1. ' This judgment will dispose of Criminal Appeal No,772 of 2000 filed by Noor Muhammad, Muhammad Iqbal, Amjad Hussain, Muhammad Aslam, Javed Akhtar and Allah Yar, appellants who were convicted and sentenced by learned Additional Sessions Judge, Jhang vide judgment, dated 29-5-2000 as under:-- ' All appellants under section 302, P.P.C. Imprisonment for life with a fine of Rs,20,000 each and in default 6 months' R.I. And also to pay Rs,25,000 each as compensation and in default 6 months' R.I.
2. ' All appellants under section 364, P.P.C. 10 years' R.I.
3. ' All appellants under section 148, P.P.C. 3 years' R.I.
4. ' Khizar Hayat under section 201, P.P.C. 7 years' R.I.
5. ' All the sentences were to run concurrently with the benefit of section 382-B, Cr.P.C. Criminal Revision filed by Muhammad Fazal petitioner for enhancement of sentences shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 8 a.m. On 15-1-1995 within the revenue estate of Chak No,220/JB at a distance of 5 miles from Police Station Mochiwala, District Jhang while the matter was reported to police at 2 p.m. On 14-2-1995 through complaint Exh.P.D: by Muhammad Fazal and the formal F.I.R. Exh.P.D./1 was recorded by Muharrir/H.C.
3. Briefly stated the facts of the case were that Rab Nawaz (deceased) was present alongwith the complainant Muhammad Fazal, Muhammad Iqbal and Zulfiqar at the Dera of Muhammad Fazal when Muhammad Bakhsh, Muhammad Aslam, Javed Akhtar, Noor Muhammad, Amjad Hussain, Muhammad Iqbal, Allah Yar and Khizar Hayat came to the Dera in a car bearing registration No,6677/MNF and Jeep No,FDA/581 and told them that one Noor Muhammad has got a case registered against Sofi Allah Ditta and Mansabdar etc. And that they have to appear in the office of S.P. Jhang. They asked Rab Nawaz (deceased) to accompany them for Parwavi of the same. Rab Nawaz who had to go to Bank also accompanied them. He, however, did not return till evening and an inquiry was made from Muhammad Bakhsh and others but they could not give any satisfactory answer. It was on 19-1-1995 that Muhammad Younas, S.-I. Was informed by Khizar Hayat that the dead body of Rab Nawaz was lying on a sand dune 3/4 Acres away from sixth mile stone on mettled road towards the south on Gojra Road. The accused with the connivance of Muhammad Younas S.-I. Got a case registered vide F.I.R. No,30 of 1995 under section 320, P.P.C. On 19-1-1995 on the statement of Khizar Hayat. It was stated that the dead body of an unidentified person was lying there. In fact Rab Nawaz (deceased) had been murdered by all the accused and his dead body was thrown on the sand dune. Later on the dead body was sent to the hospital for post-mortem examination. The doctor during the post-mortem examination on recovery of C.P.Rs, directed the police to inform Saad, the real nephew of the deceased. Muhammad Younas S.-I. Accordingly informed the complainant and other legal heirs of the deceased at 4 p.m. On 19-1-1995. On receipt of this information, the complainant alongwith other relatives came to Civil Hospital Jhang and identified the dead body. The police was informed that Muhammad Bakhsh and 8 others had taken Rab Nawaz alongwith them and a request was made to the police for registration of a case. Liaqat Ali Bodla, D.S.P. Present in the hospital refused to register the case on the statement of the complainant and stated that he would add the offence under section 302, P.P.C. In the F.I.R. Already lodged in respect of his death. The complainant then obtained a copy of the post-mortem report a perusal of which revealed that the death of Rab Nawaz had been caused by injuries 2 to 8 mentioned in the report and that all the injuries had been caused within the duration of 12 hours with a blunt weapon on 19-1-1995. The complainant was convinced that the death of Rab Nawaz had not been the result of any accident and that Muhammad Younas S.-I. With the connivance of Muhammad Bakhsh and Khizar Hayat Heraj and others had shown the same as an accidental death. Rab Nawaz who was personally known to Khizar Hayat was taken by him, Muhammad Bakhsh and others from the Dera of the complainant and had got a case registered for the accidental death of an unidentified person. Muhammad Younas S.-I. Had come to know about the legal heirs of the deceased through the C.P.Rs, and identity cards but he did not inform them accordingly. The complainant and other relatives made efforts for the registration of a case but they failed. In the meanwhile, a Punchayat was constituted and the party of Muhammad Bakhsh and their opponent Lal Khan etc. Were made to furnish Agwan of Rs,5,00,000. It was on 30-1-1995 at 8 a.m. That Hashim son of Baqir and Amir Khan came to the Dera of the complainant and told him that during the night in between 18/19th January, 1995, when they were taking sugar cane on their tractor trolley, they saw the eight persons Muhammad Bakhsh etc. Near the graveyard of Shah Zinda unloading a gunny bag from their jeep on the road. On inquiry Muhammad Bakhsh told them that they were carrying goods. Hashim and other further told the complainant that on the next day in the morning they went to Lahore for purchase of spare parts of peter engine and after four days when they came back they came to know of the murder of Rab Nawaz and also that his dead body was recovered from the place west of the graveyard of Shah Zinda on 19-1-1995. Hashim and others contacted Muhammad Bakhsh Noul after two days and inquired from him whether the dead body of Rab Nawaz deceased was in the gunny bag with them whereupon Muhammad Bakhsh entreated that the same may not be mentioned to any one. The complainant immediately atter that filed a writ petition. In the Lahore High Court, Lahore on 31-1-1995 for an order for the registration of a case against the eight accused. Muhammad Bakhsh and others accused when came to know of the writ petition went to Khushal and Amir and disclosed to them that they had taken away Rab Nawaz and killed him with Sota blows during the mid night of 18th/19th January, 1995 and threw his dead body near the graveyard of Shah Zinda so that they might implicate their opponents Soofi Allah Ditta etc. Falsely for the murder case of Rab Nawaz deceased. They further told them that their plans had fallen through and that the legal heirs of the deceased have come to know about the same. They requested the two to effect a compromise between the accused and the legal heirs of the deceased.
6. ' After registration of the formal F.I.R., Nazir Ahmad, Inspector (P.W.15) reached at the spot, prepared rough site plan Exh.P.T., recorded statements of the witnesses under section 161, Cr.P.C., visited the place from where the dead body was stated to have been recovered, took into possession from the file inquest report Exh.P.C. Injury statement Exh.P.B. Searched for the accused, got physical remand of accused Amjad, Iqbal, Noor Muhammad and Allah Yar, thereafter, he was transferred, then the investigation was taken over by Raja Muhammad Inayat Ullah (P.W.16) who on 20-6-1995 arrested Muhammad Bakhsh (since dead) Javaid Akhtar and Khizar Hayat, found the prosecution case to be correct and directed the S.H.O. To prepare challan against all the accused.
7. ' Prosecution in order to prove its case produced 17 witnesses in all, then statements of the accused were recorded under section 342, Cr.P.C. One D.W. Namely Mukhtar Ali, D.S.P. Was also produced and after conclusion of the trial, all the accused were convicted and sentenced as stated above.
8. ' Learned counsel for the appellants after having read the entire prosecution evidence and the documents on record submits that there is delay in lodging the F.I.R. Eye-witnesses were not present at the place of occurrence, in fact it was an unwitnessed occurrence, there is joint extrajudicial confession which is not admissible in evidence, the alleged witnesses of extra-judicial confession neither informed the complainant nor the police about confession of the appellants, the witnesses are interested and inimical towards the appellants' motive given in the F.I.R. To the effect that the appellants wanted to involve their own enemies for the murder of Rab Nawaz, stands falsified because there is no evidence on record in this regard, the evidence of last seen furnished by Amir (P.W.7) is not plausible because according to him he saw Muhammad Bakhsh (now dead) and other accused in the dark hours of night while taking gunny bags on their heads but no gunny bag was recovered, there is no evidence to connect the appellants with the commission of offence, the writ petition on the basis of which the instant case was registered, there is no mention of extra- judicial confession of the appellants in that and that the prosecution has failed to prove its case against the appellants.
9. ' Learned counsel for the complainant who has also filed a revision petition for enhancement of sentence submits that the appellants have not denied the last-seen evidence because it were the appellants who had taken the deceased from his house on 15-1-1995 while the death took place on 19-1-1995, and that the appellants have failed to give any satisfactory explanation of absence of the deceased. Further submits that writ petition was filed long before registration of the F.I.R.
10. ' Learned counsel for the State with his usual candidness submits that case is full of doubts, there is no direct evidence, according to prosecution the deceased was taken by the appellants allegedly on 15-1-1995, there is no evidence that anybody had seen the deceased in the company of the appellants on 16th, 17th and 18th while the dead body was recovered on 19-1-1995, in fact he does not support the complainant in this case.
11. ' I have heard learned counsel for the parties and have gone through the record. In the instant case, earlier F.I.R. Was registered on the statement of Khizar Hayat, accused in which it was alleged that the deceased Rab Nawaz has died due to accident. Later on Muhammad Fazal, complainant, filed Writ Petition No,1346 of 1995 before this Court which was disposed of on 2-2-1995 with the following orders:-- ' "On the basis of information having been given by the petitioner, it is argued by the learned counsel that the respondent S.H.O. Police Station Saddar Jhang was duty bound to register the case because offence alleged to have been committed by the accused was cognizable. In support of the plea, learned counsel refers complaint which he lodged in this behalf in the police station.
12. Learned Law Officer states that he will not oppose if the petitioner is asked to approach the police for redressal of his grievance. Learned counsel seems to be satisfied with this statement and wishes to go to inform the police that an offence has been committed. Let the petitioner do so. If such complaint is lodged, it shall be attended to by the Senior Superintendent of Police, Jhang to find out whether or not some cognizable offence has been committed. In case after hearing the persons complained against, it is found by him that interference is called for, he would direct the said S.H.O. To register the case forthwith for its investigation under the provisions of Code of Criminal Procedure, 1898. If the information is found to be frivolous and unfounded, it shall be dropped without proceeding further. In any case, the police would perform their functions strictly in accordance with law. With these observations, this petition is disposed of."
13. ' It is admitted fact in the instant case there is no eye-witness of the occurrence. It is a case of circumstantial evidence. In a case of circumstantial evidence, prosecution has to link the chain in such a manner that there should be convincing evidence to prove the guilt against the accused.
14. According to the complainant the deceased was taken by the appellants on 15-1-1995, till his death, which took place on 19-1-1995, nobody reported to the police about disappearance of the deceased nor any report was lodged by any relative of the deceased. This conduct on the part of the complainant party is unnatural.
15. ' As far as extra-judicial confession is concerned, that was furnished by Muhammad Fazil (P.W.5) and Amir son of Ahmad (P.W.6). Statements of those P. Ws. Have been duly confronted. I have gone through their statements. The joint confession, under the law has no evidentiary value and cannot be believed for conviction. It was so held in Anwar Jamal Hussain and another v. The State PLJ 1992 Cr.C. (Lahore) 30.
16. ' The last-seen evidence was furnished by Amir son of Noor Muhammad (P.W.7). His statement does not inspire confidence. According to him, he had seen the present appellants and Muhammad Bakhsh (since dead) taking a gunny bag on their heads. Who was carrying the gunny bag is not mentioned. It was dark hours of the night when this witness had seen the appellants. He never reported the matter either to the complainant or to the police in this regard. This conduct of his is also unnatural.
17. ' So far as recoveries are concerned, none of the weapon was bloodstained. There is clear violation of section 103, Cr.P.C. Even otherwise he is related to the deceased so his testimony should have been corroborated by some other unimpeachable source, which is lacking here. The recovery witness is Zulfiqar (P.W.9) I have gone through his statement. The same is not confidence inspiring.
18. ' After scanning the entire prosecution evidence and weighing the submissions made by learned counsel for the parties and the conceding statement of learned counsel for the State I am of the considered opinion that in the instant prosecution has miserably failed to prove its case against the appellants rather the appellants have been able to create dents in the prosecution story, the benefit of which has to go to the accused.It is a case of circumstantial evidence and not of direct evidence. Joint extra-judicial confession is not admissible in evidence. The last seen evidence is not trustworthy and the recoveries are also in violation of section 103, Cr.P.C. Apart from being blood-stained.
19. ' The irresistible conclusion of what has been discussed above is that the prosecution case is full of doubts and by extending the benefit thereof, conviction and sentence recorded against the appellants is set aside, by accepting their appeal. They are in jail and shall be released forthwith, if not required to be detained in any other case. For these reasons, revision filed by the complainant is dismissed.