' Safdar Shah aged 27 years and Muhammad Ashraf aged 26 years were tried under section 302/34, P.P.C. In case F.I.R. No,59 of 1993 registered at Police Station Baseerpur for having committed the murder of Riaz Ahmed son of Muhammad Ashiq P.W.1 in the Court of Mr. Faiz Rabbani Khan Sial, Additional Sessions Judge, Okara camp at Depalpur. The learned trial Court found both the accused guilty under section 302-B, P.P.C. And both of them were sentenced to life imprisonment each vide judgment dated 14-12-1994. Both the accused were extended the benefit of section 382- B, Cr.P.C.
2. Feeling aggrieved by the conviction and sentence safdar Shah has preferred Criminal Appeal No,26 of 1995 while Muhammad Ashraf has challenged his conviction through Criminal Appeal No,21-J of 1995. Both these appeals are being heard together and shall be disposed of by this judgment.
3. The unfortunate occurrence took place on 16-2-1993 at 2-00 p.m. At Chorasta Mian Khan situated within the territorial jurisdiction of Mauza Arrora Mian Khan at a distance of 9 k.m. From the police station.
4. On 21-2-1993 at 5-30 p.m. Muhammad Ashiq P.W.1 father of the deceased lodged report Exh.PA at the said police station which was recorded by Abdul Karim Inspector/S .H .0. (P. W .9).
5. Briefly the facts of the case are that Muhammad Ashiq who is a Tonga driver while his brothers Niaz Ahmed (given up P.W.) and Mumtaz Ahmed P.W.2 also own tongas and earned their livelihood by plying the same. On 16-2-1993 as he was not feeling well and he took hip son Riaz Ahmed deceased aged 13/14 years to drive the tonga and earn the daily bread. At 2-00 p.m. Muhammad Ashraf and Safdar Shah appellants came to the tonga stand and requested that they be taken to Mauza Kandowal and for this it was decided that they pay fare of Rs,60. The deceased left with the accused in presence of Niaz Ahmed(given up P.W), Mumtaz Ahmed P.W.2 and Muhammad Ashiq P.W.1 towards Kandowal. On that night he did not .Return home and the complainant started searching for him and Muhammad Ramzan P.W.3 met them and told them that he had seen the deceased taking his tonga, in which Muhammad Ashraf and Safdar Shah were passengers towards Mauza Kandowal. The complainant showed his suspicion that his son Riaz Ahmed had been abducted with the intention to murder or he had been murdered, whereupon the case was registered under section 364, P.P.C. On 22-2-1993 the Investigating Officer prepared injury statement Exh.PG and inquest report Exh.PH in respect of the dead body of Riaz Ahmed deceased which was lying in the courtyard of Civil Hospital, Hujra Shah Muqeem where it was brought by the complainant who had found the same lying in a bag in a wheat field of one Mansab Ali situated in Killa No,24 square No,1 near Mustafa Abad minor.
6. The autopsy on the dead body was conducted by Dr. Sagheer Ahmed, Medical Officer who appeared as P.W.11 and he found the following injuries on the person of the deceased:-
(1) A legature mark 30 c.m. x 2 c.m. Extending from posterior side of neck just below nuchal line to right side of neck passing in front of neck just above the thyroid cartilage and joined the ligature mark on posterior side of neck.
(2) Multiple abrasion in area of 8 c.m. x 4 c.m. On front of neck.
(3) Multiple contusion marks 10 c.m. x 8 c.m. All around lower part of right forearm, with wrist joint.
(4) Multiple contusion marks in an area of 9 c.m. x 8 c.m. All around the lower part of right forearm and wrist joint.
(5) Multiple abrasions in an area of 7 c.m. x 4 c.m. On the posterior side of right elbow joint.
(6) Multiple abrasion 1.5 c.m. x 1 c.m. On lateral and upper part of right thigh.
(7) Multiple abrasions in an area of 4 c.m. x 1.5 c.m. On medial and upper part of right thigh.
(8) Multiple abrasion in an area of 4 c.m, x 1 c.m. On medial and upper part of the left thigh.
' Death in his opinion was caused by asphyxia due to suffocation. All the injuries were ante-mortem caused by blunt weapon. Time between death and injuries was immediate while between the death and post-mortem was 5/6 days. He obtained three anal swabs and sent the same to the chemical examiner which were found stained with setnens vide report Exh.PM.
7. The accused were arrested on 3-3-1993 by Abdul Karim, Inspector. S,H.O. (P,W.9). Safdar Shah accused while in police custody led the police party and got recovered horse P1 from his house which was taken into possession by the police vide memo, Exh.PB. Similarly on the same day Muhammad Ashraf Accused while in police custody led the police and got recovered Tonga Exh.P2 from his residential house which was taken into possession vide memo. Exh.PC. Both the recoveries and memos. Were attested by Mumtaz Ahmed P.W.2, Niaz Ahmed (given up P.W) and Abdul Karim P.W.9. After completion of the investigation the accused were challaned and sent up for trial.
8. To prove the charge, prosecution produced 11 witnesses while Muhammad Ashraf and Safdar Shah accused were examined under section 342, Cr.P.C. And they denied the prosecution case and stated that they had been falsely implicated in this case. They did not appear as their own witnesses as required under section 340(2), Cr.P.C. Nor did they produce any defence evidence.
9. With the assistance of the learned counsel for the appellants the record of the case has been perused and I have been taken through evidence recorded by the learned trial Court. The learned counsel for the appellants have been heard at length and the learned counsel for the State has also been heard.
10. The prosecution to prove the fact that the deceased had left in company of the accused relied on the evidence of Muhammad Ashiq P.W.1, Mumtaz Ahmed P.W.2 while Niaz Ahmed was not produced. All these three persons are A very closely related to the deceased. Muhammad Ashiq P.W.1 being his father {{PAGE CUT IN BOOK}} ile Mumtaz Ahmed P.W.2 and Niaz Ahmed (given up P.W) being the ethers of Muhammad Ashiq.
The deceased left the tonga stand with the used at 2-00 p.m. But none from the locality or any independent tongs driver I substantiated the case that the deceased actually left with the accused on that e. Furthermore, it is also not understandable that if the father was not fit to the tonga then why did he allow his young minor son to accompany the used when he could have asked one of his brothers to take his tonga and drop accused at their destination which inevitably forces me to draw this inference t none of these P.Ws., were present there at the relevant time and it is yet to proved whether the deceased was plying tonga or not. To strengthen the last n evidence Muhammad Ramzan has appeared as P.W.3 who states that he had n the deceased in company with the accused on that day. No doubt that thammad Raman P.W.3 has no relation either with the complainant, the :eased nor he has any enmity with the accused but the question is that how he )pened to know the accused by name and how he happened to recognise the :eased when there is no evidence of knowing them personally and, thus, it s just by chance that he was there at that specific time on that day. Thus, his dence cannot he accepted. Furthermore, he appeared before the police on .2-1993, his statement was recorded belatedly by the police whith, too, in to of that delay is incomplete, insufficient and not worth reliance.
11, Muhammad Islam appeared as P,W.4 and he stated that on that fateful ht he was watering his field and he saw a tonga standing on the road and two sons going across the Rajbah and throwing a bag into wheat filed which own query he was told that it. Was waste grass in the bag and it was from that very ce that the dead body of the deceased was recovered by the complainant. Dugh the witness states it to be a moonlit night yet he had seen the tonga from istance of 4 KanaIs from where under this light the identification of a person [not be made easily and relied upon. Thus, the evidence of this P.W. Is also l of infirmities and not worth reliance.
12. Shah Bahram P.W.10 states that both the accused made an extra-judicial ifession before him while he was getting his car filled with petrol at the Petrol tion. The confession is a joint confession which is nullity in the eye of law cannot be considered as legally admissible evidence. Hence this evidence is ed out of consideration on the legal plane as well as factual one as the accused re stated in their statements that they were not having very cordial relations :h this witness prior to this occurrence.
13. Further the prosecution has not charged the accused under section 377 '.C. And thus the anal swa bs taken by the doctor and found stained with nens by report Exh.PD, brings no guilt towards the accused.
14. The last incriminating evidence against the appellants is that horse h.P1 was recovered at the instance of Safdar Shah accused while tonga Exh.2 s recovered at the instance of Muhammad Ashraf. For the sake of arguments.Even if it is believed that horse and the tonga were recovered and that the recovery stands proved beyond doubt, it may be, however, strong yet it cannot be alone made a basis for conviction, but I am afraid that this recovery appears to have been planted to strengthen the prosecution case. The evidence collected to prove case against the accused is that they were found getting rid of the dead body of the deceased by disposing it of in a wheat field at night time then the question is why should they keep the horse and the tonga of the deceased in their house. They could have easily left the tonga and the horse in some uninhabitated area to be found later on and not kept it as souvenir for police to recover the same from them and to implicate them for an offence which was not witnessed by anybody.
15. Thus, from the above discussion it precipitates that the prosecution has miserably failed to bring home the guilt of the accused, and, therefore, the D appeals of the appellants are accepted and they are acquitted of the charge. They shall be released forthwith if not required in any other case.