AHMAD SAEED AWAN, J. - Muhammad Hanif son of Ali Akbar was convicted and sentenced to life imprisonment under sections 302/34 PPC alongwith co-accused and a fine of Rs. 10,000/- was imposed. In default of payment of fine, he was to undergo further R.I. For one year; in case of realization of the amount of fine, half was ordered to be given to the heirs of the deceased as compensation; the appellant was also awarded two years R.I. And a fine of Rs. 1,000/- under section 382/34 PPC by the learned Sessions Judge, Sheikhupura in case FIR No. 161 under sections 302/382/201/34 PPC Police Station Bhikhi District Sheikhupura vide judgment dated 17.4.1993; hence this appeal by Muhammad Hanif.
2. The brief facts of the to complaint Ex. P/l lodged by Fazal Hussain, PW-5 are that deceased and the complainant used to sell cloth on bicycles from place to place and used to earn their livelihood; on 9.4.1991 at about 8 AM, Muhammad Hussain, deceased, Muhammad Hanif, PW-7, and given up PW Muhammad Sardar, all residents of village Lagar who also used to sell cloth on bicycles went to village Feroze Watooan for the sale of cloth. Muhammad Hanif, PW-7 and given up PW Sardar returned to their village but Muhammad Hussain deceased did not return, upon which the complainant got concerned and inquired about his brother from said Muhammad Hanif and Muhammad Sardar. Both informed the complainant that they and the deceased had gone to village Dhop Sari at about 3 PM and in their presence, Muhammad Hanif and Muhammad Arif accused took Muhammad Hussain, deceased alongwith them towards their house for purchasing cloth from him. On this, the complainant took given up PWs Muhammad Idrees and Rehmat Ali and Dilbar Hussain, PW-4 to village Dhop Sari and went to Muhammad Tufail of the same village where Muhammad Hanif and Muhammad Arif, accused, were called in Bhathak of said Muhammad Tufail. The accused were inquired about Muhammad Hussain but they did not give any clue in that regard. The complainant party, however, continued their efforts for the recovery of Muhammad Hussain deceased and ultimately on 11.4.1991 Muhammad Hanif, accused, appellant disclosed before them that he and Muhammad Arif accused had taken the deceased to the house of Muhammad' Arif where they strangulated him with an electric were by wrapping the same on his neck resulting into his death. Muhammad Hanif appellant further disclosed that they deprived the deceased of bundle of cloth wroth Rs. 3,500/- and a bicycle costing Rs. 1500/- and then during the darkness of night, they packed the dead-body of Muhammad Hussain in a gunny bag, tied it with the said bicycle and threw it in Head Roshan Din. Muhammad Hanif appellant was accordingly captured.
3. After recording the FIR Ex. PA; PW-10 Majahid Raza S.I. Proceeded to village Dhop Sari where he recorded the statement of Muhammad Hanif accused and the statements of PWs. Muhammad Hanif appellant led the I.O. To Raj bail Head Roshan Din and pointed the relevant place and also got .Recovered from there the dead-body of Muhammad Hussain and the bicycle of the deceased.
PW-10 prepare inquest report Ex.PL of the deceased on the same day i.e. 11.4.1991. He took into possession a gunny bag Ex. P6, bicycle Ex. P7, a pair of shoes Ex. PB/1-2 and an electric were Ex. P9 on 11.4.1991 vide recovery memo. Ex. PE. The dead body was sent by the I.O. For post-mortem examination. He also recorded the statements of witnesses of the recovery of the dead body and the bicycle. The 1.0. When inspected the place of occurrence. He also got prepared site plans Ex.PH and Ex.PH/1 and the site plans of the places of recovery Ex.PG and EX.PG/1. The S.I. Also took into possession last worn clothes of the deceased Shalwar Ex.Pl, Shirt Ex. P2 and vest Ex. P3 vide recovery memo. Ex. PB. On 6.5.1991 Arif accused was arrested by the S.I., the accused while in custody led to the recovery of Gathri (bundle of cloth) Ex. P-10/-1-18 on 6.5.1991 which was taken into possession vide recovery memo. Ex.PF. Thereafter the 1.0. Was transferred and the remaining investigation was conducted by PW-3 Muhammad Iqbal S.I. Of the said Police Station. Muhammad Arif accused while in custody led to the recovery of iron rod Ex. P4 from his residential house which was taken into possession vide recovery memo. Ex.PC and wrist watch Ex. P5 was also taken into possession vide the same memo. The investigation was completed by him and challan of the case was submitted accordingly.
4. Muhammad Hanif appellant when confronted with the prosecution case, pleaded innocence and stated that he has been falsely involved as the deceased was murdered by unknown persons.
5. At the trial, the prosecution examined as many as l2 witnesses to prove its version and gave up Muhammad Idrees, Rehmat Ali, Muhammad Iqbal, Bashir Ahmad, Muhammad Sardar, Mubarak Ali and Muhammad Tufail PWs as unnecessary witnesses and tendered in evidence the report of Chemical Examiner Ex. PL. PW-1 Muhammad Anwar Head Constable Moharrir, PW-2 Mubarak Ali Constable, PW-3 Muhammad Iqbal, PW-6 Muhammad Ismail Patwari, PW-7 Muhammad Hanif, PW- 9 Rabnawaz and PW-13 Muhammad Jamil are the formal witnesses who have supported the prosecution version.
6. PW-11 Dr. Shaukat Hayat, then M.O. D.H.O. Hospital Sheikhupura performed post-mortem examination of the dead-body of Muhammad Hussain deceased on 12.4.1991 at 9.45 a.m. And found that rigor mortis was not present. Partial post-mortem staining was present on the back and two ligature marks were also present all around the neck. The following injuries were also found on the dead body:-
(1) Lacerated wound 2 cm x .5 cm muscle deep on the right eye brow.
(2) Two ligature marks all around the, neck upper part, which were 2 cm apart.
All the injuries were ante-mortem and caused with blunt weapon. Samples of stomach, small and large intestines, liver, kidneys and spleen etc. Were taken by the doctor and handed over to the police for sending the same to the Chemical Examiner for detection of poison if any. The report of the Chemical Examiner is Ex.PL according to which poison was not detected in the above visceras.
According to doctor death had occurred due to asphyxia and severe shock; injury No. 2 was sufficient to cause death in the ordinary course of nature.
7. The statement of Muhammad Hanif appellant was recorded u/S. 342 Cr.P.C. The appellant stated that' he is innocent; they had never taken the deceased to their house and that no extra-judicial confession was ever made by him in this case before any person. The appellant also denied the recoveries as mentioned above were effected at his instance. He pleaded that he has been falsely implicated in this case due to suspicion. According to him the dead body of Muhammad Hussain deceased was found by the public floating in the canal and on the receipt of the said information the police came to the spot and recovered the dead body alongwith some articles and subsequently planted the said articles on him and co-accused. The appellant did not offer himself as his own witness for recording statement u/S. 340 Cr.P.C, and also did not produce evidence in defence.
8. I have heard the arguments of the learned counsel for the appellant as well as of learned State counsel and learned counsel for the complainant in Cr. Misc. No. 270/93 and have perused the record with their able assistance.
9. It is an admitted fact that the murder of deceased was not witnessed by any PW and there is no direct evidence in this case. The case of the prosecution as such hinges on the points of last seen, extra-judicial confession, motive and recoveries which pieces of-evidence, as observed by the learned trial Court, have been collected during the investigation of the case.
10. As indicated above, the deceased was last seen in the company of appellant and co-accused on 9.4.1991 as informed by PW-7 Muhammad Hanif. The learned trial Judge observed PW-7 as an independent and disinterested person and without any hesitation accepted his statement as correct as he was not inimically deposed of towards the and held that it was the duty of appellant to explain the whereabouts of the deceased which he utterly failed to do so. It is an admitted fact that there' was no previous enmity whatsoever between the parties; hence the observation that PW-7 Muhammad Hanif did not inimically depose of towards the appellant; it is not necessary that one should depose against another due to enmity, some time other consideration do play its part; in such evidence, the Court must make an effort to disengage the grain from the chaff. It is an error to take an easy way by holding the evidence as unimpeachable or discrepant but the paramount duty of every Court is to analyse the evidence carefully and scrupulously and if that is not possible give the benefit of it to the accused so that the innocent may not be convicted.
11. In an un-reported judgment, the S.C. Of Pakistan in case Rehmat alias Rehman's u. The State Cr.
Appeal No. 52 of 1976 decided on 5.4.1977) observed that on the whole of evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak type of circumstantial evidence to base a conviction on it and this view of the S.C. Was upheld in case Naqib-Ullah & another v. The State (PLD 1978 SC 21).
12. Similarly like the facts of case in hand; in case Besant Singh v. Empror (AIR 1927 LHR. 541), the accused was one of two persons in whose company the deceased was last seen alive, subsequent to his disappearance, the accused led the police to the place where the deceased was buried. It was held that though "grave suspicion" attached to the accused, the circumstances were not.
Sufficient to establish his guilt because of the possibility that the deceased may have been murdered by another person. On a balance of the decided cases, it appears that the circumstances of the deceased having been last seen in the company of accused is not by itself sufficient to sustain the charge of murder as has been done by the learned trial Judge in the present case. As there was no direct evidence of the murder, hence the conviction on the basis that he was the last person seen with the deceased is not maintainable as in similar case Siraj v.
The Crown (PLD 1956 FC 123), the conviction of the accused was set aside.
13. According to prosecution version the appellant while in the Bhathak of Muhammad Tufail had made confession that deceased was killed by him and his co-accused, in the presence of PW-4 Dilbar Hussain, PW-5 Fazal Hussain complainant, Idrees and said Muhammad Tufail. The prosecution examined PW-4 Dilbar Hussain and PW-5 Fazal Hussain complainant in order to prove the fact of the extra-judicial confession made by the accused but left the most important and required evidence of Muhammad Tufail in whose Bhathak the alleged confession by the accused was made similarly Idrees PW was an independent was not produced as unnecessary.
14. The moment, the appellant made extra-judicial confession, he was captured and kept in the Bhathak of Muhammad Tufail. PW-4 Dilbar Hussain categorically stated that in the meantime PW-5 Fazal Hussain had informed the police and the police arrived there and took the person of the appellant from their custody and his statement was recorded there by the police. The evidence of PW-4 Dilbar Hussain and PW-5 Fazal Hussain is not confidence inspiring evidence in the absence of Muhammad Tufail. The appellant in his statement categorically denied that he had ever made confession before the witnesses; if it would have been true; the I.O. Should have got recorded the statement of the appellant u/S. 164 Cr.P.C, as it was an unseen occurrence. Thereby it means under the circumstances extrajudicial confession was not made; if made under pressure as deposed by PW- 5 Fazal Hussain voluntarily in cross-examination that the. Accused/appellant had made confession in village Dhop Sari in presence of the police persons was retracted in his statement- h/S. 342 Cr.P.C. The confession as alleged by the PWs does not seem to be true nor voluntarily. It is an interesting feature that the PWs are still unaware of the-whereabouts of Muhammad Tufail in whose Bhathak firstly the appellant and co-accused were called and later on made confession.
15. As observed by Munir, C. J. In his commentary on the Law of Evidence at page 168 (Vol. 1), it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of Court that is called upon to act upon a retracted confession to enquire into all the material points and surroundings and satisfy itself fully that the confession cannot but to be true.
16. It was held in case Nadir Hussain u. The Crown (1969 SCM R 442) that the rule of caution universally applied to the cases of retracted confession is that it should not be acted upon "unless corroborated in material particulars by reliable evidence. In another case reported as Dhani Baksh v.- The State PLD 1975 SC 187; it was held that a retracted judicial confession is seldom made the basis of conviction without being materially corroborated.
17. The learned counsel for the complainant relied upon case Mahmood v. The State 1993 P.Cr.L.J.
1047; it was held by the Supreme Appellate Court; that recovery of dead body and other incriminating articles, extra-judicial confession and the last seen evidence had linked the accused with the murder of the deceased beyond any reasonable doubt; but the facts of the case in hand are quite different as the main witnesses before whom confession was made were not produced and the evidence of PWs-4 and 5 as already observed is not confidence inspiring and has not been corroborated from the independent evidence.
18. As already observed; when the appellant made confession in the Bhathak of Muhammad Tufail; the police was present and in the presence of police confession was made by the appellant as deposed by PW-5 Fazal Hussain. In case Saeed Ahmad Humdani v. M. Irfan and others (PLD 1986 S.C. 690) the accused made confession in a crowded Bazaar when many people were present and that even the police party in uniform was closed by, as short a distance of ten feet, or few paces. It was held that such an extrajudicial confession in the immediate presence of the police cannot be accepted as voluntarily and correct while in the case in hand; the confession was made in the presence of police and the statement of the appellant was recorded accordingly in the village by the police.
19. In case Iqbal Hussain u. The State (PLD 1969 LHR 217) it was held that the evidence regarding extra-judicial confession is discrepant and is not worthy of reliance. The witnesses have not said that in what words the appellant made a confession and what were the reasons for which he confessed. I, therefore, do not think that this confession can form the basis of the conviction of the appellant.
20. It is true that in some cases even the solitary evidence of I.O. Has been relied upon for the purposes of proving recovery but this cannot be done where there are attending circumstances casting doubt as to the genuineness of the recovery. PW-10 Mujahid Raza I.O. Did not comply with the provisions of Section 103 Cr.P.C, either in recovery of the dead body or the Other articles taken into possession. The provisions of Section 103 Cr.P.C, are mandatory in nature. He confessed that Head Roshan Din is just on Sheikhupura- Faisalabad Road which is a very busy road; Head Roshan Din also a bus stop and people board the buses frequently but he did not ask any person to join recovery of the dead body. The statement of PWs in regard of recovery of dead body has been belied by the prosecution witness itself which, was not declared hostile or any question was put to him. PW-2 Mubarak Ali Constable stated that the moment they reached the spot the dead body was floating in the water and many persons had gathered there. Similarly PW-3 Muhammad Iqbal S.L, second I.O. Did not care about the mandatory provisions of Section 103 Cr.P.C, and admitted that the witnesses of recovery joined him from the police station as the recovery of articles was made from village Dhop Sari at 2.30 P.M and he did not join any resident of village Dhop Sari.
21. The learned counsel for the complainant referred to case The State v. Muneer Ahmad 6 others', wherein it. Was observed that if the accused declines to give evidence on oath in disproof of- charges or allegations made against him; Court shall consider its impact by discussing the evidence brought on record and contended that the appellant refused to give his statement on oath; hence in the absence of his defence witnesses; the prosecution version be accepted as impeachable as adopted by the learned trial Judge. It is well-settled principle of law that the approach of the Court of appeal should be to assess the entire evidence and the material before him to see if the case against the accused has been proved beyond any reasonable doubts, without being observed by the finding of conviction and the sentence passed by the trial Court and where the prosecution has failed to establish its case the only proper order is one of acquittal.
22. In view of what has been discussed above, I am inclined to hold that .The testimony of the prosecution witnesses is not reliable at all and is liable to be ignored without any hesitation. I, therefore, hold that this is a case where the appellant is entitled to benefit of doubt. I allow this appeal, set aside the convictions and sentence of the appellant and direct he be released forthwith, unless he is lawfully required to be detained in some other case.