' A case F.I.R. No, 147 of 2000 under sections 364/302/201/297, P.P.C. Had been registered at Police Station Musafir Khana, District Bahawalpur on the complaint of Manzoor Ahmad complainant to the effect that the brother of the complainant Malik Muhammad Mushtaq had gone to District Bahawalpur in connection with the recovery of his arrears of sale price of the goods supplied by him to Dr. Saeed Ahmad. He had told his family members that he would come back after 8/10 days.
When he did not return till 12/13-5-2000, the complainant alongwith his nephew Muhammad Aslam and cousin Moazzam Ali went to Bahawalpur on 14-5-2000 and then on 15-5-2000 they had gone to Lodhran and made queries about the complainant's brother, but he was reported to have not gone there. Thereafter, the complainant, alongwith his companions on 16-5-2000 went to Ahmadpur East where he met with some doctors and Hakeems, who told that Malik Mushtaq Alriad, brother of the complainant had informed them to come on the first date but he had not come so far. Then the complainant and his companions went to Dr. Saeed Ahmad in Mama Wahi Hussain, whose name was included in the recovery bills, but he was not available at his shop. Then they went to his house to inquire about Malik Mushtaq Ahmad. Dr. Saeed Ahmad informed them that Maik Mushtaq Ahmad had come to him on 3-3-2000 and had received. Rs, 5,000 and thereafter he had not come. The complainant's cousin recognized him and asked him that he was the same person who had given Rs, 5,000 to his brother Mushtaq Ahmad 5/6 months earlier and thereafter snatched the same, upon which a scuffle had taken place. The itiformation supplied by the Doctor Saeed Ahmad about Mushtaq Ahmad was is contradiction with the statement of his brother Rafiq Ahmad who told that Mushtaq Ahmad had come 10/12 days age. This situation created doubt in the minds of the complainant and his fellows and an apprehension cropped up in the mind of the complainant that Dr. Saeed Ahmad was responsible for the disappearance of his brother. On the basis of the suspicion of the complainant the present F.I.R. Was lodged against Dr. Saeed Ahmad under section 364, P. P.0 .
2. After registration of the F.I.R., Dr. Saeed Ahmad was arrested and while under the police custody he made a confession to the effect that he had murdered Malik Mushtaq Ahmad, brother of the complainant on account of his having developed amorous ties with his wife. He further confessed that with the aid of his brother Rasheed Ahmad, the dead body of Mushtaq Ahmad was taken Cana1,4L where the same was cut into pieces and buried. Rasheed Ahmad accused also told that Shaukat Ali accused was also with them. After completion of investigation, the police challaned all the three accused persons namely Saeedd Ahmad, Shaukat Ali and Rasheed Ahmad, where in the trial Court the petitioners Shaukat Ali and Rasheed Ahmad moved an application for their acquittal under section 265-K, Cr.P.C. And the learned Additional Sessions Judge, Bahawalpur vide his order/judgment, dated 23-1-2001 dismissed the same. The said judgment has been impugned through the instant criminal miscellaneous.
3. The learned . Counsel for the petitioners contended that both the petitioners are not nominated in the F.I.R. No motive is alleged against them. They have been involved in the case on the confessional statement of co-accused Seed Ahmad before the police, which is inadmissible in evidence. He further contended that Rasheed Ahmad petitioner had been arrested on 2-6-2000 and Shaukat All on 16-6-2000. Nothing incriminating Shaukat Ali petitioner with the commission of offence has been recovered from him. Only a Kassi, allegedly used for the burial of some parts of the dead body has been recovered which was found not stained with blood. The learned counsel further contended that no ocular, recovery and circumstantial evidence is available on the record against the petitioners and proceedings of the case would be an abuse of process of law. He lastly contended that there is no probability of the accused persons/petitioners being convicted of the above said offence.
4. Conversely, the arguments of the learned counsel for the petitioners have been vehemently opposed by the learned counsel for the complainant as well as the State contending that on the pointation of the petitioner Rasheed Ahmad 'a .Kassi. Had been recovered which was used in the burial of same parts of the dead body and he had made confessional statement before the police and his disclosure before the police is admissible. Relied upon cases of Muhammad Khalid Mukhtar v. State through Deputy Director F.I.A. (CBA), Lahore (PLD 1997 SC 275), Muhammad Alam alias Shin v. The State (2001 P.Cr.LJ 86) and Muhammad Yar alias Yari v. State (2001 MLD 807).
5. To the extent of Shaukat Ali petitioner, the learned counsel for the complainant frankly admitted that there is no evidence against him and he did not oppose the acceptance of this petition to his extent.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. It is admitted position that the petitioners are not nominated in the F.I.R. Originally the case was, registered under section 302, P.P.C. Against Saeed Ahmad co-accused only. From the perusal of the F.I.R. It reveals that there is no allegation of involvement of the petitioners in the commission of the murder of Mushtaq Ahmad deceased. The petitioners have been involved in the case on the statement of co-accused Saeed Ahmad while he was under-custody.
8. Article 39 of the Qanun-e-Shahadat Order, 1984 contemplated that subject to Article 10 no confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a 'Magistrate, shall be proved as against such person. Meaning thereby, the confession made by the co-accused in police custody is inadmissible and on such- like statement no accused can be convicted. Reliance in this context can be placed on the case of State v. Jamil Iqbal (PLD 1974 Quetta 28).
9. The only evidence against Rasheed Ahmad petitioner is that of recovery of Kassi' which was used in the commission of murder of the deceased Mushtaq Ahmad and it was not stained with blood.
According to the prosecution it had been used in the burial , of some parts of the dead body of the deceased. No witness has been cited by the prosecution to have seen the burial of the parts of the dead body by the petitioners. These parts of the dead body ' were recovered on the pointation of Saeed'. Ahmad co-accused and not on the information supplied by the present petitioner Rasheed Ahmad.
10. The trial of the case has commenced. Even if for the sake of arguments it is admitted that the recovery of 'Kassi' has been effected from the possession or on the pointation of Rasheed Ahmad, there is no evidence against him that he had participated in the commission of murder of Mushtaq Ahmad deceased or he aided Saeed Ahmad accused in any manner in the commission of the offence.
11. Charge under section 201, P.P.C. Has been framed against the petitioners and to prove this charge, the prosecution has to produce some evidence which has not been produced by the prosecution nor any witness has been cited in the Kalandra/list of witnesses alongwith the challan of the case.
12. The learned counsel for the complainant has relied upon the case of Muhammad Alan; alias, Shin v. The State (2001 PCr.L,J 86) (FSC), wherein it is held by the Federal Shariat Court that the information received from accused while in police custody, was not admissible. If, however, something related to the case was recovered or any fact was discovered in consequence of the information conveyed by the accused then the same would be admissible in evidence within the purview of Article 40 - of Qanun-e-Shahadat. The Honourable Court has further observed that the confession made by co-accused though relevant under Article 43 of the Qanun-eShahadat, 1984 alone cannot warrant conviction of an accused unless it is corroborated by any other reliable piece of evidence. Thus, the dictum laid down In this case also favours the petitioners.
13. Though the trial of the case has started and some. Evidence has been recorded whichever has been corrected by the prosecution that is against Saeed Ahmad co accused and no evidence has been cited or available against the present petitioners and there is no probability of their conviction in this case in any manner.
14. The learned counsel for the complainant has very frankly conceded that no evidence is available against Shaukat Ali petitioner.
15. In view of the above discussion, the impugned judgment, dated 23-1-2001 passed by Addition Sessions Judge, Bahawalpur dismissing the application of the petitioners under section 265-A, Cr.P.C. Is' not sustainable in law. Resultantly, this quashment petition is accepted and the impugned judgment, dated. 23-1-2001 passed by Additional Sessions Judge, Bahawalpur as well as the proceedings against the petitioners in consequence of the present F.I.R. Are quashed. The petition filed by the petitioners under section 265-K, Cr.P.C. Stands accepted.