The judgment dated 12-4-1999 passed by Rana Zahoor-ul-Haq Rana, learned Additional Sessions Judge, Sheikhupura has been assailed through this appeal, whereby the appellant Muhammad Yar alias Yari has been convicted under section 302(b), P,P.C. And sentenced to life imprisonment, also to pay a compensation of Rs.50,000, in default thereof to undergo six months R.I. He was also convicted under section 364, P.P.C. And sentenced to undergo ten, years R.I. With a fine of Rs.25,000, in default thereof to further undergo six months R.I. He was further convicted under section 201, P.P.C. And sentenced to undergo seven years R.I. With a fine of Rs.25,000, in default whereof to further undergo six months R.I. All the sentences were ordered to run concurrently.
2. The prosecution case as revealed from the F.I.R. Recorded on the statement of Muhammad Hussain complainant P.W.9 is that Muhammad Khalid deceased was his brother-in-law who was a close friend of Muhammad Yar appellant. On 16-4-1996 at about six p.m., the complainant was sitting in the house of Muhammad Khalid deceased. Muhammad Yar appellant came there and told him that he had a young buffalo (Jhoti), if he was interested in purchasing the same he may accompany him. Muhammad Khalid received Rs.5,000 from his wife and went with Muhammad Yar appellant. As Muhammad Khalid did not return till late at night, the complainant got worried. He went to the house of Muhammad Yar appellant but no one was present there. On his way, he met Muhammad Tufail P.W.6 who told him that on 16-4-1996 at about 6-30 p.m. The appellant was carrying a 12 bore gun and Khalid deceased was accompanying him. Since Khalid could not be traced out he laid a strong suspicion on the appellant that he had murdered Muhammad Khalid to rob Rs.5,000. The report was made with the police station on 18-4-1996 at 8.10 a.m.
3. After usual investigation the appellant was sent up to face trial in the Court of Mr. Zahoor-ul-Haq Rana, learned Additional Sessions Judge, Faisalabad who on conclusion of the trial convicted and sentenced him as detailed above.
4. The prosecution in order to prove, its case examined ten witnesses. Dr. Aftab Ahmad P.W.1 conducted the post-mortem examination of Muhammad Khalid deceased and described the following two injuries on his dead body:--
(1) Fire-arm wound of entry 4 c.m. In dia x going deep on right head. Lower half of ear is absent and edges of wound were burnt.
(2) Fire arm wound of exit 6 c.m. x 4 c.m. x going deep on left eye and nose. Left eye was absent, The injuries were ante-mortem, had been caused with fire-arm and were sufficient to cause death in ordinary course of nature. Probable time lapsed between death and post-mortem was about 18 to 24 hours. The post-mortem examination was conducted on 19-4-1996 at 9.00 a.m. According to this the death would have been caused some time in the morning of 18-4-1996.
5. Muhammad Tufail P.W.6, Iftikhar Ahmad P,W.7, Ghulam Mustafa P.W.8 and Muhammad Hussain P.W.9 and Muhammad Inayat S.I. P.W.10 the Investigating Officer are important witnesses. Whereas the remaining witnesses are more or less of formal nature. According to Muhammad Tufail P.W.6 on 16-4-1996 at about 6.30 he saw Yar Muhammad and Muhammad Khalid going together ahead of him. Muhammad Yar was armed with a gun. He further stated that on 18-4-1996 Muhammad Yar alias Yari appellant disclosed the place where he committed the murder of Muhammad Khalid deceased. He further submitted that Muhammad Yar confessed that he took him along on the pretext of selling a buffalo for Rs.5,000. He further stated that the accused appellant made extra- judicial confession regarding murder of Muhammad Khalid deceased in the wheat crop of Asghar Bhatti.
6. Iftikhar Ahmad P.W.78 made a statement that on 18-4-1996 Yar Muhammad while in police custody made extra-judicial confession that he took away Muhammad Khalid with him on the pretext of selling a buffalo, and therefore, killed the deceased with his 12 bore gun and removed Rs.5,000 from his person. He further stated that the appellant led the witnesses and the police party to a pond where he had buried the dead body of Muhammad Khalid. The appellant also pointed out the place where he had killed Muhammad Khalid.
7. Ghulam Mustafa P.W.8 is the witness of recovery of Rs.3,500 and licence P.6 at the instance of appellant from his house. Apart from the amount, the Identity Card of the deceased P.7 and his handkerchief P.8 were also secured by the Investigating Officer at the instance of the accused.
8. Muhammad Hussain complainant P.W.9 reiterated the statement already made by him in the F.I.R. And made a statement similar to that of aforesaid witnesses.
9. Muhammad Inayat S.-I. P.W.10 conducted investigation of the case. He recorded the statements of the witnesses and made recoveries of gun P.5, its lience P.6, handkerchief of the deceased P.7 and his Identity Card P.8 and also Rs.3,500 were recovered at the instance of the appellant. The Investigating Officer also stated with regard to the place of incident whereto the appellant led the police party and witnesses. It is important to note that from near the dead body and empty cartridge P.1 was also recovered by the Investigating Officer during the site inspection.
10. In nutshell, this is the entire evidence what was produced by the prosecution to bring whom the guilt under sections 302, 364 and 201, P.P.C. On close of the prosecution evidence the appellant was examined under section 342, Cr.P.C. He denied having committed the offence and pleaded his innocence. He explained that he was implicated in this case due to party faction and political rivalry in the village. Moreover, the P.Ws. Were inimical to him, therefore, they falsely deposed against him.
11. The relevant excerpts from the prosecution evidence have been noted above. The findings of commission of murder are mainly based on the evidence of extra-judicial confession furnished by Muhammad Tufail P. W .6 and Iftikhar Ahmed P.W.7. A bare perusal of evidence of Iftikhar Ahmad reveals that Muhammad Yar made so-called confessional statement when he was in police custody. Any statement made by an accused person while in police custody is inadmissible in evidence. Therefore, the same cannot be read in evidence at all. Muhammad Tufail P.W.6 has also spoken about the confession but he has not given any detail of the confession, which was made by the accused before him. He only stated that the accused made extra---judicial confession of murder of Muhammad Khalid deceased in the wheat crop of Asghar Bhatti. In order to prove a confessional statement, it is absolutely necessary that actual words used by the maker of a confession have to be reproduced. Mere statement about extra-judicial confession regarding killing of the deceased in the fields, is not at all sufficient to treat this statement as a confessional statement. Apart from that the statement has been made after deposing about the recoveries effected at the instance of the appellant. So-called recoveries or pointation was made by the accused during police custody, therefore, if at that time the confessional statement is made before him then the same would have been made in police custody. On that score as well, the statement is totally inadmissible. The evidence of extra---judicial confession brought on record by Muhammad Tufail and Iftikhar Ahmad, therefore, apart from being extremely insufficient is totally inadmissible, therefore, cannot be treated as a part of evidence.
12. The next piece of evidence comprises of the recoveries and pointation. I have gone through the entire evidence with the help of the learned counsel but it has no where come on the record as to how and when the dead body of the deceased Muhammad Khalid was detected or found. There are mere indications in the statements that the dead body was lying somewhere in the pond in or near the field of Asghar Bhatti but no clear or any unambiguous statement has been made or any evidence in this respect has been brought on record. The Investigating Officer as well, did not state specifically as to where and in what manner the dead body was found or recovered. The statements of the witnesses are confined only to the extent that the appellant led them towards the place where he committed the murder and he also pointed out the place where he threw the dead body. These statements admittedly were made while in police custody. Under Article 38 of Qanun-e-Shahadat, any confession to a police officer cannot be proved. Exceptional Article is Article 40, according to which when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of the police, so much of such information may be proved. This information may amount to a confession or not but it must distinctly relate to the fact so discovered. The language in which this Article has been couched provides an exception to the general rule of inadmissibility of confessional statement in custody of the police. However, any statement, may be it amount to confession or not, if as a consequence of the statement a fact is discovered then that portion of the statement alongwith the factum of recovery becomes admissible. The fact to be discovered in consequence of the statement should be such which as defined under section 2(1)(d) of Qanoon-e-Shahadat is "anything, state of things or relation of things capable of being conceived by senses; and any mental condition of which any person is conscious". It has further been elucidated by the illustration. The fact which is envisaged as such means something to be perceived by any of the five senses. In order to understand and comprehend the principle laid down, it is necessary that the fact should be such which was not known to anyone else except the accused and the same was disclosed on a disclosure made by him e.g. While confining to the facts of the case in hand, had the appellant pointed out that the dead body of Muhammad Khalid deceased is lying at such and such place or has been buried in such and such manner and the same would have been recovered or detected on his pointation, then the statement with regard to recovery of dead body would be admissible in evidence. Obviously the statement otherwise amounts to confession before the police because the dead body and its pointation clearly specifies the commission of murder but since the discovery led to disclosure of a fact which was not known to anyone else except the accused, the same would be admissible and would be treated as evidence against the accused. In the present case the situation is different. The appellant has pointed out the place where the committed the murder or the place where according to him he threw the dead body. Pointing to an open place would not amount to discovery of a fact unless the same is associated with some other indication e.g. Blood-stained earth or bones of the deceased were found or some other article connected with the dead body was recovered then the pointation would have been valid. Mere pointation to a place without its being associated with any other evidence of commission of murder would by itself not be covered by Article 40 of the Qanun-e---Shahadat, 1984. The evidence of so-called detection or disclosure being not covered by Article 40 would be inadmissible in evidence. I am fortified in this view by the observations made in case of "Ramkishan Mithnlal Sharma and others v. State" (AIR 1955 SC 104), wherein it was observed that when in consequence of information furnished by an accused a fact is disclosed then the discovery of that fact specifies guarantee of truth of information. The confession in so far as it is confirmed by the discovery is shown to be true, therefore, becomes admissible. The rationale of the Article 40, therefore, is that if a confessional statement discloses a certain fact associated or concerned with the commission of the murder then the same is admissible and will be accepted as evidence. In the present case no such recovery of a' fact was made, therefore, the evidence in this respect is also not admissible.
The prosecution, therefore, has not succeeded in proving its case vis-a-vis commission of murder by the accused appellant. It will be relevant to observe that presumption, however, strong may be, cannot be treated as a substitute of evidence. No safe reliance can be placed thereon. The charge ct Qatl-e-Amd i.e. 302, P.P.C. Could not be established, the conviction under section 302, P.P.C. Is, therefore, set aside. For the same reasons and on G similar ground the offence under section 201, P.P.C. i.e. Causing disappearance of evidence or giving false information to screen the offence cannot be held to have been established. Appellant's conviction under section 201, P.P.C, as well, is therefore, set aside.
Coming to the charge under section 364, P.P,C., as the appellant had been charged under sections 302, 201 and 364, P.P.C., the evidence of three P.Ws. i.e. Muhammad Tufail P.W.6, Iftikhar Ahmad P.W.7. And Muhammad Hussain P. W .8 are consistent on .The point that they saw Muhammad Yar taking Muhammad Khalid deceased alongwith 'him. Muhammad Hussain complainant has unequivocally stated right front the beginning that Muhammad Khalid was taken away by him on the pretext of selling buffalo (Jhoti) to him which means that he was taken away deceitfully and as such the ingredients of section 364, P.P.C. As laid down under section 362, P.P.C. That to take away any person by deceitful means have been fulfilled as credible evidence in this regard has come on record. After Khalid had been taken away by the appellant he was found dead thereafter. The necessary ingredient of section 364, P.P.C. That abduction of a person should be in order that such person may be murdered or so disposed of, so as to danger of being murdered have been amply fulfilled. There is evidence of his abduction and also it has been proved that Muharafnad Khalid had been murdered thereafter. The recovery of Rs.3,500 at the instance of the appellant which has been denied by him during statement under section 340(2), Cr.P.C, and also recovery of Identity Card and handkerchief of the deceased and no explanation came forward from the appellant, lead only to one inference that the abduction had been made in order to commit murder of Muhammad Khalid deceased. The prosecution although failed to discharge its onus under section 201, P.P.C. Yet as successfully discharged its onus to bring home the guilt under section 364, P.P.C. In this regard I am fortified by the law enunciated by the Hon 'ble Supreme. Court of Pakistan in the case titled: Jagdev and 12 others v. The State (1971 PCr.LJ 162). It has been laid down that the question whether offence under section 302 or 364, P.P.C. Is constituted, the case is decided on its facts and circumstances. The proximity of time between abduction and murder and also proximity of place of murder and abduction are important factors in determining whether the offence falls under section 302 or 364, P.P.C. Following this guideline and also the observations made in the case of "Khan Muhammad and another v. The State" (1981 SCM R 597), wherein under similar circumstances, the accused was held not guilty under. Section 302, P.P.C., however, his conviction under section 364, P.P.C. Was upheld and maintained.
This criminal appeal is disposed of in above terms.