' Appellants Muhammad Amjad son of Muhammad Hanif, Muhammad Boota and Muhammad Amjad son of Ghulam Mustafa were tried for the murder of Muhammad Ameen in case F.I.R. No.332 of 1994, dated 3-10-1994 registered under section 302/34, P.P.C. At Police Station Saddar, Gojra, by the learned Additional Sessions Judge, Gojra, who vide judgment, dated 20-1-1998 convicted Muhammad Amjad son of Muhammad Hanif appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life and to pay Rs.25,000 as compensation under section 544-A, Cr.P.C.
The trial Court also convicted Muhammad Boota and Muhammad Amjad son of Ghulam Mustafa appellants under section 302(c), P.P.C. And sentenced them to ten years' R.I. Each and to pay Rs.25,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. All the three appellants were also given the benefit of section 382-B, Cr.P.C.
2. Challenging their conviction and sentence the appellants filed Criminal Appeal No.260 of 1998 while Muhammad Iqbal complainant filed Criminal Revision No.80 of 1998 seeking enhancement of sentence of the appellants. Both these matters are being disposed of together by this judgment.
3. Succinctly the prosecution case as narrated in the F.I.R. Was that Muhammad Iqbal complainant was a teacher. His father Muhammad Amin deceased was running a shop at Muridwala. He used to go to the shop daily and come back in the evening. On 1-10-1994 he went to the shop on bicycle in routine and did not return till evening. Complainant did not care for this because Muhammad Amin off and on used to sleep in the shop. Next day the complainant waited till 11-00 p.m. But when Muhammad Amin did not return home, complainant alongwith Dildar Ahmad son of Abdul Ghafoor, Muhammad Shafi son of Ilam Din Caste Arain, residents of the village went in search of Muhammad Amin. When they reached near Square No.52 Killa No.10 owned by Muhammad Shafi of Village No.181/GB they saw the bicycle of Muhammad Amin in maize crop. They stepped forward and saw in the torch light the dead body of Muhammad Amin lying there in pool of blood. Statedly deceased had sharp-edged weapon injuries on his abdomen and right arm, the right eye ball of the dead body was also missing. Complainant rushed to the police station leaving Muhammad Shafi and Dildar to guard the dead body and reported the matter to the police. On the complaint Exh.P.C./1 made by Muhammad Iqbal complainant formal F.I.R. Exh.P.C. Was registered at the Police Station Saddar, Gojra, District Toba Tek Singh.
4. Upon receiving the information about the murder, Zahid Abbas Shah, Inspector P.W.14 went to the spot and after inspecting the dead 'body prepared injury statement Exh.P.A./3, inquest report Exh.P.A./4 and sent the dead body to the mortuary for the purpose of post-mortem examination. He also inspected the spot and secured blood-stained earth vide memo. Exh.P.E. This witness also took into possession bicycle P.6 and Chappal Softi P.7 of the deceased vide memo. Exh.P.D. During spot inspection the Investigating Officer also secured sandle P.12 belonging to Muhammad Amjad son of Muhammad Hanif appellant vide memo. Exh.P.L. He also took into possession wrist watch P.13 belonging to Muhammad Amjad son of Ghulam Mustafa appellant vide memo. Exh.P.M. One locket P.14 of Muhammad Boota appellant was also taken into custody vide memo. Exh.P.N. The Investigating Officer prepared the site plan without scale Exh.P.O. On 18-10-1994 all the appellants were arrested by the Investigating Officer. On 22-10-1994 Muhammad Amjad son of Muhammad Hanif appellant while in custody led to the recovery of Chhuri P.8 from the Baithak of his house which was taken into possession vide memo. Exh.P.G. On the same day Muhammad Boota appellant while in custody led to the recovery of 32 bore revolver P.9 from the Baithak of his house and the same was secured vide memo. Exh.P.H. Similarly on the same Muhammad Amjad son of Ghulam Mustafa appellant got recovered wire lock P.10 from the house of Muhammad Boota appellant and the same was taken into possession vide memo. Exh.P.J. On the same day the Investigating Officer also took into custody bicycle P.11 under section 550, Cr.P.C. From the house of Muhammad Boota appellant vide memo. Exh.P.K. During investigation after the post-mortem examination the last-worn clothes of the deceased were produced before the Investigating Officer who took the same into possession vide memo. Exh.P.F. After completion of investigation challan was submitted before the trial Court.
5. During the trial the prosecution produced 17 witnesses in all to prove the charge against the appellants.
6. Dr. Muhammad Aslam P.W.1 conducted post-mortem examination on the dead body of Muhammad Ameen and found the following injuries on his person:--
(1) Incised wound 4 x 2 c.m. On the front of right side of chest below right nipple.
(2) Incised wound 3 x 2 c.m. On front of right side of chest 0.5 c.m. Below injury No. 1 .
(3) Incised wound 3 x 2 c.m. On front part of right side of chest 2 c.m. Below injury No.2.
(4) Incised wound 3 x 1 c.m. On epigastrium.
(5) Incised wound 2 x 1 c.m. On the right side of chest 6 c.m. To inner right nipple.
(6) Incised wound 6 x 2 c.m. On the outer surface of hand.
(7) Incised wound 5 x 1 c.m. On the outer surface of left fore-arm above left wrist joint.
(8) Incised wound 3 x 1.5 c.m. Above injury No.7 muscle deep.
(9) Absent eye ball.
(10) Incised wound 2 x 1 c.m. On the back of lower part of right chest.
(11) Incised wound 3 x 2 c.m. On the back of right side of chest below scapular margin.
(12) Blackish swelling 5 x 5 c.m. Right outer side of the head.
' In the opinion of doctor death occurred due to shock and haemorrhage caused by injuries Nos.1 to 6 and 11 which were fatal to life.
7. Hussain Ahmad P.W.2 Ex-constable took the dead body to the mortuary for post-mortem examination and after the same produced the last-worn clothes of the deceased before the Investigating Officer.
8. Muhammad Asghar P. W.3 identified the dead body of Muhammad Ameen.
9. Muhammad Pervaiz Akhtar Patwari P.W.4 prepared site plan Exhs.P.B. And P.B./1.
10. Latif Ahmad M.H.C. P.W.5 entered formal F.I.R. Exh.P.C. On the basis of the statement Exh.P.C./1. He also kept parcel of blood-stained earth and blood-stained Chhuri for safe custody in the Malkhana and later on handed over these articles to the constable for onward transmission to the Chemical Examiner.
11. Muhammad Iqbal P.W.6 was son of the deceased and the complainant of this case. This witness supported the contents of the F.I.R. And narrated in this regard before the trial Court.
12. Muhammad Ashfaq P.W.7 took the parcel of blood-stained earth to the office of Chemical Examiner and deposit the same intact there.
13. Dildar Ahmad P.W.8 accompanied the complainant (P.W.6) when he left in search of his father.
He alongwith the complainant found the dead body lying in the maize crop. This witness alongwith Muhammad Shafi P.W. Was left behind by the complainant to guard the dead body when he left for reporting the matter to the police. On the next day of occurrence i.e. 3-10-1994 in his presence police secured from the spot bicycle P.6 and Chappal Softi P.7 of the deceased vide memo. Exh.P.D.
And he signed that memo. He'also witnessed the recovery of blood-stained earth from the spot.
14. Muhammad Ramzan P.W.9 was the recovery witnesses. He did not support the prosecution case and was declared hostile. This witness was cross-examined by the learned D.D.A.
15. Muhammad Rafiq P.W.10 joined the investigation of this case. In his presence on 3-10-1994 the Investigating Officer took into possession Sandal P.12 of Muhammad Amjad son of Muhammad Hanif appellant vide memo. Exh.P.L. Wrist watch P.13 of Muhammad Amjad son of Ghulam Mustafa appellant vide memo. Exh.P.M. And blood-stained lock P.14 of Muhammad Boota appellant vide memo. Exh.P.N. He admittedly signed all these documents. In cross-examination he admitted that the deceased was his paternal-cousin as well as brother-in-law.
16. Muhammad Razzaq P.W.11 narrated that about two years and eight months back in the evening, he was coming back from his land and when he reached metalled road of Jani Wala and Mureedwala he found the appellants wandering here and there near the brick-kiln.
17. Abdul Ghafoor P.W.12 and Shabbir Ahmad P.W.13 narrated the circumstances under which all the appellants made extra-judicial confession before them at Faisalabad.
18. Zahid Abbas Shah, Inspector P.W.14 conducted investigation of this case as narrated in the earlier part of the judgment.
19. Abdul Ghani P.W.15 was the recovery witness. He did not support the prosecution case and stated that the recovery memos. Were signed by him at the police station. This witness was declared hostile and cross-examined by the learned D.D.A.
20. Munir Ahmad P.W.16 partly investigated this case. During the investigation he got prepared site plan Exh.P.B. And P.B./1 through Pervaiz Akhtar Patwari P.W.4.
21. Abdul Razzaq Constable P.W.17 took the parcel of Chhuri to the office of Chemical Examiner and delivered the same intact.
22. Learned A.D.A. Tendered in evidence report Exh.P.Q. Regarding blood-stained earth of Chemical Examiner and that of Serologist Exh.P.R., report of Chemical Examiner regarding blood-stained Chhuri Exh.P.S. And that of Serologist Exh.P.T. And closed the case for the prosecution.
23. Learned trial Court also examined the appellants under section 342, Cr.P.C. Wherein all of them denied their participation in the occurrence and pleaded their innocence. None of the appellants made any statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
24. Learned trial Court after appraisal of evidence convicted and sentenced the appellants as narrated in the earlier part of the judgment.
25. Learned counsel for the appellants submitted that it was a case of no evidence; that the prosecution had failed to prove its case beyond reasonable doubt; that the evidence of extra- judicial confession was bogus and the motive set up by the prosecution had not been proved at all. The recovery witnesses did not support the prosecution case and in the circumstances of this case it would be unsafe to rely upon the statement of the Investigating Officer in this regard. The contentions raised by the learned counsel for the appellants were opposed by the learned counsel for the complainant as well as the State.
26. I have heard the learned counsel for the parties and perused the record with their assistance.
27. The entire prosecution case rests upon the circumstantial evidence in the form of recovery of incriminating articles from the appellants as well as belongings of the accused which were allegedly left behind by them at the spot after the occurrence; extra-judicial confession; the motive for this murder.
28. As far the recovery evidence is concerned, the prosecution mainly relied upon the statements of Muhammad Ramzan P.W.9 and Abdul Ghani P.W.12. Both the recovery witnesses did not support the prosecution case and stated that the recovery memos. Were got signed by them at the police station. These witnesses were cross-examined by the learned A.D.A. Wherein they had specifically denied to have seen the recovery of incriminating articles at the instance of the appellants. In this view of the matter statement of Investigating Officer P. W.14 namely Zahid Abbas Shah, Inspector with regard to the recovery of incriminating articles at the instance of the appellants would be of no value as he being Investigating Officer is naturally interested in the conviction of the accused.
29. As far the recovery of certain articles which were allegedly left behind by the appellants- accused at the spot, after the occurrence, is concerned, these articles were of common nature, nor there were any specific sign or marks on the articles showing the ownership. Statedly, these articles were found lying near the place of occurrence during the spot inspection by the Investigating Officer and were taken into custody in the presence of brother-in-law of deceased namely Muhammad Rafiq P.W.10. Strange enough, at the same time blood-stained earth as well as the Bicycle and Chappal Softi of the deceased were also taken into custody by the police in the presence of Dildar Ahmad P.W.8 but this witness did not utter a single word with regard to the recovery of articles which were allegedly left behind by the appellants. In the circumstances this piece of evidence seems to have been fabricated later on and the same cannot be taken into consideration.
29-A. As far as the extra judicial confession allegedly made by the appellant before Abdul Ghafoor P.W.12 and Shabbir Ahmad P.W.13 is concerned, admittedly, all the appellants confessed their guilt before these witnesses jointly at the same time and place. It is a well-settled proposition of law that joint confession by the accused or confession of an accused in the presence of another accused is of no value and no reliance can be placed upon the same. The same guidelines have been laid down by their Lordships in case titled State v. Kamal Khan alias Malluh and another 1993 SCM R 1378; Muhammad Shafiq alias Chheela and another v. The State 1998 M LD 299; Shirimati Seetan v.
The State 1988 PCr.LJ 939.
' It has been observed that Abdul Ghafoor P.W.12 is neither related to the deceased nor is a man of any position to prevail upon the complainant party for any benefit of the appellants. Similarly Shabbir Ahmad P.W.13 was uncle (Phoopha) of the deceased.. The enmity of this witness with the appellant Muhammad Amjad son of Muhammad Hanif is established from the record. Statedly, his brother got registered a dacoity case against Muhammad Amjad son of Muhammad Hanif appellant in which he was discharged by the police. It is repellent to common sense that appellants would make confessional statement before witnesses of such character. Statements of both these witnesses reveal that they were asked by paternal-aunt of Muhammad Amjad son of Muhammad Hanif appellant to find out the whereabouts of the appellants. It is strange as to why.
Aunt of Muhammad Amjad son of Muhammad Hanif appellant choose these two persons leaving other kith and kins of the appellant. Statedly, the accused/appellants while narrating the mode of occurrence confessed before these witnesses that at the time of occurrence Muhammad Amjad son of Ghulam Mustafa appellant was standing at the back of the deceased who rounded the neck of the deceased with wire lock and dragged him to maize crop where deceased was given Chhuri blows. The statement of these witnesses on this score is in direct conflict with the medical evidence as no legature marks around the neck of the deceased were found during the post-mortem examination. In the circumstances of this case I do not feel persuaded to rely upon this piece of evidence.
30. The motive for this occurrence as spelt out from the statements of Abdul Ghafoor P.W.12 and Shabbir Ahmad P.W.13 is that Muhammad Amjad son of Muhammad Hanif appellant suspected illicit relations of the deceased with his sister Mst. Kaneeza and in order to wreak the vengeance, he alongwith other co-accused committed the murder of Muhammad Amin. Neither the Investigating Officer made any investigation in this regard nor any independent witness was produced by the prosecution before the trial Court in support of this piece of evidence. The retracted extra judicial confession on this score would be of no value specifically when the evidence of extra judicial confession has already been disbelieved.
31. In the cases of circumstantial evidence prosecution is duty bound to place on record the evidence which should be so interlinked as to form a continuous chain excluding all hypothesis of the innocence of the accused. This view is in line with the law laid down by his Lordship in Sarfraz Khan v. The State 1996 SCM R 188. In the present case the evidence relied upon by the prosecution does not inspire confidence and no reliance can be placed F on the same for upholding the conviction of the appellants.
32. The upshot of the above discussion is that the prosecution has not been able to prove its case beyond any shadow of doubt. It would be extremely unsafe to rely upon the prosecution evidence which neither inspires confidence nor rings true, therefore, I accept the instant appeal, set aside the conviction and sentence of the appellants and acquit them of the charge. They shall be released forthwith, if not required in any other case.
33. For the reasons narrated above, Criminal Revision No.80 of 1998 seeking enhancement of sentence of the appellants also stands dismissed.