ASIF SAEED KHAN KHOSA, J.---Muhammad Gulzar and Muhammad Naeem appellants were convicted for an offence under sections 302(b)!34, P.P.C. Vide judgment dated 18-2-2002 rendered by the learned Judge. Anti-Terrorism Court, Faisalabad and were sentenced to death each and to pay a sum of Rs,1,00,000 each to the heirs of Sabir Hussain deceased by way of compensation under section 544-A, Cr.P.C. The appellants were also convicted for an offence under sections 392/34, P.P.C. And were sentenced to rigorous imprisonment for ten years each and a tine of Rs,50,000 each or in default of payment thereof to undergo rigorous imprisonment for two and a half years each. They were further convicted for an offence under section 411, P.P.C. And were sentenced to rigorous imprisonment for three years each and a tine of Rs,20,000 each or in default of payment thereof to undergo rigorous imprisonment for nine months each. The learned trial Court had also convicted the appellants for an offence under section 7 of the Anti-Terrorism Act, 1997 and for the said offence the appellants were sentenced to death each and to pay a tine of Rs,1,00,000 each or in default of payment thereof to undergo rigorous imprisonment for ten years each. The sentences of imprisonment passed against the appellants by the learned trial Court were ordered to run. Concurrently and the benefit under section 382-B. Cr.P.C. Was extended to the appellants. The appellants have challenged their convictions and sentences before this Court through the present appeal which has been heard by us alongwith Murder Reference No,43-T of 2002 seeking confirmation of the appellants' sentences of death. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Ghulam Hussain complainant and his son namely Sabir Hussain used to live in village Qaim Bharwana situated in the area of Police Station Shorkot, District Jhang and the said son of the complainant used to ply a car belonging to Muhammad Sultan Ahmad P.W. As a taxi operating from Adda Qaim Bharwana. In the evening of 19-12-2000 the complainant and his brother Iqbal Hussain went to see Sabir Hussain at the said taxi stand whereat the owner of the said car namely Muhammad Sultan Ahmad P.W. Was already present with Sabir Hussain. In the presence of the complainant, lqbal Hussain and Muhammad Sultan Ahmad P.W. The present appellants, who were quite well-known to the complainant party, came to the said taxi stand and hireci the car driven by Sabir Hussain for going to Village Dara Wasaya, after settling the fare at Rs,600 and then they left on the said car with Sabir Hussain. Sabir Hussain did not return home during that night and on the next morning the complainant and his brother namely lqbal Hussain went to the house of Muhammad Sultan Ahmad P.W. To inquire about Sabir Hussain who also confirmed that Sabir Hussain had not returned with the car by then.
Thereafter the three of them kept on looking for Sabir Hussain but could not find him anywhere. On 21-12-2000 the dead body of Sabir Hussain was found in a sugarcane field and the matter was then reported to the police by the complainant through F.I.R No,800 registered at Police Station Shorkot.
District Jhang at 8-15 a.m. On 21-12-2000 for offences under sections 392/302/34, P.P.C.
3. Muhammad Naseeb, Inspector (P.W.11) recorded the above-mentioned F.I.R. And then proceeded to the place where the dead body of Sabir Hussain deceased was lying. He inspected the dead body, prepared an injury statement and an inquest report in that regard and dispatched the dead body to the mortuary for autopsy. He also inspected the place where the dead body was found, prepared a rough site-plan of the same and recorded the statements of the witnesses thereat.
4. Post-mortem examination of the dead body of Sabir Hussain was conducted by Dr. Zafar lqbal (P.W.8) at 3-00 p.m. On 21-12-2000. The doctor had found nine injuries on the dead body out of which injuries Nos. i-A and 1-B were ligature marks and injuries Nos.7 and 8 were abrasions which were all ante-mortem and the remaining injuries were postmortem. In the opinion of the doctor the death was caused due to asphyxia resulting from injury No,1 which was sufficient to cause death in the ordinary course of nature. Injury No,1 was stated to have been caused by ligature whereas the remaining injuries were opined by the doctor to have been caused by blunt object like teeth of animals. The probable time elapsing between the injury and death was observed by the doctor to be within a few minutes and that between the death and post-mortem examination to he within 48 hours.
5. After post-mortem examination of the dead body of Sabir Hussain deceased Muhammad Naseeb, Inspector (P.W.11), the Investigating Officer, received the last-worn clothes of the deceased.
He also recorded the statements of witnesses and then got a formal site-plan of the place of occurrence prepared by a Patwari. Later on he arrested the appellants on different dates and affected various recoveries at their instance including the stolen car. National Identity Card of the deceased, Registration Book of the said car and a blood-stained Chadar ("Lokar" ) belonging to the deceased. Thereafter, he completed the other formalities. Finalized the investigation and submitted a Challan in that regard.
6. At the commencement of the trial the learned trial Court framed a ..Charge against the appellants with six heads under sections 365-A, 302/34, 392/34. 412, P. P. C and section 7 of the Anti-Terrorism Act, 1997 to which the appellants pleaded not guilty and claimed a trial.
7: During the trial the prosecution produced eleven witnesses in support of its case against the appellants. Ghulam Hussain complainant (P.W.1) and Muhammad Sultan Ahmad (P.W.2) provided the last-seen evidence. Muhammad Sultan Ahmad (P.W.2), Faazil (P.W.4) and Haq Nawaz 1P.W.5) deposed about various recoveries effected in this case at the instance of the appellants. Dr. Zafar lqbal (P.W.8) furnished the medical evidence. Muhammad Naseeb, Inspector (P.W.11) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegation of fact leveled against them by the prosecution and professed their innocence.
They had maintained in their statements that Sabir Hussain deceased did not enjoy good moral character and that he had been done to death by somebody in unknown circumstances and also that they had been falsely implicated in this case and had been made scapegoats. However, the appellants neither opted to make any statement on oath under section 340(2). Cr.P.C. Nor did they produce any witness in their defence.
9.. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and. Thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference this Court.
10. We have heard the learned counsel for the parties and have .Gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, the learned trial Court was not justified in recording their convictions. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court do not warrant any 'interference by this Court.
11. After hearing the learned counsel for the parties and going through the record we have noticed that Sabir Hussain deceased had disappeared on 19-12-2000 and his dead body was subsequently found in a sugarcane field on 21-12-2000 and during the intervening two days his disappearance had not been reported to the police by anybody till the recovery of his dead body. We have further noticed that admittedly the murder alleged in this case had remained unwitnessed and the prosecution had failed to fix any date, time or place of the said murder. The dead body of Sabir Hussain deceased was covered from a sugarcane field which was neither owned nor possessed by the appellants and the said recovery had not been effected at pointing out of the appellants.
Nobody had appeared before the police or before the learned trial Collect to maintain that he had seen the appellants throwing the dead body at the place from where it was recovered. In the absence of any direct evidence incriminating the appellants the prosecution had relied only upon the last-seen evidence, the recoveries and the medical evidence to establish the charge against the appellants but we have found each one of these pieces of evidence to he utterly unreliable to establish the alleged guilt of the appellants.
12. The last-seen evidence was provided in this case by Ghulam Hussain complainant (P.W.1) and Muhammad Sultan Ahmad (P.W.2). Ghulam Hussain complainant (P.W.1) is the father of Sabir Hussain deceased and it was per chance that he had allegedly visited the relevant taxi stand at a time when the appellants had statedly taken Sabir Hussain deceased with them after hiring the taxicar driven by the deceased. The complainant had mentioned no reason in the F.I.R. For his visit to that taxi stand at the relevant time and had tried to improve the prosecution's case before the learned trial Court by advancing an explanation in that regard which too had not only remained from being established through any independent evidence but the same has also been found by us to be untrue. According to the said explanation advanced by him before the learned trial Court this witness had gone to see his son Sabir Hussain deceased in the evening of 19-12-2000 after the deceased had failed to come back home for the purpose of breaking his fast ("Aftari"). That explanation, however, ran contrary to the medical evidence provided by 'Dr. Zafar lqbal (P.W.8) according to which Sabir Hussain deceased could be said to have died at about 3-00 p.m. On 19- 12-2000. The learned counsel for the State could not rebut the fact that by 3-00 p.m. Aftari time had not set in and, thus, there was hardly any occasion for the deceased to have not returned home for Aftari and then for the complainant to go looking for him at the taxi stand. In these circumstances we have found the said explanation of the complainant to be nothing but an afterthought which was far removed from the reality. Even Muhammad Sultan Ahmad (P.W.2) was a chance witness of the alleged taking away of the deceased by the appellants and his explanation for his presence at the taxi stand at the relevant time had also not been substantiated through any independent evidence. This witness had maintained before the learned trial Court that he had gone to the Police Station alongwith the complainant for the purpose of getting an F.I.R. Registered and had also maintained that he had accompanied the police to the place of recovery of the dead body but he had admitted that he had not informed the police either at the police station or while proceeding to the place of recovery of the dead body that he had also seen Sabir Hussain deceased leaving with the appellants at the taxi stand on 19-12-2000. Such a conduct of this witness was nothing but unnatural as well as unusual. In these circumstances the last-seen evidence provided by this witness has also been found by us to be utterly unreliable. For all these reasons the last-seen evidence produced by the prosecution has failed to inspire our confidence.
13. The evidence produced by the prosecution regarding various recoveries allegedly effected at the instance of the appellants during the investigation of this case has also been four by us to be nothing but sham. The alleged recovery of the car driven by Sabir Hussain deceased had, according to the prosecution's own showing, come about upon a joint disclosure and pointing out of the appellants and such a joint recovery, it is settled law, is of little evidentiary value. Apart from that the said recovery had been witnessed by Muhammad Sultan Ahmad (P.W.2) who lived about a hundred miles away from the place of such recovery and no person from the locality in question had been associated with that recovery despite availability, As if this was not enough to discard the said recovery out of consideration Muhammad Sultan Ahmad (P.W.2) had admitted before the learned trial Court that the police had not recorded any statement of his in respect of that recovery! Moreover, the alleged recovery had been effected from the shop of one ljaz Hussain at Chiniot whose statement was not recorded by the police in that regard nor was he associated with the investigation of this case to find out under what circumstances the said car driven by the deceased had ended up in his shop and who had brought the same to that shop. All these aspects of this matter have completely exposed the hollowness of the prosecution's case in this regard.
14. The alleged recovery of the National Identity Card of Sabir Hussain deceased and the Registration Book of the above mentioned car from a locked box in a room of Muhammad Naeem appellant on 2-1-2001 at the instance of the said appellant has also appeared to us to be concoction incarnate. The said recovery had been witnessed by Faazil 113.W.4) who was related to Sabir Hussain deceased as the latter was married to the former's' niece. Although the prosecution wants this Court to believe that the said items had been recovered on 2-1-2000 but the statement made by Muhammad Sultan Ahmad (P.W.2) before the learned trial Court gave a lie to the prosecution's case in that regard as the said witness had stated that at the time of arrival of the police at the place where the dead body of Sabir Hussain deceased was found on 21-12-2000 the Registration Book of the car driven by the deceased was available and the police had recorded the registration number and the model of the said car in its record after checking the same . From the said Registration Book. Apart from that the prosecution's case is that Muhammad Naeem appellant had a key to the lock available with him at the time of the alleged recovery and it was with that key that he had opened the relevant box at the time of the alleged recovery. This stand of the prosecution was clearly incompatible with the fact that the said recovery had allegedly been effected on the 13th day of his custody with the police. It is not readily believable that upon his arrest the local police had not taken the said key being carried by the said appellant into its possession and had allowed this appellant to keep on carrying the said key with him during all this period of his custody with the police.
15. The alleged-recovery of a blood-stained Chadar belonging to Sabir Hussain deceased from the possession of Muhammad Gulzar appellant hasalso failed to inspire our confidence. The witnesses produced by the prosecution in respect of the last-seen evidence had never claimed that Sabir Hussain deceased was carrying any Chadar with him when he had stately left with the appellants.
The recovered Chadar was admitted by the recovery witness namely Haq Nawaz (P.W.5) to be of common pattern and even 'Ululam Hussain complainant (P.W.1) had not mentioned any special feature of or any distinguishing mark on the said Chadar at the time of identifying the same to be that of the deceased. Haq Na8,vaz (P.W.5), who had witnessed the said recovery, was a neighbor of Sabir Hussain deceased and he lived 12 miles away from the place of the alleged recovery.
Admittedly no witness from the locality in question had been associated with the said recovery.
Haq Nawaz (P.W.5) had acknowledged before the learned trial Court that the Investigating Officer recording his statement in respect of the said recovery had not read over the said statement to him after recording the same. Apart from that we have noticed that Sabir Hussain deceased had died on account of strangulation and according to the medical evidence there was no bleeding involved in his death but strangely enough the Chadar recovered in this case was stained with human blood. The medical evidence provided by Dr. Zafar lqbal (P.W.8) showed that the injuries found on the dead body which could have caused bleeding were post-mortem and the same could be caused by teeth of animals which might have nibbled at the dead body after it had been abandoned in the sugarcane field from where it was ultimately recovered. In these circumstances the stains of blood found on the recovered Chadar, even if it belonged to the deceased, did not stand connected with the alleged murder of the deceased. Moreover, Dr. Zafar lqbal (P.W.8) had maintained that Sabir Hussain deceased had died on account of strangulation and the ligature marks found on the neck of the dead body were well-defined and such well-defined ligature marks could not have been created or caused by a cloth or a soft substance. In this view of the matter it could not be said in this case that the recovered Chadar had been used for the purpose of strangulating Sabir Hussain deceased. For all these reasons even this recovery has been found by us to be of no avail to the prosecution.
16. The medical evidence relied upon by the prosecution in this case did not in any way connect the appellants with the alleged crimes as the circumstances in which Sabir Hussain deceased had a rendezvous with his death had remained shrouded in mystery and there was no direct evidence available in this case in that regard so as to look for support of the same from the medical evidence.
17. After discarding each one of the pieces of evidence being relied upon by the prosecution in this case we are of the considered opinion that a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. They shall be released from the jail forthwith if not required in any other case.
18. Murder Reference No, 43-T of 2002 is answered in the negative and the sentences of death passed against the appellants by the learned trial Court are NOT CONFIRMED.