This judgment will dispose of Criminal Appeal No. 1507 of 2001 filed by Mukhtar Ahmad, Amanullah and Muhammad Ramzan, appellants who were convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and to pay a fine of Rs.1,00,000 each, in default two years' R.A.
With the benefit of section 382-B, Cr.P.C. The conviction and sentence was recorded by the learned Additional Sessions Judge, Sargodha vide judgment dated 22-9-2001.
2. Briefly stated the facts of the case as stated by Sher Ali, complainant are that on 9-1-1999 at about 5-00 p.m. His nephew Iftikhar Ahmad, Amanullah, Mukhtar Ahmad and Ramzan met him (the complainant), Ghulam Abbas and Muhammad Nawaz near the Dera of Noor Muhammad on a road. Iftikhar Ahmad, the nephew of the complainant did not return home. The complainant searched for him but remained unsuccessful. Amanullah, Mukhtar and Ramzan were contacted by the complainant to know the whereabouts of Iftikhar Ahmad but they did not give proper reply but the complainant was sure that Iftikhar was murdered by Mukhtar, Ramzan and Amanullah for the reason that Iftikhar Ahmad was married with Mst. Asmat Bibi four months prior to the occurrence and this marriage was not liked by Mukhtar as he himself wanted to marry Mst. Asmat Bibi.
3. Investigation of the case was conducted by Bazgul, S.-I. (P.W.13). He, after registration of the formal F.I.R., visited the place of occurrence and prepared the rough site, plan Exh.PJ, recorded statements of the witnesses and searched for the accused and finally on 26-1-1999 he arrested Muhammad Ramzan. On 27-1-1999, Mukhtar and Amanullah, accused while in custody led to the recovery of weapons of offence. Amanullah led to, the recovery of 30-bore pistol P.1 which was taken into possession vide memo. Exh.PE. On the same day, that is, 27-1-1999 Mukhtar accused also got recovered revolver 32-bore P.3 which too was secured vide memo. Exh.PE. Both these accused were arrested by Muhammad Siddique, Inspector (P.W.14) on 14-1-1999. Similarly, on 3-9-1999 Muhammad Ramzan accused got recovered 30-bore pistol P.5 which was taken into possession vide memo. Exh.PK. After completion of the formal remaining investigation, all the three accused were challaned to face trial.
4. At the trial, prosecution in order to prove its case produced 18 witnesses in all. Then the learned ADA after tendering into evidence report of the Serologist closed the prosecution case. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and false implication.
5. Learned counsel for the appellants after having read, the entire prosecution evidence submits that it was an un-witnessed occurrence. Further submits that there is no direct evidence against the appellants. Adds that there is delay of 4 days in lodging the F.I.R. So far as last seen evidence is concerned, learned counsel submits that Ghulam Abbass, P-W.6 and Muhammad Nawaz, P.W.11 did support the prosecution case and were declared hostile and that Ghulam Muhammad (P.W.8) the alleged witness of recovery of dead body Iftikhar deceased on the pointation of Mukhtar and Amanullah accused was also declared as hostile although there is evidence of Haji Ahmad P.W.18 about the same fact but the Investigating Officer did not mention the name of Haji Ahmad as P.W.
According to the learned counsel Haji Ahmad (P.W.19) admitted in cross-examination that he had been joining the investigation of different cases at the instance of Police and had been giving evidence. Learned counsel submits that recoveries on the pointation of the appellants is of no avail to the prosecution because no crime empties were recovered from the spot. Further submits that to prove the motive, no evidence was produced by the prosecution and so far as extra-judicial confession is concerned, though the complainant tried in examination-in-chief to state that the appellants had admitted or confessed before him but that part of the statement was missing in the F.I.R. And even there was no such statement under section 161, Cr.P.C. To that effect. Learned counsel lastly submits that there is no corroboration to the statement of Muhammad Siddique, Inspector (P.W.14) with regard to recovery of dead body of the deceased. Concluding his submissions, learned counsel submits that prosecution having miserably failed to prove its case against the appellants, they are entitled to acquittal.
6. On the other hand, learned counsel for the State submits that though the witnesses of last seen were declared hostile but recovery of the dead body on the pointation of Mukhtar and Amanullah proves the prosecution case against the convict appellants.
7. I have heard learned counsel for the parties and have gone through the entire record. In the instant case, it was the story of the complainant, namely, Sher Ali that he had met the deceased along with the appellants on 9-1-1999 at 5-00 p.m., thereafter Iftikhar Ahmad deceased was missing, he tried his level best to locate the deceased but failed, later on he asked the appellants to know the whereabouts of the deceased, firstly they resisted but did not give the clue of the deceased, however, he had suspicion that Iftikhar was murdered by three appellants. It was an un- witnessed occurrence and 'was a case for circumstantial evidence. So far as last seen evidence is concerned, Ghulam Abbas (P.W.6) and Muhammad Nawaz (P.W.11) though were mentioned in the F.I.R. But they, have been declared hostile. In this behalf, solitary statement of Sher Ali, complainant who is real uncle of the deceased cannot be made basis to maintain the conviction against the appellants on a capital charge.
8. Now I would take up the recovery of dead body of the deceased on the pointation of Mukhtar and Amanullah appellants. In this behalf it was stated by Investigating Officer Muhammad Siddique, Inspector (P.W.14) that both Mukhtar and Amanullah jointly got recovered the dead body of the deceased. This recovery was witnessed by Ghulam Muhammad (P.W.8) but he did not support the prosecution case and was declared hostile. Muhammad Siddique, Inspector (P.W.14) did not mention the name of Haji Ahmed P.W. m whose presence accused got recovered the dead body of the deceased. Moreso, it was a case of joint recovery which is not admissible in evidence.
9. The complainant Sher Ali tried to improve his statement before the trial Court with regard to extra-judicial confession by stating that all the appellants confessed before him that they have killed Iftikhar Ahmad but that portion of statement of the complainant was missing in the F.I.R. Nor any such statement of the complainant was recorded under section 161, Cr.P.C.
10. The recoveries of weapons of offence on the pointation of the appellants loses its significance in the absence of recovery of any crime empty from the place of occurrence.
After having analyzed the entire prosecution case from all angles when the witness of recovery of dead body on the pointation of the appellants was declared hostile apart from the fact that it being joint recovery was inadmissible in evidence, the declaration of the witnesses of last seen as hostile, non-recovery of crime empties from the place of occurrence, the evidence of alleged extra-judicial confession being not on the record and improvement of the complainant in his statement before the trial Court in that regard, I am of the considered view that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt.
Resultantly, this appeal is accepted, conviction and sentence recorded against the appellants by the trial Court is set aside and they are acquitted of the charge. All the three appellants are in jail and shall be released forthwith if not required to be detained in any other case.