no justifiable reason available on record as to why the appellant should have approached Jumma Khan all the way, for a confession, seeking his help to save him from the police when there is nothing on the record to indicate that the police was after him in any manner.##TE#
11. In the circumstances, we would find it unsafe to sustain the conviction of Mumtaz appellant on a capital charge only on the basis of such an evidence.
12. In view of what has been noticed above, we find that the prosecution had failed to prove its case against Mumtaz appellant on the charge under section 302, P.P.C. Consequently, the conviction recorded against the appellant under section 302, P.P.C. and the sentences recorded against him for the said charge are set aside. He is acquitted of the charge under section 302 of the P.P.C.
13. The recovery of a dead body at the instance of Mumtaz appellant is, however, not open to any doubt. The same was supported not only by Haji Muhammad Sharif (P.W.6) and Zaheer-ud-Din Inspector/S.H.O. (P.W.12) but had even been fully supported by an absolutely independent person, namely, Rana Muhammad Iqbal (P.W.13) who was a Press Photographer and who had been called to take the photographs of the skeleton etc. The learned counsel for the appellant has not been able to offer any reason as to why this testimony should not be believed.
14. Resultantly, the appellant's conviction under section 201, P.P.C. is maintained and so are maintained the sentences recorded against him on the said charge. It is, however, directed that Mumtaz appellant shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.##TE#
15. Since we have set aside the appellant's conviction and the sentences recorded against him under section 302 of the P.P.C., therefore, there is no occasion for confirmation of the sentence of death awarded to him by learned trial Court. Murder Reference No,115 of 1990 is answered accordingly, for the same reason, we find no merit in Crl. Revision No,532 of 1990 which is also dismissed.
16. Crl. Appeal No,358 of 1990 is disposed of in the above terms.