' Muhammad Nadeem and Abdul Majid were tried under section 304/382, P.P.C. By Magistrate Section 30, Lahore, who vide his judgment, dated 30-9-1989, convicted them thereunder and sentenced them to six years' R.I. Under each count and fine of Rs,2,000 each or in default six months' R.I. In case of realisation of fine, half of it was ordered to be paid to the legal heirs of the deceased. The substantive sentences were ordered to run consecutively.
2. The convicts appealed to this Court whereas Rehmat Khan complainant filed Criminal Revision No,269 of 1990, for enhancement of sentence of the appellants. The revision petition was admitted to regular hearing and notice was issued to the appellants to show cause why their sentences be not enhanced. As the appeal and the revision petition arise out of the same judgment, I propose to dispose them of by a single judgment.
3. Prosecution case as disclosed in the statement of Rehmat Khan Exh.PA. Which was recorded by Yousuf Khan S.I. (P.W.8) is that his cousin Shabbir Ahmad deceased owned a paper cutting factory situated near Taj Company, Lahore. On 20-11-1986 at about 10-00 p.m. He was on his way to his house on Yamaha Motor-cycle 100 CC bearing Registration No,5565/LHG. When he reached near Munshi Hospital, some vehicle had struck from the side, as a result of which he fell on the ground.
After receipt of this information, he rushed to the spot and found that Shabbir Ahmad was in a precarious condition, his left leg was fractured from the thigh and was bleeding from his mouth.
The motor-cycle was lying on the other side of the road. The complainant was waiting for some conveyance, when Yousuf Khan S.I. (P.W.8) reached there. The injured was removed to Mayo Hospital on the police transport. On the basis of aforesaid statement of Rehmat Khan (P.W.1) a case under section 279/338, P.P.C., was registered at Lower Mall Police Station, Lahore, vide F.I.R. Exh.PA./1.
It is in evidence that from Mayo Hospital, the injured was shifted to General Hospital, where he died on 5-12-1986. The offence was, therefore, converted to one under section 304, P.P.C., but the case remained untraced for a long time.
4. On 2-6-1987, some persons including the appellants were apprehended by Ravi Road Police under section 402, P.P.C. During the investigation by Ravi Road Police it transpired that it is not a case of accident but of culpable homicide not amounting to murder by the appellants, who waylaid the injured by a rope and as the motor-cycle was on speed, therefore, the injured fell down and received serious injuries. The appellants also removed the purse and wrist watch of the injured.
This information was conveyed by the Ravi Road Police to the Lower Mall Police and it also published in the newspapers and the complainant after receipt of this information contacted Ravi Road Police. However, the investigation was entrusted to Ghulam Shabbir A.S.I. (P.W.6) on 8-7-1987.
At that time, the appellants were in judicial lock-up. They were handed over to the police under the order of the Court and were associated in the investigation. During investigation Muhammad Nadeem appellant got recovered one wrist watch P.1 and a purse P.2 of the deceased from his residence whereas Abdul Majid appellant got recovered a Nylon rope P.3.
After completing the legal formalities, the police submitted the challan in the Court.
5. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegations and professed innocence. The appellants also appeared as their own witnesses and deposed that about 2-1/4 years earlier, the police arrested them from their houses and involved them in three cases, in which they were acquitted. However, at the relevant date, they were in jail in a case under Arms Ordinance. They were taken out of the jail and their police remand was obtained. They remained in police custody, but nothing was recovered from them, nor did they disclose the commission of any offence and that the present case against them was false.
6. The trial Magistrate believing the prosecution evidence convicted the appellants and gave them the sentence as indicated above.
7. Learned counsel for the appellants contended that it is an unwitnessed occurrence, because initially the complainant Rehmat Khan lodged the report to the effect that the deceased met with an accident on the road as a result of which he received injuries and became unconscious. Later, after reading the news item in the newspapers, on the asking of the police, the case was fabricated against the appellants, wherein the complainant played part by identifying the articles i,e. Purse and a wrist watch and also a Nylon rope allegedly recovered at the instance of the appellants without following the procedure laid down under the law. He further contended that the extrajudicial confession allegedly made by the appellants in the presence of the police is not admissible in law and if these pieces of evidence are discarded, then no case whatsoever is made out against the appellants.
' In the end, learned counsel submitted, that even if for the sake of argument, without conceding, the recovery of purse, wrist watch and a rope at the instance of the appellants is admitted, still no case under sections 382 and 304, P.P.C. Is made out.
8. Learned counsel for the State has supported the impugned judgment.
9. Learned counsel for the complainant has urged that it is a case in which the police has placed all the cards honestly before the Court and it is not a case of police padding. However, he could not support the extra-judicial confession of the appellants allegedly made before the police, but the learned counsel submitted that in the presence of recovery of articles, which were identified by the complainant in the police station, belonging to the deceased, the guilt of the appellants is established beyond reasonable doubt.
10. I have heard the learned counsel for the parties. I have also critically examined their respective submissions and have gone through the entire record with their able assistance.
' Admittedly, there is no evidence whatsoever to show that the deceased was wearing a wrist watch and having the purse with him when he met with an accident. The recoveries of wrist watch and the purse were effected from Muhammad Nadeem appellant after seven months of the occurrence and it still remained a mystery why the appellants kept these articles with them to present as souvenir to the police later on after their apprehension. These articles are of general make and are easily available in the market. Even the recovery of a rope from the appellant Abdul Majid is of no help to the prosecution. In these circumstances, the recoveries of articles are excluded from consideration.
As the police has given statement in the Press showing that they have busted a big gang of dacoits, involved in a number of murders, attempted murders and robberies cases etc., the possibility cannot be ruled out that the police in order to show their efficiency might have cooked up this case against the appellants. Ravi Road Police registered four cases against the appellants in which they were later on acquitted. It is also a mystery how the 1.0. Came to know that the appellants allegedly made disclosure to the Ravi Road Police, so the conduct of the I.O. In the present case is not above board. Even the person who informed the complainant about the accident of the deceased was not examined by the police. It also cast doubt about the veracity of the prosecution version. The appellants remained with Ravi Road Police for a considerable time on physical remand, but nothing was recovered from them, which also belies the recoveries which were later on effected by the Lower Mall Police.
11. For the foregoing reasons, it is concluded that the prosecution has miserably failed to establish its case against the appellants beyond reasonable doubt; hence the appeal is accepted, the convictions and sentences of the appellants are set aside and they are acquitted of the charges.
The appellants are in jail. They shall be set at liberty forthwith, if not required to be detained in any other case. The revision petition filed by Rehmat Khan complainant automatically fails and is dismissed.