' NAEEM ULLAH KHAN SHERWANI, J.---Muhammad Arif alias Pappu was tried by a learned Additional Sessions Judge at Lahore for committing murder of Mst. Manzooran Bibi after her abduction. By virtue of his judgment dated 24-7-1995, the learned Trial Court found him guilty of the murder charge, convicted him under section 302(b), P.P.C. And punished him with death. The said learned Judge, however, acquitted him of the charge under section 363, P.P.C.
2. Murder Reference No,199 of 1997 seeks confirmation of said sentence of death awarded to Muhammad Arif alias Pappu, whereas he has approached this Court through Jail by filing Criminal Appeal No,73/J of 1998 to call in question conviction and sentence passed against him by the learned Trial Judge through the said judgment.
3. Occurrence of the alleged incident had taken place on 15-4-1990 at 6-30 a.m. In the area of village Rakh Burj, situate at a distance of eleven kilometers from Police Station Barki, Lahore and the matter was reported by Abdul Ghani (P.W.7) to Qaiser Waseem, S.I. (P.W.12) on 17-4-1990 at 12-30 a.m. (night), when he alongwith a police contingent was available on patrol duty at Kothi Hair. The said Sub-Inspector reduced into writing complaint (Exh.P.D.) faithfully as per dictation of the complainant and despatched the same to the police station through Manzoor Ahmad C. No,7678 for registration of formal F.I.R. Upon receipt thereof at the police station, Haq Nawaz, M.H.C. Drew up F.I.R. (Exh.P.D.) on the same night at 1-45 a.m. Without any addition or subtraction on his part.
4. Story of Abdul Ghani-complainant (P.W.7) contained in the F.I.R. (Exh.P.D./1) is as follows:-- ' He is a labourer. He is married to Mst. Shahnaz, daughter of one Soba Taili, resident of Chungi Amar Sindhu, Lahore. Muhammad Mushtaq son of Soba is married to Mst. Surraya Bibi, sister of the complainant. On 15-4-1990 at about 6-30 a.m. The complainant left for his job at Bhatta Chowk. His mother and sister Mst. Manzooran Bibi are maid servants in a Bungalow situate at Bhatta Chowk.
His mother had already left for the place of her duty, whereas Mst. Manzooran Bibi was yet to go.
The complainant left his house leaving Mst. Manzooran Bibi his sister. He returned home at 2-30 p.m. After being free from his duty. Mst. Manzooran Bibi was not available in the house. Then he inquired from his wife as to where Mst. Manzooran Bibi was. His wife told him that she had left the house since morning. Mst Manzooran Bibi had not reached the place of her duty. The complainant and others got worried about her and started searching her. During this process. Nawab Din son of Chiraghdin and Billa son of Ali Muhammad, both Taili by Caste, resident of Rakh Burj, told them that they had seen Mst. Manzooran Bibi and Muhammad Arif alias Pappu son of Soba moving at the bank of B.R.B. Canal at 10-30 a.m. The complainant continued making search for Mst. Manzooran Bibi and Muhammad Arif, but failed to find them out anywhere. During process of search, the complainant and his younger brother Shaukat Ali discovered dead body of Mst. Manzooran Bibi in a trench near Head Bridge Hair. They entertained a belief that Muhammad Arif alias Pappu had killed her. Leaving Shaukat Ali by the side of dead body, the complainant left for the police station to make report of the occurrence.
' Motive set up by the complainant was that Muhammad Arif had demanded hand of Mst.
Manzooran Bibi, but a flat refusal was given Mst. Manzooran Bibi was then engaged with Sardar alias Dara. Muhammad Arif was highly annoyed overall this and just because of this grievance committed Qatl-eAmd of Mst. Manzooran Bibi after her abduction. That is all about the theory propounded by the complainant through his statement (Exh.P.D.).
5. Preceding registration of case. Qaiser Waseem, S.I. (P.W.12) took over the uphill task of investigation like a good investigator. He immediately proceeded towards the spot alongwith the complainant, inspected the venue of occurrence and by using search light found dead body of Mst. Manzooran Bibi lying in a Morcha on B.R.B. Canal. Rough site Plan ,(Exh.P.G.) of the place of occurrence was prepared by him. He then inspected the dead body, prepared inquest report Exh.P.F. And despatched the same to the mortuary for post-mortem examination under the escort of Haroon Khan and Shabbir Hussain constable (P.Ws.1 and 4), who after post-mortem examination produced before the Investigating Officer blood-stained clothes of the deceased, Shalwar (P.1), Shirt (P.2), Vest (P.3), Brazier (P.4), Dopatta (P.5) and Paranda (P.6). These articles were taken into.
Possession by the investigator through memo. Exh.P.A. He secured blood-stained soil from the place of occurrence through recovery memo. Exh.P.B., duly attested by Muhammad Yonas, A.S.I.
(P.W.2) and Abdul Ghani complainant (P.W.7). He got prepared site-plan of the place of occurrence (Exh.P.C.) from Abdul Karim, Revenue Patwari (P.W.3). He apprehended Muhammad Arif appellant on 17-4-1990 and on his pointation on the same day, Churri (P.7), wrapped in a polythene shopper, was recovered from near the Head Bridge of Canal B.R.B. It was sealed into a parcel and taken into possession through memo. Exh.P.E., duly attested by Khushi Muhammad (P.W.8) and Shaukat Ali P.W. (not produced). He handed over the case property to Muharrir for keeping the same in police station Godown and also its onward transmission to the concerned quarter. He recorded statements of the relevant witnesses . Under section 161, Cr.P.C. And after completion of the investigation challaned the accused to face trial in accordance with law.
6. The trial Court after framing the charge, put the same to the appellant, to which he pleaded not guilty and claimed to be tried. In these circumstances, the prosecution was called upon to adduce evidence to prove the charge against the appellant. To achieve its goal, the prosecution ventured to produce as many as thirteen witnesses. We would like to make a passing reference to their statements.
' Parts played by Haroon Khan, constable (P.W.1), Muhammad Younas, A.S.I. (P.W.2), Abdul Karim, Revenue Patwari (P.W.3), Shabbir Hussain, constable (P.W.4), Khushi Muhammad (P.W.8) and Qaiser Waseem, S.I. (P.W.12) during the course of investigation have already been discussed in the earlier paragraphs, so their statements need not be reproduced here again.
' Muhammad Akram alias Billa (P.W.5), who is an employee in an Army Farm at Rakh Burj, stated that he saw the appellant and Mst. Manzooran Bibi while going together at 10-30 a.m. On 15-4-1990.
P.W.6 Sardar alias Sarwar deposed that a day before the occurrence, the appellant accompanied by another boy came to him and asked him to disengaged himself with Mst. Sardaran, but he refused to do so. Upon which they grappled with him, but he went into his house and on the eventful day the appellant sent a message to him that he had murdered Mst. Manzoorari Bibi and has thrown her dead body on the Canal Bank.
' P.W..7 Abdul Ghani complainant of the crime report, furnished ocular account of the occurrence.
He in a nutshell reiterated contents of the F.I.R. (Exh.P.D.1).
' P.W.9 Muhammad Ashiq deposed that on 1-5-1990 Amanat Ali, M.H.C. (P.W.11) handed over to him three sealed parcels containing blood-stained earth, last worn-clothes of the deceased for their onward transmission to the office of Chemical Examiner, Lahore and he accordingly did so on the following day.
' P.W.10 Muhammad Rafiq deposed that on 15-4-1990 the appellant came to him and stated that he had committed murder of Mst. Manzooran Bibi for the reason that a promise had been made with him to give her hand, but she was engaged with one Sarwar. He further deposed that on 17-4-1990 when he reached his residence, he came to know that dead body of Mst. Manzooran Bibi recovered and accordingly he made statement before the police.
' P.W.11 Amanat Ali, H.C. While working as Muharrir received sealed parcels containing blood-stained clothes of the deceased, blood-stained soil and Chhurri, from the Investigating Officer for keeping them in the Police Station Godown and for their onward transmission to the relevant quarters, who accordingly deputed Muhammad Ashiq, constable (P.W.9) for doing the said job. As long as said parcels remained in his custody, nobody tampered with them.
' As Dr. Farooq Mustafa, who conducted autopsy upon dead body of Mst. Manzooran Bibi has gone abroad, as per statement of Allh Ditta, constable (C.W. l) and Muhammad Jameel, Process Server (C.W.21), Muhammad Shah, Senior Clerk- cum-Record-Keeper (P.W. 13) appeared to testify his handwriting and signatures on the post- mortem examination report. Exh. P.I. Is the correct carbon copy of the post-mortem examination report, whereas Exh.P.1/1 is pictorial diagram showing the locale of injuries. Both the documents bear signatures of the doctor, which were duly identified by this witness.
7. Learned Prosecutor gave up Ali Muhammad, Nawab Din, Shaukat Ali and Haq Nawaz, MHC. Being unnecessary and after tendering in evidence reports of the Chemical Examiner Exhs.P.I and P.J and those of the Serologist Exhs.P.K. And P.L., declared the prosecution case close.
8. After the prosecution had availed of full opportunity of producing its evidence, the appellant was examined under section 342, Cr.P.C. In order to afford him an opportunity of explaining the incriminating circumstances appearing in evidence against him. He not only denied correctness of allegations levelled against him, but also in an answer to question "why this case against you and why the P.Ws. Have deposed against you?" stated as under:-- "Two brothers are married with the sisters of the complainant Abdul Ghani and my sister is also married with Abdul Ghani complainant. Due to domestic quarrel so many times I abused the wife of my brother Abdul Razzaq in absence of my brother and I often gave her beating and she complained about this beating to her broths Abdul Ghani and thereafter Abdul Ghani came to my house and threatened for dire consequences and due to that reason and family affairs.
' I have been falsely involved in this blind murder case."
He, however, declined to appear as a witness in his own defence as envisaged by the relevant provisions of section 340(2), Cr.P.C. Although he opted to produce defence evidence, but did not produce the same.
9. The learned Trial Judge after considering all facts and circumstances of the case pronounced his verdict of guilt against the appellant as afore-mentioned.
10. Learned counsel for the appellant has highlighted the salient points formulated by him in the following manner:--
(i) That there was more than two days' delay in reporting the matter to the police.
(ii) That extra-judicial confession of the appellant before Sardar (P.W.6) and Muhammad Rafiq (P.W.10) stood already disbelieved. It was believed qua motive part of the occurrence by the learned Trial Judge. The last seen evidence furnished by Muhammad Akram alias Billa (P.W.5) is unbelievable. It inspires no confidence at all.
(iii) That the prosecution witnesses are not only related inter se but also of partisan character. The conduct of prosecution witnesses was most unnatural and it would not be safe to rely upon their testimony. The appellant had been acquitted of the charge under section 363, P.P.C. And as such veracity of the prosecution story is reduced to a naught.
(iv) That evidence of recovery of chhurri (P.7) is a patent fabrication. The recovery of chhurri (P.7) is extremely doubtful.
11. Learned counsel for the state after due consulation of record submits that name of the appellant figures in the first information report. The prosecution is in possession of last seen evidence of Muhammad .Akram (P.W.5), recovery of Chhurri (P.7) in presence of Khushi Muhammad (P.W.8) and motive evidence. He supports the judgment.
12. We have heard learned counsel for both the sides with utmost care and devotion and perused the record in the light of their respective arguments.
13. The most daunting task for a Judge is to evaluate evidence led by the parties in a case, according to cardinal principles of appreciation of evidence. We have noticed that there is two days' delay in lodging of the first information report with the police, which throws a' cloud of doubt upon genuineness and correctness of the prosecution story. Muhammad Akram alias Billa (P.W.5) was expected to lay information before the complainant having seen the deceased in the company of the appellant at the bank of B.R.B. Canal. On seeing them, he did neither a talk with them, or questioned them about their activities, which makes his statement untrustworthy.
Everybody had come to know that Mst. Manzooran Bibi was not available and was missing since 15-4-1990. Muhammad Akram alias Billa should have established contact with the complainant to tell him that Mst. Manzooran Bibi was seen by him and Nawab Din P.W. On the bank of B.R.B., Canal.
He is a made up witness. His testimony is of no evidentiary value being Highly unnatural, improbable and unbelievable one.
14. The evidence of Sardar and Muhammad Rafiq (P.Ws. 6 and 10) has already been disbelieved except to the extent of motive. This piece of evidence is fabricated one. It is always considered to be a weak type of evidence. Statements of these witnesses are straightaway discarded by us, being most untrustworthy. Their statements contain not a particle of truth in them. They are most unreliable witnesses and as such their testimony is disbelieved.
15. Evidence of Khushi Muhammad (P.W.8) is fantastic one. Quite close to the place of recovery, canal was available and it was not much difficult for the appellant to have caused destruction of this piece of evidence. h is not understandable as to why he wrapped Chhurri (P.7) in a polythene shopper and preserved the same for its onward production to the police. It is not a reliable piece of evidence and, as such, is ruled out of consideration.
16.It was unseen occurrence. Even the prosecution failed to point out the location of place of occurrence. There was absolutely no occasion for Mst. Manzooran Bibi to have accompanied the appellant to get herself killed. As the principle evidence fails motive and medical evidence cannot prove case for the prosecution. Medical evidence does not establish identity of.The culprit. It may simply give us extent, nature, number, locale of injuries, probable weapon of offence and cause of death.
17.The prosecution has lawfully failed to establish case against the appellant beyond any shadow of doubt. As the prosecution evidence is pregnant with innumerable infirmities, and real doubts of substantial nature, float on the surface of the evidence, so, we accept this appeal and quash conviction of the appellant. He is directed to be released from custody forthwith, if not required to be detained in any other case.
18. In this view of the matter, death sentence of the appellant is not confirmed and Murder Reference is answered in the negative.
' Death sentence not confirmed/acquittal ordered.