1. ' MUHAMMAD NAWAZ ABBASI, J.---The appellant namely Sajawal son of Madad alongwith Waris son of Said Ahmad, Muhammad Akram son of Fazal Ellahi and .Azhar son of Muhammad Aslam were - sent up to tace the trial for charge of committing Qatl-e-Amd of Nazakat Ali in a case registered against them under sections 302/201/34, P.P.C. At Police Station Wah Cantt. The learned Additional Sessions Judge, who tried the accused having found the appellant namely Sajawal son of Madad guilty of the charge awarded him sentence of imprisonment for life under section 302 (b), P.P.C. As Tazir vide judgment dated 23-2-1995 and in addition thereto also directed the appellant to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in case of default in the payment of compensation, the amount of compensation was ordered to be recovered as arrears of land revenue. However, the co-accused of the appellant namely Waris, Muhammad Akram and Azhar were acquitted of the charges.
2. ' The appellant through 'Criminal Appeals No,59 and 203 of 1995 has challenged his conviction and sentence, whereas Muhammad Zaman complainant of the case has filed Criminal Appeal No,55 of 1995 against the acquittal of Waris, Muhammad Akram and Azhar. The complainant also filed Criminal Revision No,36 of 1995 for enhancement of sentence awarded to Sajawal accused by the learned trial Judge. This judgment proposes to dispose of all the above mentioned matters.
3. ' The brief facts of the prosecution case as contained in the statement Exh.P.0 of Muhammad Zaman (P.W.3) on the basis of which a case vide F.I.R. Exh.P.C/1 was registered at Police Station Wah Cantt. Recorded by Muhammad Farooq Assistant Sub-Inspector/Moharrar of the Police Station are that the complainant is agriculturalist by profession and he has four sons and elder son namely Nazakat Ali, deceased of the case was associated with him in cultivation of land. The complainant had cultivated maize crop in the fields of Malik Azam. On 13-9-1993, Nazakat Ali his son went to the fields for cutting fodder for cattle, but did not turn up, where upon the complainant along with his relatives made search of his son but he was not traceable. On 16-9-1993 Godar son of Mian Khan a co-villager told the complainant that on 13-9-1993 at about 11-00 a.m, he had seen his son Nazakat Ali in the company of Sajawal accused while they were proceeding towards Bhura of Sajawal in the land .Owned by Munir Khan resident of Jalala. On this information, the complainant in the company of his brother Sultan and nephew Rukan Zaman reached at Bhura of Sajawal accused and traced the dead body of his son Nazakat Ali buried in the Bhura of Sajawal. The deceased had sustained injuries on his head, back of neck and left flank. The hands of the deceased were found tied with a cord. The complainant suspected that his son (Nazakat Ali, deceased) was done to death by Sajawal with the help of Waris son of Said Muhammad and Azhar son of Muhammad Aslam his co- villagers. The motive behind the occurrence as stated by the complainant was that about a month prior to the occurrence, the deceased picked up a quarre1 with Sajawal accused and later the matter was patched up by elders of Baradari but the accused having not tolerated nursed grudge against the deceased and with the help of his co-accused committed Qatl-e-Amd of Nazakat Ali and buried his dead body in his Bhura. Umar Hayat Sub-Inspector having recorded the statement (Exh.P.C) of the complainant sent the same to the police station, on the basis of which formal F.I.R.
4. Exh.P.0/1 was recorded.
5. ' Umar Hayat, Sub-Inspector (P.W.12) alongwith Muhammad Akram, L.H.C., Muhammad Ashraf and Saif Ullah Constables while reaching at the spot recovered the dead body of Na.:akat Ali deceased from the Bhura of Sajawal accused,' and prepared inquest report Exh.P.H of the deceased and despatched the dead body to the mortuary in the escort of Saif Ullah, Constable for post-mortem examination. During the spot inspection, the Sub Inspector secured Spade P.1, Bhola P.2 vide recovery memo. Exh.P.D. On 17-9-1993, he having recorded supplementary statement of complainant took into possession the last worn-clothes of the deceased Shalwar P.8, Shirt P.9, Saluka P.10 and three pieces of Rope P.11/1-3 vide recovery memo. Exh.P.K. On 18-10-1993, he arrested Sajawal, Waris and Muhammad Akram accused. On 22-10-1993 he recovered hatchet from Sajawal accused and took it into possession vide recovery memo. Exh.P.E. Similarly he recovered Chaddar P.6, Chappal P.4/1-2 and Dranti P.5 from Waris accused and Chhuri P.7 from Muhammad Akram accused and took the same into possession vide recovery memos. Exh.P.F and Exh.P.G respectively.
6. The Investigating Officer having got prepared site plans Exh . P.E/1, Exh. P. F/1 and Exh.P.G/1 and completed the investigation submitted the Challan.
7. ' Dr. Shahzad Wasim, Demonstrator, Medical College , Rawalpindi (P. W.1), conducted the post- mortem examination on the dead body of Nazakat Ali on 17-9-1993 at 11-00 a.m and found the following injuries on his person:-
(1) A contused wound 4 c.m. x 2 c.m. On, left upper zone of head with fractured frontal and perietal bone.
(2) An incised wound 5 c.m. Long 1 c.m. Deep on left lumber region.
(3) An incised wound 6 c.m. Long 1 c.m. Deep on lateral side on left of abdomen at lower zone directed before backward and oblique.
(4) An incised wound 5 c.m. Long on back and right side of neck 1 c.m. Deep.
8. ' In his opinion cause of death was shock and haemorrhage due to injury No,I which was sufficient to cause death in ordinary course of nature. Injury was antimortem and cial blunt. Rest of the injuries were caused by heavy sharp-edged weapon.
9. ' The prosecution in support of the charge in addition to the Doctor and the Investigating Officer produced the following witnessed- ' P.W.2 Muhammad Akbar Patwari prepared the site plans in triplicate Exh.P.B/1-3 on the pointation of witnesses and on the direction of Investigating Officer.
10. ' P.W.4 Nawab identified the dead body of Nazakat deceased at Civil Hospital Taxila.
11. ' P.W.5 Muhammad Farooq Assistant Sub Inspector/Moharrar on receipt of complainant Exh.P.0 recorded the formal F.I.R. Exh.P.C/1.
12. ' P,W.6 Abdur Rehman Constable having collected the parcels containing blood-stained hatchet and blood-stained earth delivered the same in the office of the Chemical Examiner at Lahore.
13. ' P.W.7 Sultan is witness of recovery of spade P.1 and Bhola P.2 from the place of occurrence vide recovery memo. Exu.P.D.
14. ' P.W.8 Godar Khan had seen the deceased Nazakat going alongwith the accused Sajawal towards his Dhoke.
15. ' P.W.9 Farman Ali is witness of recovery of Hatchet P.3 from Sajawal accused, Chappal P.4/1-2, Sickle P.5 Chaddar P.6 from Waris accused, blood-stained Chhuri P.7 from Muhammad Akram accused secured vide recovery memos. Exh.P.E, Exh.P.F and Exh.P.G respectively.
16. ' P.W.10 Muhammad Shafi stated that in his presence, the accused Sajawal made extrajudicial confession before Waheed Rehman.
17. ' P.W.11 Rehman is a witness of extra- judicial confession made by Sajawal accused before him and sought his help.
18. ' P.W.13 Saif Ullah Constable escorted the dead body of Nazakat Ali deceased entrusted to him by Mehr Umar Hayat Sub-Inspector, to the mortuary and after postmortem he delivered the last worn- clothes Shalwar P.8, blood-stained Qameez P.9, Saluka P.10 and pieces of Rope to Investigating Officer, who secured the same vide recovery memo. Exh.P.K.
19. ' P.W.14 Naeem Shah kept the sealed parcels containing Hatchet, Chhuri, Chaddar, a pair of Chappals and a Sickle in Mal Khana and on 31-10-1992, he handed over the said parcels to Abdul Rehman Constable for delivery in the office of Chemical Examiner at Lahore.
20. ' The accused in their statements under section 342, Cr.P.C. Having denied the charge made reply to the question that why this case against you and why the P.Ws. Deposed against you? In the following manner: - "P.Ws. Are related inter se as well as with deceased. We have been implicated out of false suspicion ant: party-faction in the village."
21. ' The learned counsel for the appellant in Criminal Appeal No,59 of 1995 and 203 of 1995 and respondents in Criminal Appeal No,55 of 1995 contended that it was a blind murder and a case of circumstantial evidence of motive, last seen, extra-judicial .Confession and recoveries of weapon of offence. The learned trial Judge having disbelieved the evidence of motive and extra-judicial confession, while placing reliance on the evidence of last seen and recovery of dead body and blood-stained hatchet held Sajawal accused guilty of the charge, whereas acquitted the remaining accused, who were respondents in Criminal Appeal No,55 of 1995 giving them benefit of doubt. The learned counsel has contended that it. Is in the evidence that the deceased left the house on 13-9-1993 and dead body was recovered on 16-9-1993 and that in the intervening period, the relatives of deceased including Godar Khan, who is witness of last seen have remained busy in searching the deceased and Godar Khan for the first time after recovery of dead body disclosed that he had seen the deceased on 13-9-1993 in the company of Sajawal accused. The learned counsel argued that last seen evidence in the given circumstances was of no evidentiary value.
22. The learned counsel next argued that it is in the evidence that the occurrence took place in Khasra No,1678, which was admittedly not owned and possessed by Sajawal accused and, therefore, the recovery of dead body from Bhora situated in the above Khasra would not be used against the appellant as evidence and similarly the recovery of blood-stained hatchet from the said Bhura after a period of more than one month at the instance of the appellant would be of no use to the prosecution. The learned counsel also argued that Muhammad Zaman complainant of the case has not said a single word in his statement about the motive given in the F.I.R. Rather as per his statement the deceased had no enmity with any of the accused, therefore, it was a motiveless occurrence. The learned counsel while criticizing the evidence of extrajudicial confession contended that according to the prosecution, the accused were arrested at noon on 18-10-1993, whereas as per evidence of the witnesses the accused approached them together in the evening on 17-10-11993 and confessed their guilt and thus, the extra-judicial confession was of no value and consequence. The learned counsel while arguing case on behalf of respondents in Criminal Appeal No,55 of 1999 contended that with the exclusion of evidence of extra-judicial confession, there was no evidence to connect any of the respondents with the commission of offence. The learned counsel concluded that the prosecution has not been able to prove the charge against any of the accused including Sajawal convict beyond reasonable doubt.
23. ' The learned counsel representing the appellant in Criminal Appeal No,55 of 1995 and petitioner in Criminal Revision No,36 of 1995 contended that there was direct evidence in support of the fact that Bhura from where, the dead body was recovered belong to Sajawal appellant, and the appellant failed to explain the circumstances, under which, the dead body was buried in his Bhura, therefore, there would be a strong presumption of committing murder by Sajawal appellant. It was argued by the learned counsel that Godar Khan (P.W.5) having no enmity against Sajawal appellant was not supposed to make a false statement and therefore, the evidence of lastly seen, the deceased with Sajawal appellant on 11:9-1993 would not be excluded from consideration for mere reason that he only disclosed this fact after recovery of dead body. The learned counsel submitted that an innocent omission on the part of the witness would not discredit his testimony. The learned counsel next argued that un-doubtedly the complainant of the case in his statement at the trial has not mentioned anything about the motive given in the F.I.R. Yet it was not a motiveless occurrence and the omission on the part of complainant would not adversely affect the prosecution case either for the purpose of acquittal or lesser punishment.. The learned counsel submitted that the witness of extrajudicial confession despite being related to the deceased were independent as they were neither inimical to the accused nor had any motive to implicate them in a false case. It was argued by the learned counsel that the evidence of extra-judicial confession would show that there was strong motive with Sajawal and his co-accused to commit the crime as it was brought in the evidence of extra-judicial confession that .The deceased was seen in objectionable position with Mst. Taj Bibi wife of Sajawal. The learned counsel further argued that the recovery of blood-stained hatchet from Sajawal from his Bhura and blood-stained Chhuri from Muhammad Akram at his instance from his 'Miura would be a strong incriminating evidence in proof of their guilt. The learned counsel contended that sickle and chappal of the deceased was recovered at the instance of Waris accused which would provide a strong corroboration to the extra judicial confession and, therefore, the acquittal of respondents in Criminal Appeal No,55 of 1995 was not proper. Lastly, the learned counsel with reference to the case law contended that weakness of motive or the motive set up even if is not proved would not be a ground to withheld and nominal sentence of death on murder charge. The learned State counsel while adopting the .Rguments of learned counsel for the complainant has supported the dismissal of appeal of Sajawal with enhancement of his sentence from life to death and also prayed for the acceptance of appeal against acquittal.
24. ' We have heard the learned counsel for the .Parties at length and gone through the evidence with their assistance. It is a blind murder and the prosecution in support of the charge produced circumstantial evidence in the form of last seen, the motive, the extra-judicial confession and the recovery of weapon of offence and articles belonging to the deceased at the instance of the accused. The perusal of the medical evidence would show that the deceased was caused confused and incised wound, which undoubtedly were caused with, blunt and sharp-edged weapon. The deceased left for grazing cattle in the field at 9-30 in the morning on 13-9-1993 and remained missing till 16-9-1993 when his dead body was found lying in the Bhura stated to be owned by Sajawal appellant. It is in the evidence of Muhammad Zaman complainant of the case that he along with his relatives remained searching his son till the recovery of dead body and that Godar Khan was also associated in the search, whereas Godar Khan denied that he remained associated with the complainant during the search of his son but he conceded that the deceased being not traceable his father and relatives were busy in his search. It can safely be said that if Godar Khan was not associated in the search of the .Ceased, at least he had knowledge that the deceased was missing and he was being searched but still he did not disclose that the deceased was seen by him lastly in the company of the accused Sajawal. This silence on the part of Godar Khan till the recovery of dead body would make his statement highly doubtful and consequently the last seen evidence furnished by him would loose its credibility, and would not be reliable piece of evidence. The evidence of extra-judicial confession was not believed by learned trial Judge, in addition to the reason given by learned trial Judge, this piece of evidence would be of no evidentiary, value for being made jointly by the accused before the witnesses. It is not understandable that why the accused, who were suspected as culprits in the F.I.R. In a blind murder, in the absence of any direct evidence, would confess their guilt jointly before the witnesses in a blind murder. This is noticeable that as per claim of the witnesses, the accused confessed their guilt in the evening of 18-10-1993, whereas as per statement of Investigating Officer, he arrested the accused afternoon on the said date. It appears that the accused made extra-judicial confession when they were in custody, which is further supported by the fact that the complainant in his statement has admitted that the accused were taken into custody by Station House Officer of the concerned Police Station on 17-9-1993 i,e, one day after the recovery of dead body. The possibility that the police kept the accused in its custody without showing formal arrest and on the day of their formal arrest recorded the evidence of extrajudicial confession, therefore, the same would not be free from doubt and was rightly excluded from consideration by the learned trial Judge. The complainant having shown suspicion against Sajawal and his co-accused in the F.I.R. Also given motive for murder of his son but it would be noticeable that the complainant in his statement at trial has not said a single word regarding the motive, rather stated that the accused had no enmity with the deceased. Therefore, the motive part of the procution story given in the F.I.R. Would stand excluded from consideration for all practical purposes and it would be deemed that it was a motiveless occurrence. The blood-stained Hatchet allegedly used by Sajawal as weapon of offence, was recovered from the Bhura from where the dead body was recovered but it is not understandable that why at the time, of recovery of dead body, the blood-stained Hatchet was not recovered and taken into possession and why the recovery of bloodstained Hatchet delayed till the arrest of Sajawal accused.
25. ' We having scrutinized the evidence in detail have not been able to find out any material to show that the Bhura from where the dead body and blood-stained Hatchet was recovered was either owned or possessed by Sajawal accused. The copy of Khasra Gardawari made part of the record would show that Khasra No,1678 was owned by Mst. Ghulab Jan and others and was in possession of Aslam son of Saida. There is no evidence on record to establish that Bhura in existence in land of Khasra No,1678 was in the use of Sajawal accused. There being no evidence of ownership and possession of Sajawal on Khasra number in question, the recovery of dead body and subsequently blood-stained Hatchet from said Bhura would not prove beyond doubt to be in the knowledge and possession of Sajawal. The different pieces of circumstantial evidence produced by prosecution in support of the charge were neither confidence-inspiring nor link the accused. With the crime. It is admitted that the dead body was not recovered at the instance of Sajawal or his co-accused and it was found lying in Bhura situated in land, which was not owned and possessed by any of the .Accused. The evidence of last seen and extra-judicial confession being not confidence-inspiring would not be reliable and similarly the recovery of blood-stained Hatchet from Sajawal and Chhuri from Muhammad Akram and articles belonging to the deceased from Waris would be of no use to the prosecution in the absence of any other direct or circumstantial evidence against the accused.
26. For the foregoing reasons, we find that the prosecution has not been able to establish the charge against Sajawal accused and, therefore, we while extending the benefit of doubt acquit him from the charge and direct his immediate release from jail, if not required in any other criminal case. The Criminal Appeal No,59 and Criminal Appeal No,203 of 1995 are allowed. For the same reasons Criminal Appeal No,55 of 1995 against the acquittal of co-accused of Sajawal and Criminal Revision No,36 of 1995 for enhancement of sentence of Sajawal are dismissed.