' BASHIR A. MUJAHID, J.--- The appellants, Ijaz Ahmad (32) son of Khan Bahadar and Sher Bahadar
(19) son of Niaz Ali, were tried alongwith their acquitted co-accused, Khan Bahadar, Ali Bahadar, Intekhab Ahmad, Muhammad Tariq and Din Muhammad, for the charge of murder of Muhammad Abbas by the learned Additional Sessions Judge, Narowal, and were convicted under section 302(b), P.P.C., and sentenced to death each, vide judgment, dated 12-12-1997.
2. The complainant Abdul Razaq P.W.1 son of Muhammad Ramzan made a written application Exh.P.A. To Tassaduq Hussain, Sub-Inspector/ S.H.O., Police Station Baddomallhi, on 30-9-1995 at 11- 30 a.m. When the latter was on patrol duty alongwith other police officials at bus-stop Chandarke- Mangoley, stating therein that on 28-9-1995 at about 10 p.m. His real brother Muhammad Abbas went to the land for its irrigation and did not return and on a search he was not found but his Parna (scarf) was found on the way leading from village Dhilli to Bogal. The complainant further stated that at 11 a.m. On 30-9-995 he was informed that a dead body was lying in the paddy field in revenue estate of Mouza Boga, on which he and his father went to the spot and identified the dead body of his brother Muhammad Abbas. Many people were attracted to the spot alongwith Noor Muhammad son of Bheem Khan and Muhammad Din son of Bagdil Khan, who told the complainant that on 28-9-1995 at about 10-30 p.m. They had seen Muhammad Abbas deceased going to the field with a Kassi and he was being chased by Khan Bahadar son of Niaz Ali, Sher Bahadar son of Ali, Din Muhammad and Intekhab Ahmad sons of Muhammad Iqbal and Muhammad Tariq son of Imam Khan. Complainant suspected these persons for the murder of his brother Muhammad Abbas due to the quarrel about two and a half months before the occurrence, having taken place between the deceased Muhammad Abbas and Khan Bahadar and Ijaz Ahmad over turn of water, which matter was compromised, but the accused had this grudge in their hearts and they have murdered Muhammad Abbas in furtherance of their common intention.
3. The application Exh.P.A. Was sent to the police station on the basis of which formal F.I.R. Exh.P.A./1 was recorded. Tassaduq Hussain, SubInspector/S.H.O. Went to the spot, prepared the injury statement Exh.P.N. And inquest report Exh.P.O., collected the blood-stained earth from the place of occurrence vide memo. Exh.P.G. And sent the dead body to Civil Hospital, Narowal, for post-mortem examination.
4. Dr. Imtaiz Ahmad Chatha P.W.8 on 1-10-1995 conducted the postmortem examination on the dead body of deceased Muhammad Abbas and found the following injuries on it:-
(1) A circular wound 0.5 c.m. x 0.5 c.m. On right side of forehead, 2 c.m. Above eyebrow.
(2) A circular wound 0.5 c.m. x 0.5 c.m., 1 c.m. Above injury No, 1 .
(3) A circular wound 0.5 c.m. x 0.5 c.m. On front of forehead, 2 c.m. Below hair margin.
(4) A circular wound 1 c.m. x 1 c.m. About 1 c.m. Above left eyebrow.
(5) A circular wound 1 c.m. x 1 c.m. On left side of forehead, 1 c.m. Below injury No,4.
(6) A circular wound 0.5 c.m. x 0.5 c.m. On right side of chin.
(7) A circular wound 1 c.m. x 1 c.m. On front of left shoulder.
(8) A circular wound 1 c.m. .x 1 c.m. On front of right side of chest, 6 c.m. Below clavicle.
(9) A circular wound 1 c.m. x 1 c.m., 7 c.m. Below injury No,8.
(10) Circular wound 1 c.m. x 1 c.m. On front of right leg 4 c.m. Below knee.
(11) Circular wound 1 c.m. x 1 c.m. On front of wrist at its middle.
(12) An oval wound 1.5 c.m. x 1 c.m. On the left side of chest at the upper part, 4 c.m. From midline.
(13) An oval wound 1.5 c.m. x 1 c.m. On the back of right side of chest at the lower. Part 4 c.m. From midline.
(14) A crushed wound 8 c.m. x ..- at the sole and inner part of right foot.
5. On 17-10-1995 the Investigating Officer arrested the accused persons and on pointing out of Ijaz Ahmad recovered .30 bore pistol vide memo. Exh.P.E. On 31-10-1995 on pointing out of Sher Bahadar, he recovered the wrist watch belonging to the deceased Muhammad Abbas vide memo. Exh.P.I.
And on pointing out of Ijaz Ahmad accused he recovered identity card of the deceased and cash amounting to Rs,29 vide memo. Exh.P.H. On 25-10-1995 place of recovery of dead body was pointed out by Sher Bahadar and Ijaz Ahmad accused. Thereafter, he completed the investigation and challaned the accused persons under section 302/148/149, P.P.C. To face the trial. The accused persons pleaded not guilty and claimed trial.
6. The prosecution produced as many as 14 witnesses in support of its case. P.W.1 Abdul Razaq is the complainant, who reiterated the story of the application Exh.P.A., which was moved by him to the Investigating Officer. He further submitted that he also produced Parna (scarf) belonging to the deceased before the Investigating Officer, which was taken into possession vide memo. Exh.P.B.
P.W.2 Kazim Hussain recorded the formal F.I.R. Exh.P.A./1 on the basis of written complaint Exh.P.A.
P.W.3 Munawar Ahmad and P.W.4 Shahbaz Ahmad are the police officials and formal witnesses.
P.W.5 Muhammad Din son of Bagh Dil Khan is a witness of last-seen and of recovery memos.
Exhs.P.E., P.F. And P.G. P.W.6 is Ali Muhammad son of Nabi Khan, before whom the appellants confessed their guilt jointly. P.W.7 Feroze Din son of Arjan Khan is witness of recovery memos.
Exhs.P.H and P.I. P.W.8 is Dr. Imtiaz Ahmad, who conducted the post-mortem examination of the dead body of the deceased Muhammad Abbas. P.W.9 Manzoor Hussain son of Buddhey Khan had identified the dead body, while P.W.10 Muhammad Niaz Khan A.S.-I., had attested the memo.
Exh.P.B., by which the Investigating Officer took into possession Parna (scarf) belonging to the deceased. P.W.11 Muhammad Akhtar son of Abdul Wahab is the witness of conspiracy, who stated that he alongwith Noor Muhammad heard all the accused persons conspiring inside the Haveli of Master Wakil to commit the murder of Muhammad Abbas. P.W.12 is Zaka Ullah Patwari, who prepared the site plan of the place of occurrence Exh.P.J. P.W.13 Muhammad Rashid S.-I. Is witness of recovery memo. Exh.P.B.. P.W.14 is Tassaduq Hussain S.-I./S.H.O., who got the case registered, arrested the accused and after completing the investigation, sent up the accused persons to face trial. Noor Ahmad son of Bheem Khan, Muhammad Ilyas Khan and Abdul Wahab P.Ws. Were given up by the prosecution.
7. No witness was examined by the defence. The accused did not opt to appear as their own witnesses under section 340(2), Cr.P.C. However, in their statements under section 342, Cr.P.C. They pleaded innocence and false implication on account of enmity and political rivalry.
8. On completion of trial, the learned trial Court passed the impugned judgment.
9. By way of instant appeal (Criminal Appeal No,791 of 1997) the appellants, Ijaz Ahmad and Sher Bahadar, have challenged their conviction and sentence, whereas through Criminal Appeal No,37 of 1998, the complainant has called in question the acquittal of co-accused of the appellants and a reference under section 374, Cr.P.C., has been made by the learned Additional Sessions Judge, Narowal, for confirmation of death sentence. We are disposing of all the matters by way of this judgment.
10. It has been argued on behalf of the appellants that it is a case of no evidence, as it was an unwitnessed occurrence; the last-seen evidence does not inspire confidence; the alleged motive is weak and does not connect the appellants with the commission of the alleged offence; the joint extra-judicial confession is not admissible under the law; the recovery of weapons is of no value, as the alleged weapons had neither been produced before the Court nor they were exhibited; the medical evidence is not corroborated by any piece of evidence; the appellants were arrested on the basis of suspicion; and that the same witnesses of last-seen have not been believed qua the acquitted co-accused, therefore, they cannot be relied upon against the appellants.
11. The learned counsel for the complainant has opposed the appeal vehemently and argued that this is a case of circumstantial evidence and there is no enmity between the complainant party and the appellants to implicate them falsely. During the fateful night the appellants alongwith their acquitted co-accused were seen at odd hours chasing the deceased and the possibility cannot be ruled out that they had committed the murder of Muhammad Abbas, as they had also pointed out the place of occurrence, where the dead body was found. Recovery of the weapons of offence supports the case of the prosecution, which is also supported by medical evidence and there is only possibility that the murder was committed by the appellants. The motive is also proved and the prosecution has proved its case beyond reasonable doubt against the appellants. The learned counsel for the complainant also argued that the recovery of the identity card and the wrist watch of the deceased on pointing out of the appellants leads to the conclusion that they are involved in the commission of murder of Muhammad Abbas deceased and have been rightly convicted by the learned trial Court. The learned counsel for the complainant has placed reliance upon Zairullah v.
The State 1997 SCM R 396 and has prayed that appeal be dismissed and appeal against acquittal be accepted. Learned counsel appearing on behalf of the State claimed the judgment of the learned trial Court to be correct and opposed both the appeals.
12. We have considered the arguments of the learned counsel for the parties and have gone through the evidence and record of the case. Motive, set up by the prosecution, does not inspire confidence, inasmuch as, altercation having taken place two and a half months prior to the occurrence, had been patched up. No such incident had taken place immediate before the occurrence prompting the accused to cause the death of Muhammad Abbas (deceased), and if the complainant claims enmity, as is evident from the F.I.R. And his statement, the enmity cuts with both sides and being an unseen murder, it leans towards the appellants having been involved on account thereof. Story put forth by the complainant is without head and tail. The person, who had his turn of water before and after the complainant party, has not been produced. None of them asked or informed the complainant for their having not gone to take their turn. Deceased's having gone to his field has not been established on record. Recovery of 'Parna' one kilometer from the place of dead body is also not understandable, as to how it fell, if the deceased was being chased by the accused, he must have raised alarm attracting the neighbours, but there is nothing on record to this sort. This piece of evidence has been introduced just to show that the deceased was on his way to his fields. They did not report to the police about his missing and remained sitting in the house. It is also not clear, as to how Barkat a resident of other village, straightaway contacted the complainant, after having seen the dead body in his paddy field, without its identification and informing anybody/respectables of his own village.
13. The deceased is alleged to have been seen lastly by Muhammad Din and Noor Muhammad.
Noor Muhammad has been given up by the prosecution, which is reflective of the presumption that if produced would have not supported the case of prosecution. Muhammad Din appeared as P.W.5 in this context but could not satisfactorily establish his coming back from the fields, as he has admitted that he was not a tenant of Maqbool and Maqbool was not produced. He is otherwise not trustworthy, as he kept silent and did not inform the complainant or anybody else till the discovery of dead body. After having seen the deceased being chased by the accused persons, he was under obligatory duties to inform the complainant or other persons of the village. Further, he is relative of the complainant and his testimony should have been corroborated by some other unimpeachment source, which is lacking here.
14. Evidence of conspiracy is also not trustworthy and cannot be relied upon for sustaining conviction. P.W.11 deposed that he alongwith Noor Muhammad while going to his fields for watering saw the accused and heard them while hatching conspiracy for the murder of Abbas (deceased).
This witness remained silent for about three and a half months and did not disclose this fact to any one. He could not explain his absence for the said period. Other witness has been given up. Even otherwise it is not believable as to how the accused were hatching conspiracy in the Haveli of Master Wakil, when they had their own Havelies.
15. P.W.6 claims that after 10/12 days of the occurrence, the appellants came to his home and confessed their guilt jointly and asked him to get pardon from the complainant. Joint confession, under the law has no evidentiary value and cannot be believed for conviction. It was so held in Muhammad Akram and 3 others v. The State 1971 PCr.LJ 1299, Pahlwan and others v. The State PLJ 1971 Cr.C. (Kar.) 503 and Anwar Jamal Hussain and another v. The State PLJ 1992 Cr.C. (Lahore) 30.
Even otherwise, the witness is admittedly not a Lambardar or Councillor of the village, who could have used his good offices to get pardon for the appellants. His being a close relative of the complainant, not capturing the appellants and his silence for a long period renders his evidence unworthy of credence.
16. Recoveries alleged to have been effected on pointing out of the appellants, are not of incriminating nature. Same were neither produced before the Court, nor any empty was recovered for matching purpose. Moreover, the same stands negated by the medical evidence, as the doctor could not clarify as to whether the wounds were of bullets or pellets. Furthermore, provisions of section 103, Cr.P.C., have been violated in the process and most of the recovery witnesses have been given up by the prosecution. Type, mode and manner smacks the same to have been planted/fabricated.
17. F.I.R. Was lodged after unexplained delay on the basis of written complaint not at police station, but at bus-stop, which is indicative of the facts that same might have been recorded after due deliberations and consultations rather at the dictation of the police. Dead body was recovered from the fields of other Mauza, record is silent as to how the deceased went there instead of his own fields. Numbers and nature of injuries reveal that the same could have been inflicted under impulse of grave and sudden provocation when the deceased was strangulated by his own string whereas the motive as alleged is not so strong and there is no horror in it which prompted the accused to commit the offence. The time, place and name of actual assailant is shrouded in mystery and the appellants have been entangled on suspicions. The investigations in the case have been carried out dishonestly.
18. The prosecution evidence has been disbelieved by the learned trial I H Court qua the acquitted accused, as such, the same set of evidence cannot be believed qua the appellants, as when a witness is found to be telling a lie on an important point having material bearing on culpability of the accused, his evidence cannot be attached any credence.
19. The plea of learned counsel for the complainant that conviction can be made on the basis of circumstantial evidence is devoid of force, as necessary ingredients/essentials to establish an offence by circumstantial evidence are missing in the instant case. Those are:--
(i) The circumstances from which the conclusions are drawn should be fully established;
(ii) All the facts must be consistent with hypothesis;
(iii) The circumstances should .Be of a conclusive nature and tendency;
(iv) The circumstances should, to a moral certainty, actually exclude every hypothesis, but the one proposed to be proved.
20. The prosecution has failed to bring any cogent, reliable, convincing and unimpeachable evidence or any sort of circumstantial evidence to connect IJ the appellants with the commission of offence.
21. In a sequence to what has been discussed above, we find that the conviction recorded by the trial Court is not sustainable. Hence, the appeal is allowed, conviction and sentence is set aside and the appellants are acquitted of the charge by giving them the benefit of doubts. They shall be released from the Jail forthwith if not required to be detained in any other case.
22. The findings of the learned trial Court to the extent of acquitted accused are upheld and the appeal against their acquittal stands dismissed.
23. The murder reference is replied/answered in the negative.