' Muhammad Rafique aged 35 years was arraigned for trial in the Court of Mr. Rustam Ali Malik, Additional Sessions Judge, Sheikhupura alongwith one Manawar Bibi. Through judgment dated 7- 12-1993 Mst. Munawar Bibi was acquitted of all the charges while the appellant was convicted under section 364, P.P.C. And sentenced to 10 years' R.I. And a fine of Rs,10,000 and in case of default of payment of fine to further undergo R.I. For six months, under section 201, P.P.C. He was sentenced to 7 years' R.I. And a fine of Rs,10,000 anti in case of default of payment of fine to further undergo R.I.
For six months and under section 302(b), P.P.C. He was convicted and sentenced to life imprisonment and Rs,20,000 was to be paid as compensation to the legal heirs of the deceased and in case of default of payment of the said compensation to undergo further R.I. For six months.
All the sentences were ordered to run concurrently and he was also awarded the benefit of section 382-B, Cr.P.C.
2. Feeling aggrieved the appellant challenged the impugned judgment through the present appeal. The complainant also feeling aggrieved by the ,judgment has preferred Criminal Revision No,81 of 1994. Since both the cases are listed for hearing today, thus, shall be disposed of by this single judgment.
3, Muhammad Abbas complainant P.W.3 (uncle of the deceased) on 7-31991 at 1-05 p.m, lodged FIR. Exh.P.C. At Police Station Factory Area which is at a distance of 5/6 km. From Chattha Colony. It was recorded by fihulam Asghnr S.-I. PM.8, initially the F.I.R, was registered under section 364, P.P.C.
And was later amended to section 302/201/34, P.P.C.
4. The facts as narrated by the complainant Muhammad Abbas are that Iintim Ali Sabar deceased was his brother's son and worked as Electrician. On 12-2-1991 the deceased left the house on his motorcycle saying that he had to do some repair work in the house of Mst. Munawar Bibi after the duty hours. When the deceased did not return he inquired at the house of Mst. Munawar Bibi regarding the whereabouts of the deceased, where Mst. Munawar Bibi and Muhammad Rafique appellant both of them said that after finishing the work the deceased had left their house. During search he met Ch. Muhammad Ramzan P.W. And Bashir Ahmed Butt who told him that at 4-30 p.m.
They had seen the deceased going on his motorcycle alongwith Muhammad Rafique appellant towards Chattha Colony, Lahore-Jaranwala Road. The complainant had further stated that he believes that Muhammad Rafique appellant and Mst. Munawar Bibi to take possession of the motorcycle of the deceased had called him to their house on a pretext and had done away with him or concealed him or his dead body somewhere. After recording of this F.I.R. The police arrested both the accused on 7-3-1991.
5. In course of investigation on 7-3-1991 on pointation of both the accused the dead body of the deceased was dug up from the courtyard of the house of Mst. Munawar Bibi in the presence of the witnesses and it was taken into possession vide memo. Exh.P.P. The injury statement Exh.P.S. And the inquest report Exh.P.R. Were prepared and the dead body was sent for post-mortem examination.
On the same day on the pointation of Mst. Munawar Bibi wrist watch Exh.P.7 and a pair of shoes Exh.P.8/1-2 were also dug up from the courtyard of the house of Munawar Bihi in the presence of the witnesses and were taken into possession vide memo. Exh.P.E. Muhammad Rafique on 14-3-1991 while in police custody led the police to the house of Mst. Munawar Bibi and got recovered the Danda Exh.P.6 from the residential room. It was taken into possession in the presence of the witnesses vide memo. Exh.P.D. All these recovery memos. Were attested by Muhammad Ramzan P.W.4, Ghulam Asghar P.W.8 and Bashir Ahmed given up. On 14-3-1991 both the accused led to the recovery of motorcycle No,6211/LHY Exh.P.9 from the shop of Khalid Mehmood P.W.7 situated at Lytton Road near Janazgah, Lahore. It was taken into possession vide tpemo. Exh.P.F, which is attested by Muhammad Ramzan P.W.4, Khalid Mehmood P.W.7 and Ghulam Asghar P.W.B.
Muhammad Rafique another witness was given up. Transfer letter Exh.P.K., photo copy of I.D. Card of Muhammad Rafique Exh.P.L./1, photo copy of I.D. Card of the deceased Exh.P.K./1, transfer letter bearing thumb-impression of Muhammad Rafique Exh.P.L., sale receipt bearing signatures of the deceased in favour of Muhammad Rafique Exh.P.M. And sale receipt bearing thumb-impressions of Muhammad Rafique and Munawar Bibi in favour of Khalid Mehmood P.W.7 Exh.P.N. Alongwith the original registration book Exh.P,O. Were also taken into possession vide recovery memo. Exh.P.F. On 14-3-1991 Ghulam Asghar P.W.H moved an application Exh.P.H. For taking of the sample of the finger prints of both the ,accused. It was allowed by the Magistrate vide order dated Exh.P.H./1 and the sample of finger prints of Muhammad Rafique were taken as Exh.P.l. And that of Mst. Munawar Bibi as Exh.P.J. They were through Letter No,6986, dated 16-3-1991 sent to the Finger Print Bureau for comparison test. The comparison was conducted and the report of the Finger Print Expert is F,xh.P.U.
On the basis of this evidence both the accused were challaned and sent up for trial where prosecution produced eight witnesses to prove the charge.
6. On 8-3-1991 at 11-00 a.m. Dr. Shaukat Hayat who appeared as P.W.1 conducted the autopsy on the dead body of Imtiaz Ali Sabar aged 25 years and he found the following injuries on the person of the deceased:
(1) Lacerated wound 5 c.m. x 2 c.m. x bone deep on the left side of head mid part with swelling 12 c.m. x 8 c.m. Around the injury.
(2) A big ligature mark present around the neck under the legature material.
' In his opinion all the injuries are ante-mortem caused with blunt weapon and the death occurred due to asphyxia and cardio respiratory failure. Injury No,2 was declared sufficient to cause the death of the deceased. The probable time between injuries and death was immediate while between death and post-mortem was within one month.
7. Both the accused were examined under section 342, Cr.P.C. They denied the prosecution case and in answer to question No,9 Muhammad Rafique has stated as under; "I am a resident of Khaney Di Pall, Police Station, Raiwind. I. Have three sons, three daughters and a wife who are living in the said village. I am a carpenter and hence a poor man. I cannot think of getting my clothes washed from the washerman. Abbas and Ramzan P.Ws. Are not known to me nor did they know me prior to this occurrence. I have been falsely implicated in this case on account of suspicion and enmity. I had not got recovered the dead body or the Danda i,e, the weapon of offence. I had also not got recovered the motorcycle nor anybody had seen me going with Imtiaz Ali Sabar deceased. I have been falsely implicated in this case at the behest of one Tufail Goraya and also on account of suspicion. The P.Ws. Have deposed against me at the instance of police and also on the behest of the complainant."
' He did not opt to make statement as required under section 340(2), Cr.P.C. In disproof of the charges and allegations levelled against him. Neither did he produce any evidence in defence.
Similarly Mst. Munawar Bibi in answer to question No,9 has deposed as under:- "Before this occurrence Tufail Goraya, property dealer had cut dirty joke with me, whereupon I had abused him and he had got me falsely involved in this case. In the said house my sons Naeem aged 22 years, Shahid aged 20 years, Fayyaz aged 18 years and my daughter Samia aged 7/8 years lived with my mother. Rafique co-accused is my paternal uncle who is a resident of Khanedi Pall Police Station, Raiwind and occasionally he visited us. Abbas and Ramzan P.Ws. Are not known to us. We are poor persons and cannot think of getting our clothes washed from the washerman.
The P.Ws. Have deposed against me only on account of suspicion and at the instance of police and on the behest of Tufail Goraya."
' She did not appear as her own witness as required under section 340(2), Cr.P.C. To make a statement on oath in disproof of charges and allegations levelled against her. She too had opted to produce defence evidence but later did not produce any evidence.
8. Believing the prosecution evidence Muhammad Rafique was convicted as above while Mst.
Munawar Bibi was acquitted by giving the benefit of doubt of all the charges.
9. The learned counsel for the appellant has argued that the co-accused of the appellant has been acquitted by way of benefit of doubt on the basis of the evidence which is at par with the case against the appellant. It has been further contended that the F.I.R. Has been recorded after due deliberations and unexplained delay and that the accused were taken into custody before the F.I.R. Was recorded. It has also been urged that both the accused have no common intention with each other and that Muhammad Rafique appellant was not a permanent resident of the house of Mst. Munawar Bibi in which she was residing alongwith her children and mother. It has also been urged that nothing has been produced to prove that the accused had been getting their clothes washed at the laundry of the complainant. That the recovery of the dead body has been admittedly recovered on the joint pointation of the accused and is of no value while the other recoveries of wrist-watch, pair of shoes and Dana have been planted on the accused to strengthen the prosecution case and there are no marks of identification on these items to connect them as the property of the deceased. That Muhammad Ramzan P.W.4 is cousin of a counsellor and he is client and friend of the complainant P.W.4. While the other witness Bashir Ahmed has not been produced.
10. So far as the recovery of motorcycle is concerned and the document recovered in course of this recovery of motorcycle from the shop of Khalid Mehmood the learned counsel has stated that it is admitted by Khalid Mehmood P.W.7 that Ghulam Asghar P.W.8 remained posted at Police Station Lytton Road and that he used to get his motorcycle repaired from his shop and that he had purchased the motorcycle from Muhammad Rafique appellant for Rs,21,000. He has also drawn my attention to an important piece of evidence in the cross-examination of the said P.W. That the recovery memo. Exh.P.F. And transfer letter Exh.P.K. Were prepared again in the Police Station. The recovery memo. Indicates that the transfer letter given by Muhammad Rafique was thumb- marked and the sale receipt Exh.P.N. Was also thumb-marked by both the accused and that the signatures of the witnesses were obtained at the police station on both these documents. The learned counsel has also stated that there was no need for the appellant to thumb-mark the documents when his statement under section 342, Cr.P.C. Indicates that he could sign his name in the English language. Hence, all these thumb-impressions have been obtained forcibly to implicate the accused and to use these documents as corroborative piece of evidence to connect him with the murder of the deceased. The place of recovery of the dead body is jointly owned and inhabitated by the family of Mst. Munawar Bibi, and thus, it cannot be stated to be in exclusive possession of any of the accused. Furthermore, disbelieving this evidence which is at par with the case of the appellant the co-accused has been acquitted.
I . The learned counsel for the State has controverted the arguments and argued that the judgment has been based on cogent and legal reasoning and, the sentence of the appellant be maintained.
12. The criminal revision was listed for hearing alongwith this criminal appeal and the name of the learned counsel was also printed in the list but the learned counsel for the complainant nor the complainant has put in appearance to pursue the criminal revision. Thus, there is no option left but to order that the criminal revision is dismissed for non-prosecution.
13. 1 have given my anxious thought to the contentions raised by the learned counsel and have perused the evidence and the record. The arguments advanced by the learned counsel for the State have also been thoroughly considered. I find that the prosecution case bristles that serious infirmities which hit root of the case and prosecution case cannot be accepted at face value keeping in view the shortcomings in the investigation and manner in which the Investigating Officer has tried to build up the case against the accused. Furthermore, when one accused is acquitted on the basis of the same evidence it is legally difficult to maintain the conviction against the other when the evidence against both is identical and the case cannot be distinguished.
14. For reasons enumerated above I feel that the prosecution has not been able to prove its case beyond reasonable doubt and thus, the appeal is accepted and the accused/appellant is given the benefit of doubt and acquitted of all charges. He shall be released forthwith if not required in any other case. The Motorcycle No,6211/LHY qf the deceased shall be returned to the legal heirs of the deceased if and when they apply for its possession to the appropriate Court of law, With these observations the appeal and the revision stand disposed of.