' M. NAEEMULLAH KHAN SHERWANI, J.---Abdul Rehman and Khyzer Hayat were tried by a learned Additional Sessions Judge at Khushab for the mactation of one Muhammad Suleman. By virtue of his judgment dated 30-10-1999, the learned trial Judge found and adjudged them guilty of the said charge, convicted them under sections 302(b)134, P.P.C. And punished Abdul Rehman accused with death and Khyzer Hayat with imprisonment for life. They were also directed to pay a fine of Rs,1,00,000 each or in default thereof to undergo rigorous imprisonment for two years each. Half of the amount of fine, if realized, was ordered to be paid to the legal heirs of the deceased.
2. Murder Reference No,456 of 1999 seeks confirmation of the said sentence of death, whereas the convicts have preferred Criminal Appeal No,1109 of 1999 before this Court to call in question conviction and sentence passed against them. Said Khan complainant has filed Criminal Revision No,627 of 1999, seeking enhancement of sentence of Khyzer Hayat to the maximum provided under the law as well as suitable compensation. All the three matters are being disposed of together through this single judgment.
3. The alleged incident had taken place in the night between 4/5-11-1998 in the revenue estate of Punjab, situated at a distance of five kilometres from Police Station Mitha Tiwana, District Khushab.
The occurrence was reported by Said Khan (P.W.7) to Ghulam Hussain, S.-I./S.H.O. (P.W.12) at the police station, who upon dictation of the complainant drew up F.I.R. (Exh.PE) at 3-30 p.m. On 5-11- 1998.
4. The complainant puts the matter succinctly by stating that he is running a Commission Agent Shop at Adda Punjab. His nephew Muhammad Suleman also works there. On 4-11-1998 at about 10- 30 p.m. He left for his house and the complainant slept inside the shop. On the next morning, when Muhammad Suleman did not reach the shop till 9-00 a.m., the complainant inquired about him from his house. He was informed by the inmates of the house that Muhammad Suleman did not come home last night. The complainant got worried and made a thorough search for him alongwith his brother Atta Muhammad and Allah Bakhsh (P.W.8), but of no avail. One Qazi Zain-ul- Abidin informed the complainant at about Peshiwela that a dead body was lying in his fields, whereupon, he alongwith Atta Muhammad and Allah Bakhsh rushed towards that place and identified dead body of Muhammad Suleman, his nephew. They found fire shot injuries on his head, both eyes and nose. Footprints of two other persons besides the deceased were found at the spot.
' According to the complainant, his nephew, Muhammad Suleman was on visiting terms with Abdul Rehman and Khyzer Hayat appellants. Abdul Rehman suspected illicit liaison of Muhammad Suleman with his sister, namely, Mst. Zubaida. The complainant raised suspicion that Abdul Rehman and Khyzer Hayat had committed murder of Muhammad Suleman due to said grudge. He leaving behind Atta Muhammad and Allah Bakhsh to guard against the dead body of Muhammad Suleman went --to- the police station and lodged the abovesaid F.I.R.
5. After registration of the case, Ghulam Hussain, S.-I./S.H.O. (P.W.14) paid a visit to the spot immediately and recorded statements of Atta Muhammad and Allah Bakhsh (P.W.8). He then inspected the place of occurrence and prepared a rough site plan (Exh.PO). He took into possession bloodstained soil from the place of occurrence through memo. Exh.P.F. He observed footprints of three persons going towards the place of occurrence and those of two persons returning therefrom. He deputed Aziz, Constable, to guard against the footprints around the place of occurrence. He inspected the dead body of Muhammad Suleman deceased and prepared his injuries statement (Exh.PP) and inquest report (Exh.PQ). Dead body of Muhammad Suleman was despatched to the mortuary for post-mortem examination through Sohbatullah, Constable (P.W.3).
Naseer Ahmad Alvi, D.S.P./.S.D.P.O. Also inspected the spot and observed the footprints as aforementioned. As per direction of the Investigation Officer and on the pointation of witnesses, Mansab Khan, Patwari (P.W.1) prepared site plans in duplicate (Exhs.PA and PA/1).
' On 6-11-1998, Sohbatullah, Constable (P.W.3) handed over to the Investigating Officer last-worn clothes of the deceased, i.e, Shalwar (P.1), shirt (P.2), Buniyan (P.3) and a sealed phial (P.4), which were taken into possession by him through memo. Exh.P.B. On 6-11-1998, Sher Ali and Gul Sher, trackers, were called upon by the Investigating Officer to inspect footprints of the persons, who had gone back from the place of occurrence. They accordingly did so, which led to the place near the house of the appellants. The Investigating Officer directed many persons to walk alongwith the appellant in absence of the trackers. Then Sher Ali and Gul Sher trackers were asked to compare the footprints available at the place of occurrence as well as to that of the other persons, who were called upon to walk with the appellants. The trackers identified and found the footprints of the appellants tallied with those, which were found near about the place of occurrence. As per direction of the Investigating Officer, the trackers prepared moulds, six in number (P.8/1-6), i.e, three of each accused. These were taken into possession by the Investigating Officer through memo.
Exh.P.H, attested by Gul Sher (not produced) and Sher Ali (P.W.9).. He recorded statements of the witnesses under section 161, Cr.P.C. On 19-11-1998, Khyzer Hayat appellant produced before him a ring (P.5) belonging to the deceased, which was taken into possession vide memo. Exh.PC.
' Thereafter, as per direction of Superintendent of Police, Khushab, investigation of the case in hand was entrusted to Ghulam Hussain, Inspector, C.I.A. (P.W.12). Upon taking charge of the investigation, he with a view to satisfy himself, once again summoned the above-mentioned trackers alongwith another, namely, Ghulam Mani. He also did the same job as was done by the earlier investigator. All the three trackers gave the same opinion about the footprints of the appellants. They prepared four moulds of the footprints (P.9/1-4), two of the each appellant, which were taken into possession by the investigating officer through memo. Exh.P.J, duly attested by the same set of witnesses. On 1- 12-1998, the complainant produced before him four locks (P.11/1-4), which he took into possession through memo. Exh.P.N, duly attested by the complainant and Atta Muhammad P.W. This witness arrested both the appellants on 2-12-1998 and took their physical remand. Abdul Rehman appellant while in custody let to the recovery of carbine (P.7), the weapon of offence, from within the weeds in front of his house, which was made into a sealed parcel and taken into possession vide memo. Exh.P.G, duly attested by the witnesses. He also got recovered a stone (P.10), through which he had destroyed ring, and wrist-watch of the deceased. It was taken into possession by the investigator vide memo. Exh.P.L. A burnt diary (P.6) was also recovered at the instance of Abdul Rehman appellant and was taken into possession through memo. Exh.P.K. These seizure memos.
Were attested by Abdul Rehman P.W. (not produced) and Muhammad Amin (P.W.10). Khyzer Hayat appellant while in police custody made a disclosure that he could lead to the place of occurrence and that specific place where Abdul Rehman appellant had thrown diary, carbine, wrist-watch and ring of the deceased, after committing his murder. Then he pointed out both places to the investigator Farad Nishan Dahi (Exh.PM) was prepared in this regard, which was attested by Tassawar Raza (P.W.1) and Abdul Rehman P.W. (not produced). He recorded statements of the relevant witnesses under section 161. Cr.P.C. After completion of investigation, the Investigating Agency prepared challan and submitted the same to the Court for trial of the accused in accordance with law.
6. The trial Court after completing all the formalities proceeded to frame charge against the appellants, which was explained and read over to them. They pleaded not guilty to the same and claimed to be tried. It was in these circumstances, that the prosecution was called upon to adduce evidence to prove charges against the appellants. The prosecution ventured to produce as many as 14 witnesses in all to substantiate accusations brought against the appellants.
' Mansab Khan, Patwari, (P.W.1), Muhammad Nasrullah (P.W.2), Constable, Suhbatullah, Constable (P. W.3), Azhar Hussain, Constable (P.W.5), Rehmat Ali (P.W.6) and Tasawar Raza, Constable (P.W.11) are formal witnesses, therefore, there is no need to make a reference to their statements.
' P.W.4 Dr. Masood Alam Raja, M.0, performed autopsy upon dead dody of Muhammad Suleman, aged 32 years, and observed following injuries on his person:--
(1) A fire-arm entrance wound 8 c.m. x 4 c.m. Bone absent on left temporal region 3 c.m. From left ear, and 11 c.m. From left eye. Brain has taken out.
(2) Fire-arm exit wound 4 c.m. x 3 c.m. On apex of nose in-between two eyes and left eye was destroyed.
(3) Fire-arm exit wound 2 c.m. x 1 c.m. On right eyebrow. Right eye was also destroyed.
' Skull bone was fractured at left temporal region and right orbital bone and left orbital bone was also fractured. 113rd brain was not present. Two pieces of pellets were taken out.
' All organs of thorax were intact. Stomach was empty. Bladder was also empty. All other organs of abdomen were intact.
' According to opinion of the doctor, death occurred due to injury No,1 to brain, which was declared sufficient to cause death in the ordinary course of nature. Injuries Nos.2 and 3 were the exit wounds of injury No,1 . Time, which elapsed between injuries and death, was sudden, and that between death and post-mortem examination was 28 to 34 hours. After post-mortem examination, the doctor handed over police papers, last-worn clothes of the deceased and a sealed phial containing pellets to Suhbatullah Constable. Exh.PD is the correct copy of the postmortem examination report and Exhs.PD/1 and PD/2 are the pictorial diagrams showing the locale of injuries on person of the deceased. These documents bear signature of the doctor.
' P.W.7 Said Khan complainant and P.W.8 Allah Bakhsh furnished an account of facts within their knowledge and also stated about recoveries effected in their presence. Said Khan complainant narrated the story contained in the F.I.R. And almost similar statement about the material facts was made by Allah Bakhsh (P.W.8). In addition to this, Allah Bakhsh deposed that on the third da) of occurrence, the appellants came to his house and confessed that they had committed murder of Muhammad Suleman by discharge of a fire with a carbine and that they should be got pardoned for this act from Said Khan complainant and they were ready to pay Diyat or the fine.
' Evidence of Sher Ali (P.W.9), Muhammad Amin (P.W.10), Ghularn Hussain, Inspector, C.I.A. (P.W.12), and Ghulam Hussain, 5.-I. (P.W.14) has already been discussed in the earlier paragraphs, therefore, there is no need to reproduce the same.
' Ghulam Hussain son of Alam Khan appeared as P.W.13 to depose that about 11 months before at 11-30 p.m., he was going towards his house in village Punja from his Dera. When he reached outside the Abadi of village Punja, he saw Muhammad Suleman deceased in company of the appellants.
According to him, he exchanged greetings with all of them. He heard about murder of Muhammad Suleman on the next day. He stated that he appeared about the local police and the C.I.A. Staff, but his statement was not recorded. Later on, his statement was recorded by Inspector Range Crime, Sargodha.
7. Learned Prosecutor after giving up Gulsher, Ghulam Jillani, Atta son of Wali Muhammad, Ghulam Habib, Abdul Rehman, being won over and Atta Muhammad, Muhammad lqbal, A.S.-I. And Allah Wasaya P.Ws., being unnecessary, tendered in evidence reports of the Chemical Examiner, Serologist and Forensic Laboratory (Exhs.P.R, P.S and P.T) and declared the prosecution case closed.
8. After the prosecution had availed of opportunity to produce its evidence, the appellants were examined under section 342, Cr.P.C. In order to afford them an opportunity to explain the incriminating circumstances appearing against them. Not only the appellants denied correctness of allegations levelled against them, but also proclaimed their absolute innocence in the matter.
Their consistent stand was that they had been roped in this case, falsely, maliciously and due to enmity. They, however, declined to appear as witnesses in their own defence as envisaged by the relevant provisions of section 340(2), Cr.P.C. Khyzer Hayat appellant opted not to produce the defence evidence. Abdul Rehman appellant opted to do so, and after producing copy of order, dated 8-124990 (Exh. DD), report under section 173, Cr.P.C. Containing schedule of witnesses (Exh.
DE), closed his defence.
9. The learned trial Judge after examination of all facts and circumstances of the case found the appellants guilty and pronounced his verdict in the manner aforementioned.
10. The way, in which learned counsel for the appellants, in his attractive arguments to this Court, has highlighted the matter is as follows:--- That extra-judicial confession is very weak type of evidence and evidence of P.W.8 Allah Bakhsh runs counter to the natural probabilities. It has no evidentiary value in the peculiar circumstances of the case and in the same way evidence of P.W.13 Ghulam Hussain regarding last seen inspires no confidence at all. P.W.13 has furnished a cock and bull story to strengthen the prosecution case.
(ii) That motive part of the occurrence is not only doubtful but also not proved satisfactorily.
Recovery of a carbine, rings, moulds, stone and burnt diary is also fabricated one.
(iii) That evidence of P.W.9 Sher Ali tracker is not backed by sound reasons. Furthermore, he cannot be considered as an expert witness. It was an unseen occurrence and with the help of relations and friends the story had been built up in the present form just to involve the accused.
11. Learned counsel for the complainant and learned State Counsel in their own humble way argued that the prosecution was successful in proving its case to the hilt against the appellants by the production of sufficient evidence, falling under different categories, like, extra-judicial confession last seen, recoveries, tracker, and motive. It was next argued that the appellants stood rightly convicted for the commission of this offence.
12. We have consciously heard respective arguments of both the sides and perused the record.
They have also taken us through the relevant record regarding their arguments.
13. First of .All, we would like to comment upon first information report. A bare perusal thereof reveals that the case is concocted one and the story built up on the basis of guess, gossips, rumours and imagination. The deceased happens to be real nephew of Said Khan complainant (P.W.7). Commission Agent Shop of the complainant is located at Adda Panja. Muhammad Suleman deceased used to work at his shop. He left his shop at 10-30 p.m. On 4-11-1998, whereas the complainant stayed back at the shop and spent whole night there. The complainant is a married person. He has his house and family in village Panja. He was not expected to sleep at the shop. The family of the deceased and family of the complainant should have visited the shop during the night to know about Suleman deceased because he had not reached home. The complainant got inquired from house of the deceased as to why he had failed to reach at the shop. The complainant had waited up to 9-00 a.m. On coming to know that Suleman deceased was missing and had not reached home during the night or even in the morning, the complainant got worried. He set out in his search in the company of his brother Atta Muhammad P.W. (not produced) and Allah Bakhsh (P.W.8). They continued searching Suleman deceased. It was at noon time when one Qazi Zain-ul-Abidin told him that a dead body was lying in his fields. The complainant and others rushed towards that direction. On reaching there, they found and identified dead body of Muhammad Suleman lying in the fields. There was a fire-arm injury on left side of his skull, which had effected other parts of his facial region. Foot-prints of two persons were available. According to the complainant, the deceased had friendly relations with the appellants.
They were also on visiting terms with each other. Abdul Rehman appellant entertained a suspicion that the deceased had developed illicit liaison with his sister Mst. Zubaida. He suspected that the appellants had committed his murder.
14. There are few preliminary objections with regard to the story put forth by the complainant.
Throughout investigation, no endeavour was ever made by the police to establish contact with Mst.
Zubaida, sister of Abdul Rehman appellant to verify the factum of illicit sex connections between the two. Her age, her marital status, if any, and her availability in village Panja could very easily be verified. Love affairs can never be concealed. The Investigating Office should have visited the area by himself, made inquiries from the people around to know reputation of Mst. Zubaida Bibi and also to ascertain this fact, whether there was any Mst: Zubaida Bibi or not in existence. Likewise reputation of Suleman deceased qua this matter could be ascertained by the Investigating Officer.
No evidence whatsoever of any kind could be collected to prove this piece of evidence. It seems that this has been set up just by the way and nothing beyond that.
15. In this case, ideally specific motive was set up by the complainant in the first information report and it was his bounden duty to have adduced evidence to prove the same. We have no hesitation in saying that not only the complainant side but also the investigating agency hopelessly failed to collect cogent evidence with regard to motive part of the occurrence. Motive has not been proved and the prosecution must suffer for that.
16. Throughout night, nobody came to the shop of the complainant to know about Suleman deceased and even in the morning nobody visited the shop to acquire information about him. How the complainant came to know in the morning that the deceased was not available at his residence, is also not known. The fact remains that he by himself slept at the shop during the night hours keeping himself away from his wife and children. All these circumstances make the very conduct of the complainant extremely doubtful.
17. Qazi Zain-ul-Abidin was neither examined by the police nor produced as a witness before the Court to state as to at what time and under what circumstances he discovered dead body of Suleman lying in his fields. The natural presumption would be that too many persons of the area would have gone near the dead body finding it lying unattended, thus, causing damage to the footprints, if any, their size, their shape and directions. There is nothing to show that the scene was ever guarded by responsible persons of the area or by the police in a befitting manner.
Circumstances revolving around story of crime report tend to paint the complainant as a person of dubious character.
18. P.W.7 Said Khan complainant, is an illiterate person and accounts of the Commission Shop were being maintained by the deceased. Suggestions were put to this witness that his wife had expressed her eager desire to sever business relations with the deceased and that Abdul Rehman P.W. And wife of the complainant were responsible for the murder of the deceased. We also come to know through his cross-examination that the police had arrived at the spot at about 4/4-30 p.m.
And 20/25 persons were available by the side of the deceased and after completion of necessary formalities, the dead body was despatched to the mortuary for post-mortem 'examination. P.W.8 Allah Bakhsh was produced to prove extra-judicial confession of the appellants alongwith recovery of carbine (P.7). According to his statement, both the appellants had approached him at his house on third day of the occurrence and made extra-judicial confession before him. The fact remains that he is not an important figure of the area. He could render no help to the appellants. They had no relations with him, so there was no earthly reason with them to have contacted him for this very purpose. Alleged extra-judicial confession is wholly incomplete. It does not disclose date, time, and place of occurrence. Reason for committing murder is also not furnished. Other details of incident have also not been given by this witness. He had all the sympathies with the complainant side. He did not capture them. He did not ask them to appear before a Magistrate to make their statements.
This piece of evidence deserves no credence at all and the same is brushed aside.
19. Occurrence of the alleged incident took place on 4/5-11-1998. Date of recovery of carbine (P.7) mentioned on the recovery memo. Is 9-12-1998, which means that recovery was effected after 34/35 days of the occurrence. According to his statement, the recovery of carbine was effected from an open accessible place after about 20/25 days of the occurrence, so there is a difference of about ten days, which cannot be reconciled by any stretch of imagination. Furthermore, no empty could be recovered from the spot and this carbine cannot be wedded with the crime in question.
This recovery is redundant in I nature.
20. According to statement of Ghulam Hussain, Inspector CIA (P.W. 12), only ashes of the burnt diary and a stone was recovered. This piece of evidence has no nexus with the matter in issue. Entire recoveries have been fabricated by the police to strengthen case for the prosecution. No explicit, reliance can be placed upon such useless recoveries. As such, recoveries evidence is also brushed aside.
21. No blood could be collected from the alleged place of occurrence. If the Investigating Officer had come to know of the place of occurrence, then trail of blood should have been observed by him as profuse bleeding from wound was a must. Non-availability of blood at the alleged spot, or trail of blood between place of occurrence and place where dead body was found also makes the prosecution story extremely doubtful. How the deceased was shifted from the said place to the fields could not be known throughout and as such remained a mystery. Recovery of ring is of no avail to the prosecution, as Ashiq goldsmith, who had made ring courageously, denied before the Investigating Officer having made the ring.
22. Ghulam Hussain (P.W.13) deposed about last-seen evidence. He had seen the deceased in the company of the appellants at about 11/11-30 p m. Outside the village population, when he was on his way to his house from his Dera. He also appears to be a made-up witness. He did not appear before the police in village Panja. Even the complainant did not bother to produce him before the police, although he acquired knowledge of this fact through this witness. He did not make a mention of having seen the deceased in the company of the appellants before a Lambardar or any other notable of the village. He also could not point out the place, where he had seen the deceased in the company of the appellants and at a belated stage was produced before the police by the complainant. If he had the chance to meet the deceased and the appellants at odd hours of the night, then he must have inquired from theni as to why they were there and where they were going. He is not a reliable witness and we have no alternative but to discard his testimony.
23. Sher Ali (P.W.9) is a tracker by profession. On asking of the police, he prepared moulds of the footprints and tried to demonstrate that footprints were that of the appellants. We would like to dilate upon the testimony of such a witness, who happens to be an illiterate person and had not learnt the art of observing, preserving and using the impressions in order to get the desired result out of them. The science of footprints is not exact. The science of identification of footprints is no doubt a rudimentary science and much reliance cannot be placed on the result of such identification. Whether a particular tracker is or is not an expert in this art or science is a matter, to be decided by the Court before reliance can be placed upon his evidence. The expert produced to establish identity of the footprints must furnish data and reasons for giving his opinion as expert.
Any opinion, which is not, backed by sound reasons is to be thrown out of consideration.
' The term "footprints" is basically meant to convey any type of impression that is made through the medium of the foot and includes prints produced by shoes, boots, slippers, and other types of wearing apparel. Only seldom foot prints are found where they are wanted. Sometimes they exist and are hardly entire and complete. It is for this reason, that they are not considered of any legal value. There is no evidence available on the file of this case, which may show that the footprints were ever preserved so as to remain in tact or to inspire certainty that they have some nexus with the case in hand. All those people, who were attracted to the spot after the occurrence had taken place, must have left behind traces of their feet, fouling the important prints, so that, one can no longer tell which is the significant footprint and while the useless one. This witness had not done measurement of the prints. He did not build up the walking image, the line of direction, the line of march, the line of the foot and the length of the step. There is no reproduction of the footprints in this case. This profession lot of education and practical training at the hands of experts. This witness is not an employee of the Police Department. As his services are hired by the people, he would be ready to give evidence of the choice of his clients. Even the Investigating Officer did not know the art of easing. This witness is wholly unreliable. It would be highly dangerous to H place explicit reliance testimony. His voucher is turned down.
24. It is a case in which there was no eye-witness of the occurrence to achieve success in the matter. The complainant and the police collaborated With each other to fabricate different pieces of evidence to link the accused with the commission of crime in question. Investigation smacks of padding and necessary links in the chain of evidence are missing.' Evidence on behalf of the prosecution is wholly unreliable. The prosecution version is pregnant with innumerable infirmities.
Real doubts have cropped up in this case, benefit of which is necessarily to be extended to the accused.
25. By accepting this appeal, we quash conviction and sentence of the appellants and acquit them of the charge. They be set at liberty forthwith, if not required to be detained in any other case.
Death sentence is not confirmed and Murder Reference is answered in the negative.
26. In view of above observations, Criminal Revision No,627 of 1999 is dismissed.