1. SARDAR MUHAMMAD DOGAR, J.---Wahid Bakhsh 38, Haji Khadim Hussain 50, Riaz Hussain 28 and Ghulam-Hazir 30, were tried by Additional Sessions Judge, Kot Adu, District Muzaffargarh under section 364/302 read with section 34, P.P.C. and section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' Vide judgment, dated 18-4-1995, learned trial Judge convicted them under sections 364/34 and 302/34, P.P.C. and awarded sentences as follows:--- Under section 364/34, P.P.C.= R.I. for ten years to each plus to pay a fine of Rs,5,000 each in-default whereof to further undergo R.I. for one year.
3. Under section 302/34, P.P.C.= Each sentenced to undergo imprisonment for life.
4. They were acquitted of the charge under section 17 of the said Ordinance.
2. F.I.R. Exh.PC/1 was registered in this case at Police Station Mehmood Kot by Muhammad Arif, M.H.C. (P.W.7) on 23-3-1994 at 9-30 a.m. on receipt of application Exh.PC presented by Akhtar Ali Pirzada (P.W.3) to Saadullah Khan S.I. (P.W.5) on the same day at Rural Health Centre village Gujrat District Muzaffargarh on the same day at 9-00 a.m.
5. According to F.I.R. complainant was working as Train Clerk at Railway Station Lal Peer. He was on duty from 4-00 p.m. to 12-00 midnight. After duty he had slept at the Railway Station. On the day of occurrence he received information in the presence of Farooq Gilani, Assistant Station Master and other Railway employees through Ghulam Hazir son of Muhammad Bakhsh (appellant herein) at 6-00 a.m., that Malik Muhammad Shafi, Station Master Lal Pir had been caught by residents of Basti Qaim Wala and beaten. On this information complainant accompanied by Farooq Gilani and Amir Sarfraz son of the Station Master (deceased) went to Basti Qaimwala. Reaching there, they saw Ghulam Hazir (above named) Haji Khadim, Wahid Bakhsh and Riaz appellants having detained.
6. Muhammad Shafi in a room in serious injured condition. On inquiry by the complainant Malik Muhammad Shafi stated that soon after he had got down from 179 train, abovenamed four persons caught him, tied his mouth and brought him into this Basti And had beaten him during the whole night. He also stated that the accused had removed a sum of Rs,12,000 from his pocket and a golden ring. Soon after making statement he (deceased) lost conscious.
7. Complainant stated that local police reached there at 9-30 a.m. The injured was removed by the Police to Rural Health Centre Gujrat for treatment on a private jeep. However, he expired on the way. In spite of that hoping that he might still be alive they took him to the hospital. The doctor examined him and declared him dead.
8. 3.Saadullah Khan S.I./S.H.O. Police Station, Mehmood Kot after despatching application Exh.PC to the police station for registration of case took up investigation. After preparing injury statement Exh.PH and inquest report Exh.PJ he despatched the dead body for post-mortem under the escort of Saeed Ahmad constable. Thereafter, he visited the spot and prepared rough site plan Exh.PQ, Last wearings of the deceased, i,e,, blood-stained shirt P.1, Shalwar P.2 and Finger ring P.3, produced before him by Saeed Ahmad constable were taken into possession by him vide memo. Exh.PA. He recorded statements of the P.W4 under section 161, Cr.P.C. and arrested all the four accused' on 24- 3-1994.
9. On 29-3-1994 Wahid Bakhsh led to the recovery of Sota Exh.P-4, watch Exh.P.5 and printed application Exh.P.6, from his house which he (Sub-Inspector) took into possession vide memo.
10. Exh.PD. Handkerchief Exh.P.7, a sum of Rs,2,100 Exhs.P.8/1 to 21 (notes of hundred denomination) and application Exh.P.9 got recovered on the same day by Khadim Hussain were taken into possession by him vide memo. Exh.PE. Currency notes Exh.P.10/1 to 30 (each note of hundred rupee denomination) Writing Exh.P.11 and printed note, Exh.P.12, got recovered by Ghulam Hazir on the same day were taken into possession vide memo. Exh.PF. Finger ring Exh.P.13 and application Exh.P.14 got recovered by Riaz were taken into possession vide memo. Exh.PG. The Sub-Inspector had also prepared site plans Exh.PD/1, Exh.PE/1, Exh.PF/1 and Exh.PG/1 respectively of the places of recoveries from the accused (appellants).
11. After completion of necessary investigation challan was submitted by him to Court.
12. 4.Statements of seven P. Ws. were recorded at the trial.
13. Dr. Tanweer Ahmad Qureshi who had performed autopsy on the dead body of Muhammad Shafi on 23-3-1994 at 3-50 p.m. appeared as P.W.6. He had noted following injuries on his body:--- (1)Swelling of 1.5 c.m. diameter on right top and back of skull.
14. (2)A contusion with swelling 2x2 c.m. covering right outer upper eye lid.
15. (3)Multiple contusions with swelling covering whole of nose.
16. (4)Multiple contusions with blackening and swelling on inner sides of both upper and lower lip.
17. (5)Multiple contusions with swelling covering left outer eye.
18. (6)Contusions five in numbers an area 7x6 c.m. covering back of left elbow joint.
19. (7)Contusions 1x2 cm. on inner dorsum of left hand.
20. (8)Contusion 5x2 c.m. with swelling on top of left shoulder.
21. (9)Multiple contusion an area 6 x 3 c.m. on top of right shoulder.
22. (10)Contusion with swelling an area 3 x 2 c.m. on outer right upper arm.
23. (11)Contusion five in number of variable length on back of right elbow joint.
24. (12)Marked contusions with swelling covering right outer fore-arm an area 10x6 c.m.
25. (13)Multiple contusion an area 3x4 c.m. on back of left hand and wrist joint.
26. (14)Two contusions 2x1 c.m. each on inner side of right elbow joint.
27. (15)Two contusions (blackish) on mid of right little and ring fingers.
28. (16)Contusions covering whole back of right big finger.
29. (17)Abrasions 2x2 c.m. on right outer inguinal-area.
30. (18)Contusion with blackening 3x1 c.m. on right outer front upper thigh.
31. (19)Multiple contusions an area 4x5 c.m. on mid right inguinal region.
32. (20)Contusions 4 in number an area 10x12 c.m. on front of right ankle joint.
33. (21)Three small abrasions an area 3x3 c.m. on front of right ankle joint 1.5 c.m. interior to injury No,20.
34. (22)Two small abrasions covering left front of mid leg with swelling around.
35. (23)Contusion 2x6 c.m. on outer left knee joint.
36. (24)Multiple abrasion with swelling covering left knee joint.
37. (25)Two contusions an area 6x2 c.m. on outer left knee joint.
38. (26)Marked blackish contusion with swelling covering whole of right buttock, outer and inner, upper and lower part of it with multiple abrasion and blackening six in numbers in the mid of right buttock, area completely blackened and swollen and extending up to the back of right upper thigh.
39. (27)Marked and huge blackish contusion (combination of multiple smaller ones) with swelling covering whole and lower parts of it with seven abrasions in the mid of contusion extended up to back of left upper thigh.
40. (28)Contusion 8x2 c.m. on mid outer right back of chest.
41. (29)Scrotal area completely swollen and reddened containing multiple abrasion of valuable length and width at variable places.
42. (30)Multiple contusion an area 15 x 20 c.m. on mid back of right and left chest.
43. (31)Contusion 2x3 c.m. on mid back of root of neck.
44. (32)Contusion 4x2 c.m. outer of injury No,31 on right side.
45. (33)Contusion 3 x 2 c.m. outer to injury No,31 on left side.
46. (34)Multiple abrasions covering right scapular region.
47. (35)Multiple contusions covering left shoulder blade.
48. (36)Marked contusion covering whole mid of lumber region.
49. (37)Contusion 3x4 c.m. on left outer lower chest.
50. (38)Contusion 4x2 c.m. outer to injury No,37.
51. (39)Abrasion with contusion 2x3 c.m. on right outer cheek in the mid just closed to lobule of right ear."
52. There was a blackish haematoma at the skull beneath Injury No,!, alongwith linear fracture of occipital bone on right side, haematoma was compressing menegies and brain matter. There was slight , laceration in mengengies at the said area.
53. According to his opinion death had occurred due to severe haemorrhage (inter capillaries) and shock (pain, vasovagal and hypovolumice) and brain damage/compression which were sufficient to cause death in ordinary course of nature. All injuries collectively and injuries Nos.1, 26, 27 and 29 specially had caused death. Injuries were caused by blunt weapon and were antemortem in nature. Injuries Nos.! and 29, were dangerous to life, while rest were simple in nature. The probable time between injuries and death was immediate. Duration between death and post-mortem was within 12 to 18 hours. He stated that after the post-mortem he had handed over a finger ring and last worn clothes of the deceased to Saeed Ahmad constable. During cross-examination he stated that the clothes of the deceased had been stained with blood because of oozing of blood from multiple abrasions.
54. 5.Akhtar Ali Pirzada, complainant, while appearing as P.W.3 repeated the fact given by him in application Exh.PC on the basis of which F.I.R. Exh.PC/1 had been registered at the police station. He added that the accused used to commit theft of oil. Deceased who was Station Master used to stop him from committing theft and the accused murdered him due to that. During cross- examination he stated that there were complaints of theft of oil from Lal Pir Railway Station but no case of theft of oil had been registered. He conceded that he had not mentioned in application Exh.PC about the motive, (theft of oil by the accused). He stated that after he had narrated the occurrence to the Thanedar he had written the same of his own. He explained that on his dictation Exh.PC was written by another person whose name he does not know. He stated that many persons had gathered at the spot from the locality when they reached the place of occurrence. According to him place of occurrence was a Kotha surrounded by agricultural land. He stated that Ghulam Hazir after having informed them, had immediately gone back. According to him they had reached the spot at 7-30 a.m. covering a distance of 3/4 acres. He disclosed that they had informed the higher officers of Pakistan Railways Police officers. According to him the deceased was removed to the hospital in a jeep but he did not know as to who had brought the jeep and to whom it belonged. He stated that Amir Sarfraz had remained with him when he had gone to the spot and went to the hospital. He expressed inability to give the time of stop of railway train No,178 or 179 up and down. According to him 36 Railway employees were posted at Railway Station Lal Peer. He denied the suggestion that he had made a false statement or that the story was concocted by the police.
55. 6.Amir Sarfraz son of the deceased appeared as P.W.4. He corroborated the statement made by Akhtar Pirzada, P.W.3. However, he did not say any thing about the motive for the occurrence. He had made one addition by stating that the deceased had also told them that the accused had removed his watch. He claimed to have identified the dead body of his father at the post-mortem examination and witnessed the recoveries at the instance of all the appellants alongwith Saadullah Sub-Inspector. He stated that watch Exh.P.6 and handkerchief Exh.P.7 and Finger ring Exh.P.13, recovered from the accused belonged to his deceased father. During cross-examination he stated that his father was wearing Joggar (shoe) when he had left the house before occurrence. But he had not found the Joggar of the deceased. He stated that from the Railway Station he had gone to the spot alongwith Akhtar Ali and Farooq Gillani. According to him the door of the Kotha where his father was lying injured on the ground was open. According to him his clothes were stained with blood and blood was coming out from his mouth. According to him many other persons had come there. He expressed inability to state that as to who had arranged the jeep on which the deceased was removed to hospital. He stated that the S.I. had recorded his statement on the day of occurrence when he had returned from Muzaffargarh. He did not know the salary of his father. He stated that his father owned 6/7 acres of land in Shujaabad. He stated that he had not informed about the occurrence to Rana Naseem Akhtar, Ex.Member Union Council.
56. However, on confrontation he was found to have been stated so in his statement before the police in Exh.DB. Although he denied that he had stated that Rana Naseem Akhtar reached the place of occurrence before police but he was found to have stated so in Exh.DB. According to him all the four accused were in the room with his father. He admitted that his father had not made any mention of any watch or papers. Although he claimed that his father had told them that he had Rs,12,000 with him and he claimed that he had stated that fact in his statement before the police but the same was not found recorded in Exh.DB. He gave out that Railway employees were not summoned by the police during investigation. He denied the suggestion that none of the accused had got anything recovered and that he had made false statement in that regard. He denied the suggestion that he had not reached the place where his father was found injured. He also denied the suggestion that no statement was made before him by the deceased. He denied the suggestion that he had come to hospital on being called by the police.
7. Saadullah Khan, S.I./S.H.O. who had received application Exh.PC from Akhtar Pirzada, sent the same for registration of the case to the police station, visited the spot, got the dead body post- mortemed, arrested the accused, taken into possession the articles got recovered by each of them, had investigated the case and submitted challan to Court appeared, as P.W.5 and gave those details. During cross-examination he stated that he had gone to the spot on 9-4-1994 alongwith Akhtar Ali, Amir Sarfraz and Farooq Gillani P.Ws. to point out the place to Halqa Patvari who had prepared site plan on that day. He stated that he had received the information about the occurrence while being on patrol in Gujrat Town through Ghulam Mustafa constable. However, he admitted that he had not recorded the statement of Ghulam Mustafa constable. He admitted that he had noted only five injuries on the dead body in his statement Exh.PH. He admitted that the place of occurrence was 180 karams from the oil Depot and 191 Karams from the Railway Station.
57. He stated that there was a fire brokerage near Oil Depot and Fire brigades had been summoned from Multan Dera Ghazi Khan, Leiah and Muzaffargarh.
58. He stated that he had come to know about fire at 5-35 p.m. He denied the suggestion that the deceased had committed theft of oil. He admitted that he had not made any investigation regarding theft of oil from Depot. He also admitted that he had not made inquiry as to whether the deceased had, rupees twelve thousands with him. He admitted that he had not joined any respectable of the area during the recoveries from the accused. According to him the place of occurrence was the place of abduction and murder. He conceded that there was no eye-witness of abduction of the deceased by the accused. He denied the suggestion that the place of occurrence shown by him was not the place where actually the incident had taken place. He admitted that he had not joined any employee of Pakistan Railways during investigation. He denied the suggestion that actually nothing had been recovered from any of the accused and that he had planted recoveries on the accused.
59. Qadir Bakhsh Patwari who had prepared Exh.PB and Exh.PB/1 on 9-4-1994, appeared as P.W.2 and verified that fact. During cross-examination he stated that he was summoned by the S.H.O. to the police station at 8-00 a.m. and Saadullah Sub-Inspector had accompanied him from there to the spot. He stated that none else was with them at the spot. Thus, he contradicted the statement of Saadullah, that P.Ws. had accompanied him to the spot. Muhammad Arif H.C. who had formally registered case Exh.PC/1, appeared as P.W.7 and stated so.
60. During cross-examination he stated that the finger ring which had been brought to the police station by the constable after post-mortem was of brass.
61. 87 The appellants during statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. Whid Bakhsh took up the plea that Muhammad Shafi and Farooq Gillani used to commit theft of oil with the help of menial staff and that he had informed P.S.O. authority about the same and that he was involved in this case due to that.
62. Appellant Haji Khadim Hussain took up the plea that Malik Muhammad Shafi and other staff of the Railway Station used to commit theft of oil and the deceased required him to carry the stolen oil on his tractor trolly which he refused and he was involved in this case due to that.
63. Appellant Riaz Hussain stated that he was a peon in P.S.O. and he had seen the deceased committing theft of oil from the Depot and had reported against him and so he was involved in this case.
64. Ghulam Hazir took up the plea that he had been involved in this case for being cousin of Riaz Hussain accused. None of the appellants made statement under section 340(2), Cr.P.C. They did not produce any evidence in defence.
65. 9.We have gone through the evidence with the assistance of the learned counsel for the appellants and considered the arguments of the learned counsel for the parties in the light of the evidence on record.
66. 10.In this case there is no eye-witness of abduction and infliction of injuries, which resulted in the death of the deceased. There is no judicial confession even. No motive for the occurrence was mentioned in the F.I.R. Although P.W.3 and P.W.4 stated at the trial that the accused used to steal oil and the deceased used to stop them but they neither claimed, that deceased had seen the appellants committing theft nor claimed that the deceased had ever in their presence warned or stopped the appellants from committing theft of the oil. The Investigating Officer also did not investigate this aspect of the case. He did not collect any evidence in that regard. The only evidence, on which the case of the prosecution rests, is, the dying declaration alleged to have been made by the deceased before P.W.3 and P.W.4 at the place where he was allegedly found lying injured and the recovery of the Dangs and the articles belonged to the deceased from the appellants.
67. 11.So far as recoveries of weapons i,e, Dangs are concerned, they are of no consequence as they were not stained with blood and even the deceased had not stated that he had been inflicted injuries by the accused with Dangs. The alleged recovery of watch at the instance of Wahid Bakhsh was also of no consequence as it is not stated in the F.I.R. that the deceased had told the P.Ws. that he was wearing wrist watch and that the wrist watch had been taken away by the accused. Amir Sarfraz P.W.4 son of the deceased admitted during cross-examination that he had not mentioned the fact of watch having been taken away by the accused in his statement Exh.DB before the police. Although it is mentioned in the F.I.R. that the accused had taken away the ring of the deceased but queer aspect is that the deceased at the time of post-mortem examination was found wearing a ring which had been removed by the doctor and handed over to the police as last wearing of the deceased. If the accused/culprits had taken away one ring they would have taken the other ring as well. The recovery of ring, therefore, at the stance of Riaz Hussain appellant was also of no consequence. The evidence of recovery of handkerchief at the instance of Khadim Hussain was also of no consequence as it is not stated in the F.I.R. that the deceased had told the P.Ws. that he had an handkerchief with him and that the same had been taken away by the accused. The recovery of some papers at the instance of the appellants was also of no consequence as they have no incriminating evidentiary value. The papers are concerning persons other than the deceased and the accused named in the F.I.R. The evidence of recovery of currency notes, at the instance of Ghulam Hazir and Khadim Hussain also does not advance the case of the prosecution as there was no special mark on these notes. It is not even mentioned in the F.I.R. that the amount which deceased had in his possession consisted of hundred rupee denomination notes. This fact was not stated even at the trial by any of the P.Ws. 3 or 4.
68. For the aforesaid reasons the evidence of recovery neither connects the appellants with the crime nor advance the case of the prosecution.
69. 12.In this case the place of occurrence is also doubtful. In that, if it is on record that the injuries of the deceased had bleeded. It is also claimed by the witnesses that the deceased had been kept in the Kotha where he had been caused injuries for a long time. If that was so, blood must have been found lying there. The Sub-Inspector who had visited the spot and the P.Ws. who had reached the spot before the police did not state that they had seen blood lying there. Blood stained earth had also not been taken from the spot.
70. 13.The statements of P.W.3 and P.W.4 about the conduct of the accused also do not inspire confidence. Had the appellants committed this crime, Ghulam Hazir would not have himself gone to the Railway Station to inform the P.Ws. Even if he had committed that folly he would not have hurried back to the place of occurrence and stayed there till the arrival of the witnesses. The statement made by P.W.4 that when they had reached the spot all the accused were also sitting there is also in consonance with guilt of accused. If they had committed the crime they would not have remained sitting at the spot with injured person till the arrival of the witnesses fearing he may tell the witnesses. The conduct assigned to the accused by the witnesses is not only highly improbable but unbelievable too.
71. ' In any case had, if all or any of them had been at the spot they would have been caught at the spot after the deceased had made the statement against them. It is on record that many persons had already collected there. Obviously those persons alongwith the P.Ws. would have not allowed the accused to run away, especially when none of the accused was armed with any thing. No witness stated that accused were armed.
72. 14.The evidence of the oral dying declaration deposed to by P.W.3 and P.W.4 also does not inspire confidence. The first and foremost thing in that regard, is, it is unbelievable that the deceased having suffered injuries, found on his body during post-mortem could have remained conscious. In fact after having suffered such a large number of injuries serious in nature would not have remained in a position to make statement. It is also strange that he remained conscious only waiting for the witnesses to make statement before them. The witnesses categorically stated that deceased lost conscious immediately after being making statement.
73. Apart from all what has been noted above the presence of Amir Sarfraz P.W.4 'son of deceased at the spot is also highly unbelievable. One thing which contradicts his claim in a very obvious manner is that F.I.R. in this case was lodged on application submitted by Akhtar Pirzada. If the son of the deceased was present and if the statement had been made by the deceased in his presence, it is illogical that he would not have become the complainant. The presence of Akhtar Pirzada also is very doubtful. His claim of having reached there alongwith the son of the deceased is highly untenable. Actually his claim of having stayed at the Railway Station till morning after being free from duty at 12-00 night was also very doubtful.
74. There are also some shortcomings in the statement assigned to the deceased. The short comings are, that he did not mention as to where from he had been abducted and caused injuries? He did not mention the weapon or weapons with which he had been inflicted injuries? Although the investigating officer showed that a wrist watch was recovered from one of the accused but the deceased had not stated that.
75. 15.The net result of the above enunciation of evidence, and discussion, is, that here is a case where there is no ocular account of either abduction or of commission of murder. There is no evidence of motive. There is no judicial or extra judicial confession of the accused. There is no evidence of dying declaration before a competent authority. The only evidence relied upon by the prosecution is oral dying declaration alleged to have been made by the deceased before his son and a colleague, and some articles alleged to have been recovered from the appellant. The statements of P.W.3 and P.W.4 who deposed about the dying declaration has been found to be highly improbable and unreliable. The evidence of recovery is also not reliable. Moreover, the same is also deposed by Amir Sarfraz son of the deceased who has not been held reliable.
76. For all the reasons noted above grave doubts have arisen in our mind about the guilt of the appellants. The appeal is, therefore, allowed and the appellants are acquitted by way of grant of benefit of doubt. They are in jail. They shall be released forthwith if not required in any other case.