' Saif Ullah and Tariq Mehmood appellants were challaned in the titled case and sent up for trial before Mr. Muhammad Aslam Khan, Additional Sessions Judge, Sheikhupura. Through judgment dated 10-1-1995 both the appellants were convicted under section 302(b)/34, P.P.C. And each of them was sentenced to imprisonment for life and ordered to pay Rs,25,000 each as compensation to the legal heirs of the deceased, in default of payment of the said compensation to further undergo six months' imprisonment. They were also extended the benefit of section 382-B, Cr.P.C.
2. Feeling aggrieved by their conviction and sentence they have challenged the same through this appeal.
3. The murder of Muhammad Safdar aged 16/17 years took place on the night between 27/28th December, 1993 in the area of Chak Laddhaywala Virkan at a distance of eight miles from Police Station Sadar, Muridke. The occurrence was reported by Muhammad Sadiq complainant (P.W.1) father of the deceased at Adda Khori before Muhammad Iqbal S.-I. (P.W.15) through statement Exh.P.A. At 8-15 a.m. On 28-12-1993. It was sent to the police station where formal F.I.R. Exh.P.A./1 was recorded on the basis of statement Exh.P.A. At 8-30 a.m.
4. Briefly the prosecution case as stated by Muhammad Sadiq (P.W.1) is that he has cattle shed and Dera at a distance of 6/7 Killas from his house and. His son Muhammad Safdar slept on the night between 27/28-12-1993 at the said Dera to guard the cattle. The complainant went to his Dera at 6- 00 a.m. And found that the dead body of his son Muhammad Safdar was lying in a Khal near Kikar tree and he found that the throat of the deceased had been cut with Chhuri and the dead body was lying faced downward in the Khal. Leaving the dead body in the custody of his sons Arshad Ali and Muhammad Ashfaq he left to report the occurrence where on his way he met the Investigating Officer and got recorded his statement Exh.P.A.
5. On arrival at the spot inquest report Exh.P.L. And injury statement Exh.P.M. With regard to the dead body of Muhammad Safdar was prepared and the same was sent for post-mortem examination.
In course of spot inspection the police took in possession blood-stained earth. It was made into a sealed parcel and taken into possession vide memo. Exh.P.D. The police also took into possession one wrist-watch Exh.P.3, one wrist-watch Exh.P.4, a pair of Softi Chappal Exh.P.5/1-2, Parna blood- stained Exh.P.6, Sweater blood-stained of the deceased Exh.P.7 and a shirt blood-stained of the deceased Exh.P.8 vide memo. Exh.P.E. From the Dera of the complainant. The abovesaid recoveries were attested by Muhammad Ashfaq (P.W.7), Muhammad Iqbal (P.W.15) and Muhammad Afzal given up P.W. On 5-1-1994 both the accused were arrested by the police and on 12-1-1994 while in police custody Saif Ullah accused led to the recovery of blood-stained Chhuri Exh.P.1 from his Dera which was made into a sealed parcel and taken into possession vide memo. Exh.P.B. Tariq Mehmood accused also in police custody on the same day led to the recovery and got recovered blood-stained Chhuri Exh.P.2 from the said Dera. It was made into a sealed parcel and taken into possession vide memo. Exh.P.C. The abovesaid recoveries were attested by Ghulam Qadir (P.W.6), Muhammad Iqbal S.-I. (P.W.15) and Arshad Ali (not produced). Saif Ullah accused was found to have injuries on his person at the time of his arrest: Injury statement Exh.P.N. Was prepared and he was sent for medical examination. Dr. Muhammad Shahbaz (P.W.16) examined him. The medical report is Exh.P.O. He found the following injuries on his person:--
(1) A healed scratch on the medial border of right clavicle.
(2) A healed incised wound 4 c.m. x 0.1 c.m. x skin deep on the left palm of left hand on the lower part.
6. Dr. Abdul Majeed Mirza (P.W.10) conducted the autopsy on the dead body and found the following injuries on the person of Muhammad Safdar deceased:--
(1) A cut throat 24 c.m. x 4 c.m. Into cutting skin muscles, blood vessels, larynx, trachea, oesophagus, nerves, with cuts on first, second and third cervical vertebrae.
(2) Multiple linear superficial cuts in an area 8 x 5 c.m. On front of right shoulder.
(3) Linear deep abrasion 9 c.m. Long in front of chest upper most part.
(4) Multiple abrasions in area 30 x 8 c.m. Back of chest upper part.
' Injury No,1 was declared to be fatal and grievous and sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and that between post- mortem and death was 24 to 26 hours.
7. After completion of the Investigation both the accused were challaned and sent up for trial in the Court.
8. To prove the charge prosecution produced as many as 16 P.Ws. After close of the prosecution evidence the accused were examined under section 342, Cr.P.C. And the prosecution case was put to them to which they denied. However, Saif Ullah accused in answer to question No,8 regarding his injuries on his person has given the following explanation:-- "I sustained injury No,2 during sharping the blade of my Toka machine two days prior to the occurrence, whereas I sustained injury No,1 as a result of police torture." ' and in answer to question No,9 as to why he has been falsely implicated he has given this explanation:-- "I have been falsely implicated in this case at the instance of Atta Ullah, A.S.-I. Muhammad Sadiq complainant was implicated for having killed Fateh Muhammad, a close relative of Atta Ullah, A.S.-I.
The said Atta Ullah, A.S.-I. Misled the complainant party and the investigating officer by changing the direction of the investigation.Towards us. The recoveries of the watch and that of the Chhuri were falsely planted upon me. I did not make any confession before Muhammad Shafi and Muhammad Azam P.Ws. Likewise Muhammad Malik and Nazar Muhammad P.Ws. Did not meet us near the place of occurrence as stated by them. The story of the prosecution has been concocted due to suspicion caused by said Atta Ullah, A.S.-I. Otherwise I have no enmity to the complainant or I had no grudge against the deceased."
' Tariq Mehmood accused in answer to question No,7 has stated as under:-- "I am first cousin of Saif Ullah co-accused. I have been falsely implicated in this case just because of my relationship with him. One Atta Ullah, A.S.-I. Misled the complainant party and the Investigating Officer by changing the direction of investigation towards us due to suspicion against Saif Ullah. I have no enmity with the complainant and I had no grudge against the deceased."
' Both the accused did not produce any defence evidence nor did they appear in the witness-box as required under section 340(2), Cr.P.C.
9. With the assistance of the learned counsel for the appellants I have gone through the entire evidence and perused the record and head him at length. The learned counsel for the State, on the other hand, has supported the judgment and prays that the conviction and sentence be maintained.
10. The prosecution evidence against the appellants' consists of Waitakkar evidence and extra- iudicial confession which is corroborated by the evidence of recovery and medical evidence. No doubt that all the prosecution witnesses are closely related to the deceased as well as inter se and they have no previous enmity or reason to falsely implicate the appellants. On the other hand the appellants are first cousins inter se and the prosecution has not been able to establish any motive or reason for them to murder the deceased so in this background the entire prosecution evidence and the statements of the accused would be assessed to see as to in what manner and which evidence appears to be believable. It would be pertinent to record here that Saif Ullah appellant is the resident of Laddhaywala Virkan while Tariq Mehmood appellant is not the resident of this village but resides at Kali Sooba in Gujranwala District. The articles which were taken from the Dera of the complainant include a pair of Softi Chappal Exh.P.5/1-2 and a blood-stained Parna Exh.P.6 belonging to Tariq Mehmood appellant while wrist-watch Exh.P.4 is stated to be that of Saif Ullah accused and the witnesses P.W.7 and P.W.15 have not been positively in a position to prove the ownership of these articles connecting them with the accused. Similarly, the witnesses Muhammad Malik and Nazar Muhammad appeared as P.W.2 and P.W.3 and their statements of having met the accused in the manner stated is not very confidence inspiring for the reason that Muhammad Malik says that at 9-00 and 10-00 p.m. They met the accused and Saif Ullah also on his query said that it was he and his cousin Tariq Mehmood while Nazar Muhammad P.W.3 states that at 10-00 and 10-30 p.m. He met the accused and both of them replied on his query. Thus, their evidence is at variance and being night time it is only an identification by voice of only Saif Ullah which is in itself not sufficient proof of identity of a person. Hence this evidence cannot be considered as a very strong incriminating one against the appellants and cannot be said to be intrinsically true to form a basis for conviction.
11. The evidence of extra-judicial confession is being established through Muhammad Shafi P.W.4 and Muhammad Azam P.W.5 and the manner in which this confession statement is recorded cannot be relied upon. Furthermore, Muhammad Shafi P.W.4 was an employee of the police and he was posted in police line Qila Gujar Singh, Lahore and he very boldly admits that he did not enter his departure in the diary of the police line nor did he seek any permission to leave the police line is indicative of the fact that how much respect he has for law and how much he is bound and care for the discipline. He is closely related with the complainant party and the accused were also aware of his relation with the complainant party and, thus, there was no occasion for them to have made any such statement while coming across each other at a railway crossing just by chance.
Thus, this evidence also lacks confidence and cannot be relied upon.
12. It is the fundamental principle of criminal law that the prosecution has to stand on its own legs and prove the case against the accused beyond reasonable doubt but in the present case I find that the evidence adduced by the prosecution in form of Wajtakkar and extra-judicial confession lacks confidence, veracity is doubtful and, thus, cannot be relied upon. The other evidence of recovery of blood-stained Chhuri from the appellants is also not believable for the reason that no accused would keep the weapon as a souvenir for the Police to recover it and implicate himself.
Rather it would be the wish of every accused to get rid of all or any incriminating evidence so that nothing could be connected to him. The explanation of the injuries on the person of Saif Ullah accused given by him in his statement under section 342, Cr.P.C. Is corroborated to the extent of injury No,2 by the doctor who appeared as P.W.16 while the accused regarding injury No,1 says that it was due to police torture but the doctor does not agree with him. However, it is in the evidence of Muhammad Ashfaq P.W.7 that the accused were arrested on the day when the matter was reported while the police record indicates that the accused were arrested on 5-1-1994. If the statement of Muhammad Ashfaq is believed to this extent that the accused were taken into custody on 28-12-1993 then the entire prosecution evidence regarding extra-judicial confession and recoveries at the instance of the accused become highly doubtful and possibility that the accused may have been subjected to some sort of torture or harassment cannot be ruled out.
Furthermore, in an absence of any cogent reason why the accused should commit the murder of the deceased has not been established by the prosecution the accused cannot be saddled with this occurrence. On the other hand, it is admitted by the complainant that he was involved in the murder of one Fateh and that his wheat crop was also burnt is indicative of the fact that there were other people also who could have a reason to commit this murder.
13. The net result that flows from the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellants and thus their appeal is accepted and the conviction and sentence awarded to them is set aside. They were already on bail. Their bail bonds and sureties stand discharged.