' Shameer son of Pir Bakhsh through Criminal Appeal No,334 of 2001 and Ghulam Asghar son of Wahid Bakhsh through Criminal Appeal No,296 of 2001 have challenged the judgment dated 30-3- 2001 handed down by Mr. Zulfiqar Ali Saifi, Additional Sessions Judge, Rajanpur in case F.I.R. No,67 registered at Police Station Kot Mithan on 5-3-1998 for offences under sections 364/302/201/148/149, P . P. C . Whereby the appellants were convicted and sentenced in the following offences.
302(b), P.P.C.: Life imprisonment each. Compensation under section 544-A, Cr.P.C. Rs,1,00,000 each to be paid to Mst. Taslim Mai, complainant.
364, P.P.C. Imprisonment for life to each.
201, P.P.C. Three years R . I. Each.
2. As both the above mentioned appeals arise out of the same judgment, therefore, they are being decided by this single judgment.
3. The appellants were sent up to face the trial for the abduction and murder of Muhammad Rafiq son of Muhammad Siddique, husband of P.W.3 Mst. Taslim Mai alongwith Muhammad Zafar, Muhammad Yousaf and Ghulam Akhtar accused, Qaisar son of Wahid Bakhsh was also indicated as accused but he remained absconder and did not face the trial. Muhammad Zafar, Muhammad Yousaf and Ghulam Akbar accused were acquitted of the charges by the learned trial Court.
4. The law was set in motion by Mst. Taslim Mai P.W.3 who appeared before Ghulam Sarwar, S.I., P.W.8 on 5-3-1998 at 1-35 p.m.; when the latter was present alongwith the other police officials at Lari Adda, Kot Mithan. P.W.8, recorded the complaint Exh.P.A on the statement of Mst. Taslim Mai, P.W.3. Briefly, it was stated in the complaint that the complainant was married with Muhammad Rafiq deceased five years prior to the occurrence and three boys were born out of the wedlock.
Ghulam Asghar appellant borrowed about Rs,3.00,000 within a period of 1-1/2 to 2 years from Muhammad Rafiq. 2-1/2 years prior to the occurrence Muhammad Rafiq left the household articles of the value of Rs,1,50,000 with Ghulam Asghar appellant who lived at Rajanpur and left for Arifwala alongwith his family and remained there for six months. After six months his family ireturned to Rajanpur and from there settled at Murghai. It was further stated in Exh.P.A. That Muhammad Rafiq had been visiting the house of Ghulam Asghar for return of his money and household articles.
However, Ghulam Asghar had been postponing the payment of amount and return of articles upon one or the other pretext. 7/8 months prior to the occurrence Muhammad Rafiq summoned Ghulam Asghar at his place in Murghai, Ghulam Asghar along with Qaisar, Akbar, Shameer and Yousuf visited the house of Muhammad Rafiq and after some time Ghulam Asghar and others had a quarrel with Muhammad Rafiq and they left the house after issuing threats. On the next day Muhammad Rafiq left for Rajanpur after informing the complainant to settle the issues relating to money. As the husband of the complainant did not return for a whole one day on the next day the complainant alongwith Naib Muhammad went to the house of Ghulam Asghar and discovered that no one was present there and was further informed that Qaisar, Akbar, Zafar, Shameer and Yousaf had taken Muhammad Rafiq to some unkown place. During search,. At Chowk Allahbad, Ashfaq son of Siddique and Nawaz son of Aandal P.W.4 met the complainant and informed that they had seen Muhammad Rafiq accompanying all the afore-referred persons in a Dalla and they were going towards Jampur. It was further disclosed that Muhammad Rafiq had asked the P. Ws.
That they < should inform his family members that he was leaving for Jampur and since Rafiq did not return, therefore, the matter was reported to the police.
5. After completion of investigation the case was sent up for trial and as the accused denied the charge the trial commenced.
6. During the trial the prosecution examined 8 witnesses to support its case. P.W.3, complainant and P.W.4 Muhammad Nawaz stated about the evidence of last seen. P.W.5 and P.W.6 Abdul Majeed and Mehmood Ahmad furnished the evidence of extra judicial confession. P.W.7 Jamil, S.I, and Ghulam Sarwar, S.I. P.W.8 stated about the investigation of the case. The rest of the witnesses were formal in nature. The statements of the appellants were recorded under section 342, Cr.P.C.
They denied the allegations and stated that in fact Mst. Taslim, Mai complainant had developed illicit relationship with one Riaz Joiya and prior to the registration of case Shameer appellant had filed a writ petition against Mst. Taslim Mai, P.W.3 and Riaz Joiya for registration of a case against them and as a counter-blast they were involved in the case. The appellants did not appear as witnesses in their defence as contemplated by section 340(2), Cr.P.C. And did not produce any defence evidence.
7. The learned counsel for the appellants has argued that there is not an iota of evidence available against the appellants and that the learned trial Court has wrongly and unjustly convicted the appellants on the sole testimony of Mst. Taslim Mai, P.W.3. On the other hand, the learned counsel appearing on behalf of the. State tried to justify the conviction of the appellants in a lukewarm manner.
8. I have heard the learned counsel for the parties and have also gone through the entire evidence and the impugned judgment. It was an unwitnessed crime and the case of the prosecution was based on the evidence of motive, last-seen and extra judicial confession. The learned trial Court had disbelieved the evidence of the extra judicial confession against the appellants in para. 10 of the judgment. P.W.5 Abdul Majeed and P.W.6 Mehmood Ahmad appeared during the trial and stated about the extra judicial confession of the appellants. These P.Ws. Were rightly not believed by the learned trial Court. According to these P.Ws. All the accused (six of them) appeared before them on 7-6-1999 and made a confession. These P.Ws. Did not appear before the police till 9-6- 1999. The case was registered on 5-3-1998 and no circumstances existed to force the appellants and other accused to make confession before these P.Ws. During trial both the P.Ws. Attempted to improve their version and they were duly confronted with Exh.D.A., their statements recorded by the police under section 161, Cr.P.C. Even otherwise, this extra judicial confession was inadmissible in evidence as it was jointly made by six accused before the P.Ws.
9.Muhammad Nawaz appeared as P.W.4 and stated that the deceased was last seen in the company of six accused. His statement was also disbelieved by the learned trial Court vide para.9 of the judgment. This P.W. 'never reported the matter to police or to any one for long nine months.
During the trial it was brought on record that this P.W. Was 'Meerasi' by caste and was a menial servant of one Riaz Joiya who had allegedly developed illicit relations with Mst. Taslim Mai, P.W.3.
Even otherwise, this P.W. Had been the deceased in the company of the accused about nine months prior to the registration of the case, so it cannot be said with certainty that the deceased was last seen in the company of the accused as dead body was not recovered and the time of death of Muhammad Rafiq could not be ascertained. The learned trial Court has convicted the appellants on the sole testimony of Mst. Taslim Mai, P.W.3 who is wife of deceased Muhammad Rafiq, sister of Ghulam Asghar appellant and cousin of Shameer appellant. During her statement before the learned trial Court Mst. Taslim Mai tried to improve her case on almost all aspects and resultantly was confronted with her statement Exh.P.A. On all points she tried to improve. No transaction about Rs,3,00,000 could be proved during. The trial. Ghulam Asghar appellant earned his living by selling milk and did no other business. There was no occasion for the deceased to lend him money. There was also no reasons as to why all other relative should join Ghulam Asghar as against the deceased who was their brother-in-law. The evidence of motive could not be satisfactory proved during the trial. Mst. Taslim Mai, P.W.3 had to admit that Shameer appellant in fact had moved an application before the police and filed a writ petition (W.P.No,8923 of 1997 before this Court) Exh.D.C. Wherein it was stated that Mst. Taslim Mai had developed illicit relations with Raiz Hussain Joiya and Mst. Taslim Mai and Riaz Hussain Joiya had murdered Muhammad Rafiq in order to continue their love affair. P.W.7, Jamil, S.I and Ghulam Sarwar, S.I., P.W.8 had admitted that such an application was moved. P.W.3 also admitted that she was summoned at the police station in lieu of this application. In these circumstances, the sole testimony of Mst. Taslim Mai who was not an eye-witness of the occurrence could not be made basis for the conviction of the appellants. On the same evidence the learned trial Court acquitted three co-accused but convicted the appellants. No independent corroboration vis-a-vis the appellants was available on record of the case. In such circumstances no sifting could be made. The learned trial Court has failed to give any cogent reasons as to why he believed the statement of P.W.3 qua the appellants while the same was disbelieved qua the acquitted accused. It was held in the case Zulfiqar Ahmad v. The State (PLD 1986 SC 477). "Where testimony of eye-witness has been disbelieved with regard to some of the accused, such testimony can be used against remaining accused only when some independent corroboratory evidence is available on record to-support their testimony qua those accused". The apex Court in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) has held that "where it was found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to other accused in same transaction but if testimony of such witness was corroborated by strong and independent circumstances regarding each one of other accused, reliance might then be placed on such witness for convicting other accused.
In the instant case not only that no other independent corroboratory evidence is available against the appellants but on the other hand. P.Ws.7 and 8 admitted during trial that the appellants were found innocent. It was further admitted that D.S.P., C.I.A. And D.S.P. Ch. Muhammad Akram also found the appellants to be innocent. P.W.8, Ghulam Sarwar, S.I. Also stated that the story of the deceased going to the house of Ghulam Asghar could not be supported by any evidence during his investigation.
' The upshot of the whole discussion is that the prosecution has miserably failed to prove the case against the appellants. I, therefore, allow these appeals, set aside the impugned judgment dated 30-3-2001 passed by the learned trial Court and acquit the appellants of all the charges. They would be released forthwith if not required in any other case.