' This order will dispose of Criminal Appeal No,24 of 1995 filed by the appellant, Criminal Revision No,438 of 1995 filed by the complainant against the acquittal of the acquitted co-accused of the appellant, then there is Criminal Revision No,26 of 1995 filed by the complainant for the enhancement of the sentence against the appellant, then a Criminal Revision No,278 of 1995 was also filed by the State against the appellant for the enhancement of sentence, directed against the judgment, dated 22-12-1994 passed by the learned Additional Sessions Judge, Okara, whereby he convicted Muhammad Ishaque, Muhammad Abbas and Muhammad Rafique appellants under section 302(b)/34, P.P.C. And sentenced them to undergo life imprisonment and all the remaining accused were acquitted giving them benefit of doubt.
2. Brief facts of the case as narrated in the F.I.R. Lodged by Sultan Ahmad complainant are that on 17-9-1993 at about 9-15 p.m. He and his son Riaz Ahmad deceased were present in their house, Riazabad Basti when Ijaz accused called out his son Riaz Ahmad deceased. When Riaz Ahmad deceased did not turn up, till 9/10 a.m. Next morning the complainant and his son Muhammad Nawaz started searching for him. During the course of search Syed Ghulam Mustafa Shah Gaddi Nasheen of Darbar Sakhi Shahbal Shah met him on the way and disclosed that the dead body of his son Riaz Ahmad deceased was lying in his land in Thatha Sayyadan. The complainant and his son Muhammad Nawaz reached the spot and found the dead body lying on the bank of a 'Watt' of the field. The matter was reported to police P.S. Gogera placing strong suspicion on the relatives of Ijaz Ahmad accused, who had taken the deceased along with them on last night.
3. The motive behind this occurrence allegedly stated was that the deceased had illicit relations with their girl Mst. Shehnaz.
4. Rai Zamir-ul-Haq (I.0.) after completing necessary formalities reached the spot prepared the injury statement and inquest report Exh.P.K and Exh.P.L respectively. He also prepared the site plan of place of dead Brady Exh.P.M. He after receipt of postmortem report, took into possession the last worn clothes vide memo. Exh.PJ. He arrested Ishaque, Abbas and Rafique accused. Muhammad Ishaque got recovered wristwatch P.1 and a cloth P.4. Similarly Muhammad Abbas also got recovered ring P.2 and Muhammad Rafique accuse got Softy Chappal P.3/1-2.
4-A. Prosecution in order to prove its case produced 13 witnesses in all. Thereafter statements of the accused/appellants were recorded under section 342, Cr.P.C. In which they pleaded not guilty and claimed false implication.
5. Learned counsel for the appellants after having gone through the evidence recorded by the learned trial Court submits that it was a case of no evidence, that the recovery of articles which were allegedly effected on the potation of the appellants were not mentioned in the F.I.R., that Sultan Ahmad P.W.4 who was father of the deceased namely Riaz Ahmad Patwari, had admitted that in his presence Ijaz Ahmad acquitted co-accused did not take the deceased from his house.
Learned counsel further submits that the two witnesses of extra-judicial confession, Pir Murad Shah P.W.11 and Syed Ghulam Mustafa Shah P.W.12 are not confidence inspiring. Had Muhammad Ishaque accused confessed his guilt before P.W.12, his duty was to have informed the police or to call the police at the place where Muhammad Ishaque had made extra-judicial confession. After leaving the place where Muhammad Ishaque appellant had made the extra-judicial confession, P.W.12 went to police station. Learned counsel for the appellants submits that the recoveries of cloth (Safa), wristwatch, golden ring etc. Have been planted on the appellants. He submits that on such a weak type of evidence no conviction on a capital charge can be maintained or awarded.
He adds that no blood-stained earth was also taken into possession from where the dead body was found.
6. On the other hand learned counsel for the State assisted by the learned counsel for the complainant supported the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the trial Court. In the instant case there was no eye-witness and it was an un- witnessed occurrence. Sultan Ahmad P.W.4 who is complainant and father of Riaz Ahmad Patwari had admitted in his cross-examination that Ijaz Ahmad acquitted co-accused was a student of sixth class at the time of occurrence who had come to his house to fetch Riaz Ahmad deceased but at that time he (P.W.4) was not present. For whole of the night Riaz Ahmad Patwari, deceased did not return to his house but his father never informed the police even in the morning he did not inform the police. He only informed the police when Syed Ghulam Mustafa Shah told him that dead body of his son was lying in his field. As far as statement of Muhammad Sadiq P.W.3 is concerned, he is cousin of the deceased, his evidence has no weight because he had only seen all the accused/appellants together. As far as statement of P.W.7 Muhammad Iqbal is concerned, his statement is most unnatural because according to him he had heard Muhammad Ishaque appellant asking the co-accused Abbas and Muhammad Rafique to join him in order to kill the deceased as he was having illicit relations with his sister. This witness never informed either to Riaz Ahmad deceased or to his father Sultan Ahmad in this regard so no reliance can be placed on his statement. Then there is statement of Ghulam Muhammad P.W.8. He stated in his statement that he saw Bakhsha acquitted co-accused with Ishaque, Abbas and Rafique accused with an unknown person, so his evidence does not advance the case of the prosecution. Now comes the statement, of Faiz Muhammad P.W.9, he has stated in his statement that he saw Ishaque, Abbas and Rafique accused sitting together. It is of no use to the prosecution. Abbas Rafique and Ishaque were arrested by Rai Zameer-ul-Haq P.W.13 on 11-10-1993 but according to Imam Ali P.W.2 that Ishaque accused was produced before the Police by. Ghulam Mustafa Shah P.W. On the day on which he had made an extra-judicial confession before P.W.11 and. P.W.12. These two facts are irreconcilable. Then there are statements of Pir Murad Shah and Syed Ghulam Mustafa Shah P.Ws.
Who were witnesses of extrajudicial confession allegedly made by Ishaque appellant. Their conduct is most unnatural i,e, why they did not take him to the police or why they did not get him arrested when he had made extra-judicial confession. They even did not ask any person to inform the police in this regard. It is strange enough that why Ishaque appellant would make extrajudicial confession before them when they were neither influential persons nor they were related to the deceased and even they were not in a position to get pardon for Ishaque. Their conduct is most unnatural and unconvincing and no reliance can be placed on their testimonies. It is a settled law that in circumstantial evidence every link should be interlinked with each other. When the links are found to be missing then case of the prosecution becomes doubtful. In my considered opinion, prosecution has failed to prove its case. It seems that all the recoveries were planted on the appellants because there was no mention of these articles in the F.I.R. Which have been shown to be got recovered from the appellants. Sultan Ahmad complainant had also admitted that first, police in fact had shown him these recovery articles and then he mentioned that these articles belong to deceased. No value can be attached to his statement.
' The upshot of the above discussion is that the prosecution has miserably failed to prove its case.
This appeal is accepted and the judgment of the learned trial Court is set aside. Appellants are on bail, they are discharged from their bail bonds.