' This appeal is directed against the judgment, dated 7-10-1989 passed by learned Additional Sessions Judge, Sargodha whereby Muhammad Naeem appellant was convicted and sentenced as under:-- Conviction Sentence
(i) Under section 302, P.P.C.Imprisonment for fife and a fine of Rs.10,000 or in default in payment thereof to undergo further R.I. for one year. He was also directed to pay Rs.2,000 as compensation under section 544, Cr.P.C. to the heirs of the deceased or in default to suffer R.I. for six months.
(ii) Under section 404, P.P.C.Two years' R. I. and a fine of Rs.1,000 or in default of payment thereof to undergo R.I. for 2 months.
(iii) Under section 201, P.P.C.Two years' R.I. and, fine of Rs.1,000 or in default to undergo R.I. for two months.
' All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended.
2. Brief facts of the prosecution case as disclosed from the F.I.R. (Exh.P.A.) lodged by Ghulam Muhammad, father of the deceased are that his son Muhammad Khan (deceased) was present at his Dera on 8-6-1988 alongwith the complainant and one Ahmad. At about Peshi Wela, Naeem appellant who had previous acquaintance with his son, asked him to select a buffalo which the deceased intended to purchase. Khan Muhammad deceased took Rs,9,000 alongwith him and accompanied the appellant. He informed the complainant that he will return in the evening. Four days passed but the deceased did not turn up. The complainant inquired from the appellant on which he was informed that the deceased had left for another village and he was not aware of the same. The complainant contacted one Hafeezullah who alongwith him met Bahawala and Asadullah who informed them that they had seen the deceased in the company of the appellant.
The appellant was stated to be carrying a gun and both were proceeding towards Bulhaywala. At the time of last seen the deceased was wearing a white coloured shirt, a blue coloured Chadar and had a Desi Joota in the feet. Suspecting some foul play, the complainant lodged the F.I.R. (Exh.P.A.) on 28-6-1988 at Police Station Sillanwali, District Sargodha wherein it was also stated that the deceased was carrying his National Identity Card with him.
3. The investigation was taken up by Muhammad Aslam Ghori, Inspector/S.H.O., Police Station Sillanwali (P.W.19). He inspected the place of occurrence and conducted preliminary investigation.
He arrested the appellant on 1-7-1988 and on his pointation recovered one empty (P.2) on 4-7-1988 which was:secured vide memo. Exh.P.B. On the same day the appellant led to the recovery of National Identity Card (P.4), handkerchief (P.5) and four currency notes of the denomination of Rs,500 each (P.6/1-4) which were taken into possession vide memo. Exh.P.D. On the same day recovery of Chadar (P.3) and pair of shoes (P.1/1-2) were taken into possession from the place of occurrence vide memo. Exh.P.C. On 10-7-1988 the appellant led to the recovery of rifle (P.7) from his residential house which was lying on a cot underneath the beddings. The same was secured vide memo. Exh.P.F. He got formal site plan prepared from 1.1aqat Ali, Patwari (P.W.8) in duplicate vide memos. Exhs.P.E. And P.E. /1. On 31-7-1988 the Investigating Officer visited Police Station Massan, District Jhang and the M.H.C. Handed over to him Qamees (P.8) of the deceased. He also procured Inquest report (Exh.P.H.), Post-mortem examination report (Exh.P.I.) of the deceased and copy of F.I.R. No,58, dated 16-6-1988 registered at Police Station Massan with regard to finding of the dead body of the deceased, vide memo. Exh.P.K. On 1-9-1988 he prepared incomplete challan against the accused and the same was submitted in Court. Shirt (P.8) was identified by the witnesses to be that of Khan Muhammad deceased at Police Station Massan. On conclusion of the investigation the appellant was sent up to face trial in the Court of Malik Mumtaz Ahmad, Additional Sessions Judge, Sargodha. The learned trial Court convicted and sentenced the appellant as detailed above.
4. The prosecution with a view to establish the guilt of the accused/appellant, examined 20 witnesses in all. Ghulam Muhammad (P. W.1) who stated about abduction of his son Khan Muhammad deceased. Asadullah (P.W.2) is a witness to the last seen who saw the deceased going alongwith the appellant. Sardara (P.W.3) is a cobbler who stated that the shoe which was recovered by the police had been prepared by him for Khan Muhammad deceased. Muhammad Nawaz (P.W.4) is a witness to the recovery of empty cartridges from the place of occurrence as well as that of shoes of the deceased. Muhammad Panah son of Khizar Hayat (P.W.5) and Rehmatullah (P.W.7) are the witnesses of extra-judicial confession made by the appellant before them confessing his guilt of having killed the deceased by causing fire-arm injury to him. Ahmad (P.W.6) is a witness who was present with the complainant when Khan Muhammad deceased was taken alongwith him by the appellant. Liaqat Ali Khan, Patwari (P.W.8) is the draftsman who prepared the site plan. Shaukat Hayat, A.S.-I. (P.W.9) and Amanat Masih, Constable (P.W.10) are formal witnesses.
Muhammad Panah son of Noor Muhammad (P.W.11) is a witness of recovery of rifle (P.7) from the house of the appellant. Zulfiqar (P.W.12) is a witness who saw the dead body lying alongwith the canal bank which was being eaten by the dogs and crows etc. He informed the police at Police Station Massan, District Jhang. The police accompanied him to the place of occurrence and despatched the dead body to the Civil Hospital for post-mortem examination. The dead body was wearing the shirt stained with blood and covered with dust. In cross-examination he stated that none of the relatives identified the dead body of the deceased in his presence when he happened to be present there. Riaz Hussain (P.W.13) is a formal witness who carried the dead body. Ahmad Bakhsh (P.W.14) is the police A.S.-I. His statement is formal in nature except that the was handed over the last worn shirt of the deceased by the doctor and he onward handed over the same to Abdul Majid, S.-I. On receipt of post-mortem report he registered F.I.R. No,58 on 16-6-1988 with Police Station Massan under section 302, P.P.C. P.W.15 is Dr. Tafhim Hyder Kazmi from B.H.U. Pir Kot, District Jhang. He conducted post-mortem examinatior on the dead body on 13-6-1988 and noted the following injuries on his person:--
(1) A circular entrance wound 3 c.m. x 3 c.m. On the front and middle of the chest.
(2) An exit wound with lacerated margins 10 c.m. x 14 c.m. On the back and this was communicating with injury No,1.
' Skull was intact. Vertebrae of the thoracic were missing. Membrane, brain and spinal cord were decomposed. Ribs Nos.4, 5 and 6 and the chest wall were partially decomposed Pleuras were punctured at the site of injury and partially decomposed. Larynx and Tracheae were partially decomposed. Right lung was partially decomposed and lacerated on the right side due to injury No,1. Left lung was partially decomposed. Paricardium, heart and blood vessels were partially decomposed. The contents of abdomen were intact and partially decomposed. The contents of intestine in stomach could not be differentiated. External genital was lacerated.
' In the opinion of the doctor, death was the result of fire-arm injury which was sufficient to cause death in ordinary course of life. The injury was ante-mortem. Probable time between injury and death was immediate whereas between death and post-mortem about 10 to 15 days. During the cross-examination it was admitted that flesh of the face had been eaten up and decomposed.
One could not identify the features of the dead body.
' Fayyaz Mahmood, Constable (P.W.16) and Muhammad Yar, H.C. (P.W.17) are the formal witnesses who completed various formalities. Abdul Majeed, S.-I. (P.W.18) and Muhammad Aslam Ghauri (P.W.19) conducted the investigation. Various acts performed by them during the investigation have been narrated above. Abdul Majid (P.W.20) was posted as S.H.O. At Police Station Massan on 16-6-1988. He searched for the heirs of the deceased whose dead body had been recovered.
Report of Fire-arms Expert was tendered by the learned P.P. As Exh.P.M. And closed the prosecution case. In his statement under section 342, Cr.P.C. The appellant denied the various allegations levelled against him. In answer to question No,13, as to why this case was registered against him, he stated that due to party faction in the village. He declined to appear as his own witness in defence.
5. Learned counsel for the appellant has argued that the prosecution has failed to establish the guilt of the appellant which obviously hinges on the circumstantial evidence but the facts and circumstances available on the record do not in any manner connect the appellant with the commission of the alleged crime. According to him the appellant is "Imam Masjid" and he is a pious and noble man enjoying respect in the locality. He has been implicated merely on the basis of suspicion and party faction in the village. Some suggestions were put to show that he had given a "Fatwa" against some influential people who by availing the chance of recovery of an unidentified dead body got the appellant implicated in the present case. It is further submitted that the dead body was absolutely unidentifiable. Various articles allegedly taken into possession such as shoe of the deceased, his I.D. Card, shirt and handkerchief etc. Have been in fact planted. No such recovery as alleged was effected. As regard shoes, he says that the same were stated to have been recovered from the house of the deceased himself. Recovery of the shoes from the house of the deceased does not in any manner connect the appellant with the commission of the offence. He has also pointed out that there are some important and significant interpolations in the record e.g. Entries of memo. Of recovery of currency notes (Exh.P.D.) have been changed from Rs,400 to Rs,500 each. Similarly the dates on the recovery memos. Exhs.P.B. And P.C. Have been erased and interpolated which is visible even to a naked eye. As such an attempt has been made to implicate the appellant in the commission of the crime. As regards recovery of currency notes and rifle from the appellant, he says that an empty was allegedly recovered on 3-7-1988 but the same was despatched to the Forensic Science Laboratory on 10-7-1988. On 10-7-1988 the rifle (P.7) had also been recovered which was subsequently despatched on 17-7-1988. The empty which had allegedly been recovered on 3-7-1988 was shown to have been kept in Malkhana upto 10-7-1988 i,e, the date on which the rifle was allegedly recovered. These dates indicate that on 10-7-1988 even according to the prosecution itself, both rifle and empty were in the custody of police together. The possibility of firing a shot from the rifle and procuring the empty cannot be ruled out and in fact the same was done. It has also been argued with vehemence that it is unbelieveable that the empty would have remained on the place of occurrence till 3-7-1988. The murder according to the prosecution was committed on 8-6-1988. How an empty could remain present on the place of occurrence for period of about 25 days and how the appellant would have known that the empty was still lying there. In fact a crude attempt has been made by the prosecution to connect the appellant with the murder of the deceased. It has also been argued that the statements made by the prosecution witnesses are discrepant and the discrepancies are of the nature which renders the testimony of the P.Ws. As unacceptable. Lastly it has been argued that the evidence of extra-judicial confession is totally unacceptable. Both the witnesses testifying the extra-judicial confession do not belong to the village of the appellant and they were not in a position to extend any help on account of which the so-called confession was made before them. It has been further contended that their statements are not at all convincing because after the confession was made before them the appellant was allowed to go by the witnesses and no attempt was made either to report the matter to police or hand over the appellant to police who according to them had confessed his guilt for having committed an offence entailing capital punishment. Learned counsel for the State has although opposed the prayer made in appeal yet has not been able to controvert any of the submissions made by the learned counsel for the appellant.
6. I have considered the arguments and gone through the evidence carefully. It is true that in recovery memos. Exhs.P.B. And P.C., the date of their preparation has been altered to 4-7-1988.
Visibly some other date had been mentioned earlier which has been erased and new figure (4) has been entered. Prosecution would have a strong evidence in its favour relating to the recovery of rifle and matching of empty with the rifle recovered from the appellant but the whole record suffers from a number of weaknesses and infirmities e.g. As observed above the recovery memos.
Themselves are doubtful. It is not believable that the empty would have remained present at the place of occurrence for such a long period and the appellant would have known that the same lies buried in the mud. Apart from that according to the post-mortem report only one injury was received by the deceased. Even then possibility of presence of one empty at the place of occurrence is extremely remote. The contention that the empty and the rifle were together with the police and the possibility cannot be ruled out that the empty was fired from the rifle and thereafter, sent to the Laboratory to obtain the favourable result, is not without substance. No plausible explanation has been tendered by the prosecution for not sending the empty to the Laboratory before the recovery of the rifle.
7. admittedly the dead body was decomposed at the time of its recovery. Unfortunately the face and other parts of the body had been eaten up by dogs and birds. According to the doctor, the dead body could not be identified from the physical features. With a view to show that the dead body was that of Khan Muhammad deceased, recovery of I.D. Card, shoes, handkerchief etc. Has purportedly been made but the recovery does not inspire confidence and it is very hard to believe that the recoveries as stated by the prosecution were in fact made during the investigation. The shoe which was identified by the cobbler statedly belonged to the deceased but its recovery is stated to be effected from the house of the deceased. If a shoe is recovered from the house of the deceased, then the appellant cannot he connect with that recovery in any manner? The explanation of the prosecution that the same had been stated on account of some slip of tongue is hardly acceptable because invariably the benefit of doubt which in the present case is quite substantive, should be extended to the accused person. The evidence of last-seen is also not very convincing for the reason that nobody has seen the dead near the place of occurrence. Even if it is presumed that some witness saw that the deceased and the appellant proceeded from the home together, the evidence of last-seen shall not be sufficient to hold the appellant guilty and unless the deceased is seen immediately before the occurrence and some where near the place of occurrence, the evidence becomes insignificant. In this respect the opinion of the doctor regarding the intervening time in between the death and the post-mortem examination can also be taken into account. The post-mortem was conducted on 13-6-1988 whereas death is stated to have occurred 10/15 days before the examination. According to the doctor's observation death would have been caused some where between 29-5-1988 and 3-6-1988. Although the time period given by the doctor is subject to variation and one or two days can be added or substracted from either side. Even then the date of murder of the deceased which is stated to be 8-6-1988 does not in any manner correspond with the prosecution version. The deceased left the house on 8-6-1988 and his murder would have been committed definitely after that date which could be 9th or 10th or so but in any manner it could be 29/30-5-1988 or even 3-6-1988. The time gap is significant and on this score as well the benefit has to be extended to the accused person. In the post-mortem report the doctor has noted laceration on the external genitals which although has not been adverted by the learned trial Judge or even by the learned counsel for the appellant but the same is not without significance. If the laceration is ante-mortem, then the possibility that some injury was caused to the genitals cannot be ruled out. Ordinarily injuries are caused on the genitals especially when some one is suspected of having committed some immoral offence. Injuries are caused on the genitals with a view to insult and disgrace the accused and also to take revenge. In the present case no such allegation even remotely had been made that there was any suspicion against the accused person. The prosecution has also suggested a motive that the deceased had carried Rs,9,000 with him and the possibility of his doing to death with a view to grab money may not he unlikely but the same does not appear to be probable especially when the appellant happens to be "Imam Masjid" and has no criminal history to be described. Any person having a position in the society as that of the appellant would not ordinarily commit murder of one as of his acquaintance to grab the money of Rs,9,000. The probability is further reduced when the father of the deceased as well as other witnesses knew that the deceased was accompanying the appellant while having money with him. Although learned counsel for the State has submitted that all the circumstances taken together connect the appellant with the commission of the offence but after considering and making analysis of the entire facts and circumstances of the case, I am not able to accept this submission. The evidence of extra-judicial confession is not acceptable on the face of it. There does not appear any reason to the appellant to have made a confession before two persons who do not belong to his village and would not in any manner extend any help to him. The extra judicial confession become still further unacceptable when the dead body was not even identifiable and the same was not even detected for a number of days. The conduct of the witnesses deposing about extra judicial confession also casts serious doubt on their veracity. If they were so honest and law-abiding then why they did not hand over the appellant to the police or at least a report must have been made by them to the police. Neither of the two was done. The mere fact that the appellant has not been able to point out any enmity against these witnesses is not by itself sufficient to rely upon their evidence which suffers from inherent defects.
8. After having considered and discussed the entire evidence and the circumstances of the case, I am of the view that the prosecution has not been able to discharge its onus and has not been able to prove the guilt of the appellant beyond any shadow of doubt. Resultantly, this appeal is accepted, the conviction and sentences of the appellant are set aside and he is acquitted of the charges against him. He is already on bail. He is discharged of the bail bonds furnished by him.