This judgment will dispose of Criminal Appeal No,91/J of 1999 filed by Lal Din, appellant and Criminal Appeal No,92/J of 1999 filed by Muhammad Ashiq, appellant through jail, who were convicted and sentenced by learned Additional Sessions Judge, Lahore vide his judgment, dated 31-3-1999 for the murder of Liaqat Ali to undergo life imprisonment under section 364/302, P.P.C. And also to pay a fine of Rs,10,000 each and in default six months' R.I. Under section 364, P.P.C. Sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
'Occurrence in the instant case had taken place at 9 p.m. On 27-4-1998 in Sharifpura within the territorial jurisdiction of Police Station Manawan, District Lahore at a distance of 7 miles away from police station while the matter was reported by Mubarik Ali (P.W.1) to the police at 6-00 p.m. On 5- 5-1998 through complaint Exh.P.A. And the formal F.I.R. Exh.P.A./1 was recorded by Muhammad Haroon, S.-I. (P.W.8) on the same day .At 6-30 p.m.
3. Briefly stated facts of the case were that at about 9 p.m. On 27-4-1998, Muhammad Younas, maternal-uncle and one Siraj Din were present in the house of complainant Mubarik Ali (P.W.1) when Muhammad Ashiq and Lal Din, appellants, came to Liaqat Ali who had a tractor-trolly bearing registration No,SGA/5997 to earn his livelihood. Both Ashiq and Lal Din wanted to engage the services of said Liaqat Ali to bring some goods from Faislabad on his tractor-trolly for which it was settled that besides diesel to be provided by the appellants, a sum of. Rs,1,000 would also be paid. Upon this,- Liaqat, deceased, left with the two appellants on tractor-trolly in their presence but after passing of many days when Liaqat 'did not return back, complainant felt suspicion and went in search of Liaqat Ali and contacted both the appellants at their houses. It was revealed that they had returned from Faisalabad, but Liaqat Ali brother of the complainant had not come back.
The complainant was, therefore, of the view that both the appellants in furtherance of their common intention had abducted Liaqat Ali with tractor-trolly to murder him.
4. After registration of the formal F.I.R., Muhammad Hand, A.S.-I. (P.W.14) proceeded to the place from where the deceased alongwith trolly-tractor was reported to have been abducted by the appellants, prepared the rough site plan Exh.P.G.; also recorded statements of Younas and Siraj; thereafter proceeded to Faisalabad; took into possession tractor-trolly P.3 and P.4 bearing registration No,SGA/5997 vide memo. Exh.P.E. And thereafter, got the dead body recovered out of the canal; prepared the injury statement Exh.P.J. And inquest report Exh.P.K. On 14-5-1998 Muhammad Hanif, A.S.-I. Met an accident and the investigation was taken over by Tahir Hussain, A.S.-I. (P.W.15). He arrested both the appellants on 26-5-1998 and while in police custody on 30-5- 1998 both the appellants led to the recovery of iron Phatti P.1 which was taken into possession vide memo. Exh.P.B./1. After completion of the investigation, both the appellants were challaned to face the trial.
5. Prosecution in order to prove its case produced 15 witnesses in all out of whom Mubarik Ali (P.W.1)
Muhammad Younas (P.W.2) were the eye-witnesses while the doctor who conducted post-mortem examination on the dead body of the deceased was examined as P.W.7. Report of the Chemical Examiner is Exh.P.R. Thereafter, statements of the appellants were recorded under section 342., Cr.P.C. They also produced 3 D.Ws. In their defence and both the appellants also made statements under section 340(2), Cr.P.C. Both the appellants after conclusion of the trial were convicted and sentenced as stated above.
6. Learned counsel for the appellants has read before me the prosecution evidence, statements of the appellants under sections 342 and 340(2), Cr.P.C. And submits that there is delay of 8 days in lodging the F.I.R.; tractor-trolly was never recovered on the pointation of the appellants; story of extra-judicial confession is incorrect for the reason that it was joint one which is not admissible in evidence; iron rod P.1 was recovered on the joint pointation of the appellants- as stated by Tahir Hussain, A.S.-I. (P.W.15); all the public witnesses are close relations of the deceased and that there is no eye-witness of the actual murder. Further submits that no case whatsoever is made against the appellants.
7. On the other hand, learned counsel for the State submits that in the presence of P.Ws., the deceased Liaqat Ali was' taken by the appellants from his house alongwith tractor-trolly on rent with a promise to pay Rs,1,000 besides the diesel which was to be used in the tractor. He supports the judgment of trial Court.
8. I have heard learned counsel for parties and have gone through the prosecution evidence. In the instant case, according to the complainant Mubarik Ali who is real brother of the deceased Liaqat Ali both the appellants took away Liaqat Ali with them on the pretext that they had to take some material on the tractor and also promised to pay to the deceased Rs,1,00G besides the diesel and Liaqat Ali did not return for 1 or 2 days, but no report was lodged by the complainant with the police and the same was lodged on 5-5-1998 when the dead body was recovered. This inordinate delay in lodging the F.I.R. Casts doubt on the prosecution story and it seems that the F.I.R. Was lodged after due deliberation and consultation. The witnesses of last seen evidence are Mubarik Ali, Muhammad Younas and Siraj. Siraj was not produced while Mubarik Ali and Muhammad Younas are brother and maternal-uncle of the deceased respectively. No independent witness of last seen evidence had been produced. As far as extra-judicial confession is concerned, it had been furnished by Muhammad Younas and Muhammad Ashraf, P.W.2 and P.W.S. After going through their statement, it is proved on record that evidence of extra-judicial confession is joint one which is not admissible in evidence. Muhammad Younas as mentioned above is maternal-uncle of the deceased while Muhammad Ashraf who is a Havaldar in police is real brother of the deceased. No independent person has been produced by the prosecution. Moreover, the story set up by the witnesses of extra judicial confession is not plausible. How the appellants would go to near relatives of the deceased in order to admit their guilt. The witnesses of iron Phatti P,1 are Safdar Hussain and Muhammad Azam P. Ws. Muhammad Azam is resident of Munawan. Iron Phatti was recovered from the revenue jurisdiction of district Sheikhupura, so there is violation of section 103, Cr.P.C. Moreover, according to the statement of Tahir Hussain (P.W.15) who partly investigated the case, iron Phatti was recovered on the joint pointation of the appellants which is not admissible in evidence. Dr. Azhar Masood Bhatti, (P.W.7) who conducted post-mortem examination on the dead body of Liaqat Ali, deceased, on 7-5-1998 opined that face of the deceased was not recognizable; testicles and penis part of the deceased was not available and the dead body was in the moderate stage of putrefaction. It was very difficult to identify the dead body of the deceased and to say with certainty that it was the dead body of Liaqat Ali although his brothers had identified him. There is no evidence on record that the appellants led to the recovery of the dead body rather police on its own recovered the dead body. This piece of evidence cannot be used against the appellants.
Tractor-trolly allegedly belonging to the deceased was never recovered on the pointation of the appellants. This is a case of circumstantial evidence. In such-like cases, Court has to see that the links of circumstantial evidence are linked in such a manner that it should lead the accused to the gallows, which are not available in the present case. Although theie is no previous background of enmity but the Court has also to see whether the prosecution has been able to prove its case beyond any shadow of doubt against the appellants-accused. Answer, in the instant case, is in the negative.
Upshot of the above discussion is that prosecution has failed to prove its case against the appellants beyond any reasonable doubt, the benefit of which is to go to the appellants, so by allowing both the appeals, conviction and sentence recorded against the appellants by the trial Court is set aside and both shall be released forthwith from jail, if not required to be detained in any other case.