' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,504 of 1998 filed by Khalid Masih, appellant and Criminal Appeal No,512 of 1995 filed by Mushtaq Ahmad appellant who were convicted and sentenced by learned Additional Sessions Judge, Sheikhupura vide judgment dated 25-5-1998 as under:-- ' Death under section 302-A/34, P.P.C. And Imprisonment for life under section 365/34, P.P.C.
Murder Reference No,356 of 1998 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this had taken place on 14-12-1994 at a distance of one Kilometre from Police Station City Farooqabad, District Sheikhupura while the matter was reported to the Police through written complaint Exh.P.O. By Abdul Hameed on 23-12-1994 and Formal F.I.R. Exh.P.O./1 was recorded by Khalid Mahmood, Head Constable.
3. Briefly stated the facts of the case are that Abdul Sattar son of the complainant was working as a sales man in the shop of Haji Abdul Sattar. On 14-12-1994, Abdul Sattar was coming back to his house on cycle and when he passed through the bridge of a canal, Khalid Masih and Mushtaq called him. Abdul Sattar in response to the call went towards Khalid Masih and Mushtaq. The complainant waited for his son till 9/10 p.m. But he did not turn up. A search was made but in vain.
It was further alleged that Muhammad Yousaf and Muhammad Anwar had seen Abdul Sattar, son of the complainant in the company of Khalid Masih and Musthaq. The complainant suspected that Khalid and Mushtaq had abducted Abdul Sattar.
4. Investigation of the case was taken over by Muhammad Nawaz, A.S.-I. (P.W.17). He after registration of the formal F.I.R. Went to the place of occurrence, prepared rough site plan Exh.P.Q., on 28-1-1995 took into possession the dead body of Abdul Sattar from the bank of Upper Gogera Canal, prepared inquest report Exh.P.M., also prepared injury statement Exh.P.N. And took into possession last worn clothes of the deceased vide memo. Exh.P.A. Both Khalid Masih and Mushtaq accused were arrested on 13-12-1995. While in custody on 18-2-1995 Khalid Masih led to the recovery of Churri P.3 which was taken into possession vide memo. Exh.P.B. On the same day, Mushtaq also got recovered Churri P.4 which was secured vide memo. Exh.P.C. Khalid Masih also got recovered blood-stained clothes of the deceased which were taken into possession vide memo. Exh.P.D. Mushtaq also led to the recovery of blood-stained clothes which were secured vide memo. Exh.P.R. After completions of the remaining formal _investigation, both the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 18 witnesses in all. Then the learned ADA tendered in evidence report of the Chemical Examiner Exh.P.S. And closed the prosecution case. After that, statements of the accused were recorded under 342, Cr.P.C., in which they pleaded false implication. However, after conclusion of the trial, the accused were convicted and sentenced as stated above.
6. Learned counsel for appellant Khalid Masih after having read the entire prosecution evidence and other material available on record submits that it was an unwitnessed occurrence, nobody was named in the F.I.R., there is no evidence of last seen, the extra-judicial confession is joint one which is inadmissible in evidence, the dead body was not identifiable, the recovery of the Churri and blood-stained clothes is of no avail in the absence of report of the Serologist, Muhammad Anwar the witness of last seen was declared hostile, Muhammad Yousaf the witness of last seen did not utter a single word about having last seen the deceased in the company of the accused/appellants, the statement of Muhammad Akram P.W. Was recorded on 28-1-1995 after recovery of the dead body of the deceased and that in fact the prosecution has miserably failed to prove its case.
' Learned counsel for Khalid Masih appellant adopts the arguments advanced by Muhammad Akram Nagra, Advocate.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that there was no reason on the part of the P. Ws. To falsely implicate the appellants, there is evidence of last seen in the shape of statements of Muhammad Anwar and Muhammad Akram, both the P.Ws. Has seen the deceased in the company of appellants, there is also evidence of extra-judicial confession having come from the mouth of Muhammad Tufail, it is a case of circumstantial evidence and all the chains are inter-linked and in fact the prosecution has been successful in proving its case against the appellants.
8. We have heard learned counsel for the appellants and have gone through the record with their able assistance. In the instant case, the occurrence had taken place on 14-12-1994 while the matter was reported to the Police on 24-12-1994 through a written complaint. Nobody had seen the present appellants committing murder of the deceased. The evidence of last seen was furnished by Muhammad Yousaf P.W.6, real brother of the deceased, Anwar P.W.12 and Muhammad Akram P.W.9.So far as Muhammad Yousaf (P.W.6) is concerned, he did not state even a single word about having last seen the deceased in the company of the appellants though in the complaint Exh.P.O., it was stated that Muhammad Yousaf alongwith Muhammad Anwar had seen the deceased in the company of the appellants, but this witness was declared as hostile. Muhammad Akram P.W.9 did not state the date when he had seen the deceased in the company of the appellants. His statement A Exh.D.E. (page 122 of the paper book) was recorded on 28-1-1995 when the dead body was recovered. He kept mum from 14-12-1994 till 28-1-1995. Moreover, he was not mentioned as a witness in the F.I.R. Having seen the deceased in the company of the appellants though the prosecution claims him to be star witness. This witness was having a shop of cloths in Delhi Gate, Lahore which was at a distance of 50 miles from the place of occurrence. The shops in Lahore normally open at 9/10 a.m. And close at 8/9 p.m. When the P.W. Had allegedly seen the deceased in the company of the appellants at 5-30 p.m. Which is not plausible so the presence of the witness at the place of allegedly last having seen the deceased in the company of appellants is against ordinary course of working hours:' Muhammad Anwar P.W.12 was declared hostile. He had stated before the trial Court that Muhammad Yousaf P.W. Had told him that he had seen the deceased in the company of appellants.
' The dead body was not recovered on the pointation of the appellants rather the dead body was not identifiable. The only mark of identification of the dead body was blood-stained clothes which the deceased was wearing at the time of occurrence. The clothes of the deceased had a sticker of tailor. The said tailor was produced as P.W.2. He stated before the trial Court that he did not know as to whose dead body it was. There being no report of the Serologist, recovery of bloodstained clothes loses its significance.
' Even the prosecution tried to improve the motive before the trial Court though no motive whatsoever was alleged in the ' According to statement of Muhammad Tufail P.W.15, the extra judicial confession was joint.
' There being no motive, extra-judicial conclusion being joint one, statements of the witnesses of last seen being not of any credence, recovery of blood-stained clothes and knives having no nexus in the absence of report of the Serologist, the dead body of the deceased being unidentified, therefore, there being no question of ocular account corroborated by medical evidence, it can safely be held that the prosecution has failed to prove its case against the appellants rather there are doubts and doubts in the prosecution story, the benefit of which has to be given to the accused not as a matter of grace but as a matter of right. Resultantly, both the appeals filed by convict Khalid Masih and Mushtaq Ahmad are accepted. Conviction and sentence recorded against them by the trial Court is set aside and they are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other case. The death sentence of both the appellants is not confirmed. Murder Reference is repliedin the negative.