' GHULAM SARWAR SHEIKH, J.--- Ejaz Ahmad son of Muhammad Nawaz, aged about 11/12 was not traceable since 13-9-1996. On 1-11-1996, first information report No,117 originally under section 365, P.P.C. Was registered at Police Station Abbas Nagar District Bahawalpur at the instance of Muhammad Nawaz, father of missing child. As per contents thereof appellant Liaqat Ali alias Nadir Khan and one Ali Muhammad developed visiting terms with complainant's father-in-law, namely, Allah Bachaya, who had monetary dealings with them.
2. On eventful and fateful day i,e, 13-9-1996, appellant Liaqat Ali alias Nadir Khan accompanied by Ali Muhammad went to the house of Muhammad Nawaz, who, however, was not present there. On enquiry, Mst. Zahoor Mai wife of complainant told them, that Allah Bachaya, her father, had gone to Bilal Nagar. Appellant and Ali Muhammad took Ejaz Ahmad to fetch Allah Bachaya. Unfortunate child was clad in Shalwar of white colour, shirt and wearing black Peshawari Chappal at the relevant time. In the evening, Mst. Zahoor Mai told her husband Muhammad Nawaz and his brother Zulfiqar Ali P.W. As to how Ejaz Ahmad was taken away by appellant and Ali Muhammad to bring his grandfather, Allah Bachaya, from Bilal Nagar. On subsequent enquiry, however, it transpired that appellant, Ali Muhammad and Ejaz Ahmad had never gone there.
3. Search was launched for the missing child. But the same did not fructify and consequently matter was reported to police on 1-11-1996 as indicated above.
4. After recording F.I.R. Exh.P.J., Muhammad Ghafoor, S.-I./S.H.O., proceeded to the place of occurrence, inspected the spot and recorded statements of witnesses and prepared site plan Exh.P.L.
5. On 13-11-1996, appellant was arrested from Dera of Khuda Baldish in Chak No,16/B.R.B. During investigation, he, is stated to have confessed his guilt about abduction and murder of Ejaz Ahmad.
On 14-11-1996, appellant, in police custody, and in presence of Zulfiqar Ali, Arif, Khadim, Ramzan, Muhammad Nawaz, complainant and others, pointed out place, where, dead body, was buried after committing and causing his murder. Memo. Exh.P.E. Of said venue was prepared and blood- stained earth was collected therefrom, and after making it into sealed parcel same was taken into possession by means of memo. Exh.P.A. One empty round P.1 of .30 bore pistol was also secured, made into a sealed parcel and taken into possession through memo. Exh.P.B. Last-worn clothes i,e, shirt P.2, Shalwar P.3 and pair of Chapal P.4/1-2 were also taken into possession vide memo. Exh.P.D.
Dead body in the shape of skeleton was got recovered, after digging earth, and was taken into possession through memo. Exh.P.C. All recovery memos. Were duly attested by P.Ws. Zulfiqar Ali, Arif, Khadim Hussain and Muhammad Ramzan. Site plan of place of recovery of dead body and other articles, Exh.P.M., was also prepared. After preparing inquest report Exh.P.H., dead body i,e, skeleton was sent to morgue under the escort of Muhammad Iqbal P.W.6.
6. On 18-11-1996, appellant, in police custody, led to the recovery of pistol .30 bore P.5 alongwith two rounds, one live and the other missed P.6 and P.7 and National Identity Card, which, revealed his real name as "Liaqat Ali". Pistol P.5 was made into a sealed parcel and taken into possession vide memo. Exh.P.F. Bag containing hosiery articles, got recovered by digging earth, was also taken into possession by memo. Exh.P.K.
7. Liaqat Ali, appellant, alone was found guilty during investigation and later report under section 173, Cr.P.C. Was submitted in the Court of Sessions at Bahawalpur. Charge for offences under section 364/302/201, P.P.C. Was framed against the appellant. Later the case was transferred to Special Court, constituted under Anti-Terrorism Act, 1997, where prosecution produced remaining evidence in a bid to prove its case.
8. As many as 13 witnesses were examined by the prosecution at the trial, P.W.1, Khadim Hussain and P.W.2 Muhammad Ramzan are witnesses of recoveries; P.W.3 Muhammad Akram and P.W.4 Ghulam Muhammad claim to have lastly seen Ejaz Ahmad in the company of appellant; medical evidence was furnished by P.W.5 Dr. Sher Muhammad, P.W.6 to P.W.9 are formal witnesses. P.W.10 Mst. Zahoor Mai, mother of deceased had sent her son Ejaz Ahmad alongwith appellant and Muhammad Ali, P.W.11 Muhammad Nawaz complainant reiterated and reaffirmed story of woe embodied in F.I.R. Exh.P.J., his brother Zulfiqar P.W.12 corroborated his version and P.W.13 Muhammad Ghafoor enumerated various steps of investigation carried out by him. Reports of Chemical Examiner, of Serologist and that of Forensic Science Laboratory were tendered into evidence as Exh.P.O. Exh.P.Q. And Exh.P.R. Respectively.
9. When examined under section 342, Cr.P.C. Appellant denied all the incriminating circumstances figuring against him in prosecution evidence, professed innocence and alleged false implication with mala fide intention and ulterior motives. He did not opt to appear as his own witness, to disprove the allegations as envisaged by section 340(2), Cr.P.C. No evidence was led in defence either.
10. On culmination of trial appellant was convicted and sentenced as under:--
(i) Under section 302, P.P.C. Death with a fine of Rs,50,000 or in default of payment of fine to undergo further three years' R.I. He was also directed to pay compensation to parents of the deceased Ejaz Ahmad under section 544-A, Cr.P.C. Amounting to Rs,50,000 and in default thereof he was to undergo further six months' R.I. Liaqat alias Nadir Khan accused to be hanged by the neck till he be dead.
(ii) Under section 364, P.P.C. He was sentenced to suffer ten years' R.I. And a fine of Rs,10,000 or in default thereof to undergo further six months' R.I.
(iii) Under section 201, P.P.C. Five years' R.I. However, it was directed that all the sentences shall run concurrently.
11. Hence this appeal and murder reference, which, are being disposed of together.
12. Ejaz Ahmad, a young boy, aged about 11/12 years, left his house on 13-9-1996 and did not return home, whereafter, matter was reported to Police vide F.I.R. Exh.P.J., lodged on 1-11-1996. It, therefore, follows that for about two months, nothing happened, and later, in F.I.R. Suspicion was raised against appellant, who, was arrested and put to trial. Prosecution banked upon "last seen" evidence, recovery of skeleton, certain articles, belonging to deceased, weapon of offence, medical evidence and motive, for the crime.
13. As regards "last seen", suffice it to say that there is not an iota or A scintilla of direct evidence on the point. As observed above, P.W.3 Muhammad Akram and P.W.4, Ghulam Muhammad have claimed to have seen appellant and Muhammad Ali at the door of house of complainant, on fateful day, but not with Ejaz Ahmad and with, whom, they are stated to have seen them at "Dera Bakha" Stop where they are said to have gone to purchase "Fertilizer". But they are belied not only by each other but also by P.W.10, Mst. Zahoor Mai, who, totally excludes the presence of said witnesss, when, Ejaz Ahmad accompanied the appellant and his companion Muhammad Ali, at her instance. Similarly Muhammad Nawaz complainant, Zulfiqar Ali P.W.12 and Ghulam Muhammad P.W.4, have testified that they had gone to Chak No,4, Mehtra, where, Shadu Misari had told them to have seen Ejaz Ahmad in the company of appellant, Muhammad Ali and having taken water- melon there on very next day of incident. Firstly, Shadu Misari has not been produced and secondly matter was not reported to police despite availability of such information and clue. As a necessary corollary testimony of concerned witnesses is rendered to be "hearsay"; thus, inadmissible and superstructure, based upon such B discrepant, sketchy and imaginary data has to be collapse and fall like house of Cards.
14. Likewise, no evidence, what to speak of "worthwhile"; is available on record to connect the appellant with the commission of crime of murder or of causing disappearance of evidence thereof. Alleged recovery of skeleton or bones with no possibility of identification thereof, of specific person, as candidly opined by P.W.5, Dr. Sher Muhammad, who, conducted autopsy, does not advance the prosecution case in any manner and rather it stands impaired beyond repair to the extent of charge of Qatl-e-Amd and that under section 20h P.P.C. Recovery of torn clothes and pair of Chappal alongwith bones is too fallacious to dilate or anyway connect it with deceased or appellant. It was rightly termed to be case of "no evidence" at all so for charge under section 302, P.P.C. Or section 201, P.P.C. Is concerned. No conviction could be based upon such impaired, discrepant, incredible and seamy evidence.
15. On the face of it, motive set up by the prosecution, is not only farfetched and remote, but, figment of imagination of complainant. Mere monetary dealings of appellant with Allah Bachaya grandfather, of unfortunate child, and that too, not substantiated by any way, could hardly afford any basis for such a callous act.
16. As expounded in Maqbool Ahmad v. The State 1992 SCM R 2279 satisfactory motive always plays an important part in any case dependant entirely on circumstantial evidence. In wake thereof circumstantial evidenct plays the role of "marrow" which strengthens and activates bones while "flesh", like motive gives visible shape to human body and when both are missing, only "skeleton" is left behind as in the present case.
17. It is trite law and there can be no cavil with the proposition that confessions are made before friends and not foes. Surrounding and attending circumstances, at the time of making confession, are of vital importance. No sane person ensnares himself by making abrupt and candour admission especially before man in authority, because he is never oblivious of consequences of such stupidity. He craves for back doors to escape and not abyss to fall into. It negates human psychology. Hence, no prosecution edifice could be erected thereupon as well.
18. Evidence collected during investigation and later produced at trial is deficient qualitatively as well as quantitatively to connect the appellant with the commission of offence under section 302, P.P.C. Or 201, P.P.C. Either. Hence, his conviction to that extent is unsustainable and is, therefore, set aside.
19. However, there is ample evidence is so far as offence under section 364, P.P.C. Is concerned.
Taking away of Ejaz Ahmad by appellant with "mens rea" from his house stands sufficiently proved by the testimony of Mst. Zahoor Mai, P.W.10. Seemingly, she had innocently sent her son in the company of appellant, who was well-known to her. As to what happened afterwards stands shrouded with mystery. Any way, she has successfully withstood hard test of cross-examination on this aspect and has proved beyond any shadow of doubt that Ejaz Ahmad had been taken away by appellant in mysterious circumstances and, thus, commission of offence under section 364, P.P.C. By appellant is fully established and his conviction thereunder is not open to any exception.
No stress has been laid on the point perhaps in wake thereof. As a necessary corollary, conviction of appellant on this score is upheld and sentence awarded to him thereunder is maintained.
20. Resultantly, death sentence is not confirmed and reference is answered accordingly. Appeal, except to the extent indicated above, is thus partly allowed and conviction and sentence to appellant under sections 302 and 201, P.P.C. Are hereby set aside.