' Appellants Sana Ullah and Muhammad Sharif were tried in case F.I.R. No,74 of 1995 dated 28-4- 1995 registered under section 302/364/412, P.P.C. At Police Station Factory Area, District Sheikhupura by the Additional Sessions Judge, Ferozewala who vide judgment dated 23-12-2000 convicted both the appellants under section 302(b), P.P.C. And sentenced them to imprisonment for life. Both of them were also convicted under sections 395 and 412, P.P.C. And sentenced each of them to ten years R.I. On each count and to pay a fine of Rs,50,000 each on each count or in default whereof to undergo further six months R.I. Each on each count. Sana Ullah appellant was also convicted under section 364, P.P.C. And sentenced to ten years' R.I and to pay a fine of Rs,50,000 or in default whereof to suffer further six months R.I. Muhammad Sharif appellant was, however, acquitted of the charge of section 364, P.P.C.. Both the appellants were also ordered to pay Rs,One lac each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to both the appellants.
2. Challenging their conviction and sentence both the appellants filed the instant appeal through jail.
3. Succinctly, the story of the prosecution is that Faqir Muhammad son of Muhammad Ibrahim (deceased) had a Mazda Pick up (MNP/7825) which was used by him as a delivery van. Statedly he used to go to Adda Kot Abdul Malik daily and come back in the evening. On 15-2-1995 at about 12- 00 noon. Sana Ullah, (appellant), Mushtaq Ahmed and Fuqara son of Akbar (Accused) came at the Adda and hired pick up of the deceased on the pretext of carrying Rice from Khanpur to Khokhar Road, Lahore and an amount of Rs,400 was settled as a fare. This transaction took place in the presence of Muhammad Iqbal, Ghulam Rasul. Allah Ditta, Muhammad Ashraf and Abdul Hamid (P.Ws.) and within their view the deceased alongwith the said persons left the Adda (stand).
Statedly, Faqir Muhammad did not return home on the said day and the complainant Muhammad Ibrahim, real father of deceased, started searching for his son and ultimately on 28-2-1995 reported the matter to the police and the present case was registered.
4. During the investigation Sana Ullah, Muhammad Sharif (appellants) alongwith Qaiser Butt, Abdul Ghafoor and Javaid Masih were arrested as the real culprits and were challaned. File of this case reveals that Qaisar Butt and Abdul Ghafoor accused died during the trial whereas Javed Masih accused became absconder but later on also died.
5. Before the trial Court prosecution produced seventeen witnesses to prove the charge against the appellants.
6. Muhammad Latif Baig A.S.-I. P.W.1 received application Exh.P.A. On behalf of complainant and forwarded the same to the police station for the registration of formal F.I.R. Muhammad Ibrahim P.W.2 being the complainant has supported the prosecution case and narrated the facts mentioned by him while lodging the F.I.R. While deposing before the trial Court he also explained that at the time of abduction, his son was wearing wrist watch, golden rings as well as had his driving licence, identity card alongwith other documents of the vehicle with him. Muhammad Iqbal P.W.3 was present at Adda Kot Abdul Malik when three persons namely Sana Ullah, Faqir Muhammad and Mushtaq came there and hired the vehicle of the deceased. In the cross- examination he admitted that the abovesaid accused were not known to him before 15-2-1995 but he came to know about their identity as they were calling each other by their names. Mahmood Asghar P.W.4 identified the dead body of Faqir Muhammad at the time of post-mortem examination. He was also present when the identification papers regarding Pick-up P.1 (MNP 7825) were prepared. He was also present when both the appellants in police custody pointed out the place where they allegedly threw the deceased in the canal. He also identified handkerchief P.2, Purse P.3, Identity Card P.4 Watch P.8 which belonged to the deceased as well as copy of birth certificate of deceased P.5, Spare Wheal P.6 and Jeck P.7 of the vehicle of the deceased and had signed the relevant documents i,e, Exhs.P.H. And P.J. Abid Javed P.W.5 identified the dead body of Faqir Muhammad deceased at the time of post-mortem examination. Allah Ditta P.W.6 was present at Adda Kot Abdul Malik at the relevant time and in his presence three unknown persons hired pick up of the deceased. Before the trial Court he also identified Sanaullah appellant and stated that he was one of the said three persons who had hired Pick-up of the deceased. During the cross-examination this witness had admitted that before the occurrence he never knew Sanaullah appellant Rafaqat Ali P.W.7 deposed to the extent that in the year 1995 he alongwith Mazhar Elahi was going from Adda Kot Abdul Malik to Sheikhupura on tractor trolly when he met the accused persons who were travelling in a biscuit colour vehicle which was being driven by Faqir Hussain deceased. Statedly, Sana Ullah and Muhammad Sharif appellants were also sitting in the said vehicle. Faqir Hussain A.S.-I. P.W.8 deposed that on 9-3-1995 Abdul Ghafoor co-accused led the recovery of car LEM/125. Statedly on 10-3-1995 Muhammad Sharif appellant and Abdul Ghafoor accused during interrogation disclosed that they also looted TV, VCR and a changer during a dacoity. Thereafter, Muhammad Sharif appellant led to the recovery of said articles from the house of one Javaid Masih. Similarly, on 11-3-1995 in the presence of this witness Sana Ullah appellant disclosed that after the murder Faqir Muhammad deceased, he took away his wrist watch, identity card, spare tyre of his vehicle and copy of birth certificate and, thereafter, he led to the recovery of these articles which were taken into possession vide memo. Exh.P.L. On 25-3-1995 Javed Masih accused led to the recovery of wrist watch P.8 of the deceased from the house of Abdul Ghafoor co-accused and the same was taken into possession vide memo. Exh.P.M. Statedly during investigation on 17-3-1995 Muhammad Sharif appellant also led to the recovery of two police uniforms.
7. Dr. Muhammad Aslam Hamid P.W.9 conducted post-mortem examination on the dead body of Faqir Muhammad and observed the following injuries thereon:--
(1) Ligature marks of 22 c.m. x.
2.5 c.m. On the right arms just above the right elbow joint. It was well marked and was easily identifiable.
(2) Ligature marks of 22 c.m. x 2.5 c.m. On the left arm just above the left elbow joint. It was well marked and was easily identifiable.
' In the opinion of doctor, death occurred due to drowning leading to asphyxia which was sufficient to cause death in the ordinary course of nature.
8. Ilam Din Patwari P.W.10 prepared scaled site-plan Exh.PP and PP/1. Wazir Ali S.-I. P.W.11 stated that on 11-3-1995 during investigation Sana Ullah appellant disclosed that he alongwith Muhammad Sharif appellant and other co-accused had snatched Pick-up (Dala) from Faqir Muhammad deceased who was later on killed by them by throwning him in the canal after administering tablets of Ativan to him. This witness was also present during the investigation when Sana Ullah appellant led to the recovery of belongings of the deceased. Ghulam Rasul P.W.12 was present at Adda Kot Abdul Malik on 15-2-1995 when three persons namely Fuqara, Sana Ullah and Mushtaq came there and hired vehicle of the deceased. During cross-examination this witness also admitted that prior to 15-2-1995 he never knew the accused persons. Mushtaq Ahmed P.W.13 was present when Mehmood Asghar identified the vehicle bearing registration MNP-7825 and signed the identification memo. Exh.P.C. He was also present when the appellants pointed out the place near the canal where they threw the deceased in the canal and had signed the memo. In this regard. He also witnessed the recovery of dead body of Faqir Muhammad which was lying in sand and had identified the same. Muhammad Anwar F.C. P.W.14 took the dead body of Faqir Muhammad to the mortuary for post-mortem examination and after the same last-worn clothes of the deceased were produced before the Investigating Agency. Muhammad Hanif P.W.15 was present when the Pick-up was stopped by the police and appellants alongwith two other co- accused were apprehended. This Pick-up was taken into possession vide memo. Exh.P.R. And during the personal search of the accused one pistol was recovered from Muhammad Sharif appellant. Abdul Ghafoor Inspector P.W.16 conducted the investigation in this case and submitted the challan before the trial Court. Sher Muhammad Pasha S.I. P.W.17 entered the formal F.I.R.
Exh.P.A./1.
9. Learned trial Court also examined both the appellants under section 342, Cr.P.C. Both of them while denying the charges had pleaded their innocence.
' None of the appellants made any statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
10. Learned trial Court after appraisal of evidence available on the record vide judgment dated 23- 12-2000 convicted and sentenced both the appellants as narrated in the earlier part of the judgment.
11. Learned counsel for the appellants 'submitted that the appellants had been involved in this case maliciously by the investigation agency just to show the efficiency, that the unexplained delay in lodging the F.I.R. Was fatal for the prosecution; that the witness knew the appellants prior to this occurrence and in the absence of any identification parade, the statements of witnesses wlio had allegedly seen the deceased in the company of accused persons would be of no value in the circumstances of this case; that the recovery evidence relied upon by the prosecution was manufactured during the investigation to strengthen the case; that in fact it was a case of no evidence and the appellants had earned the right of acquittal. Conversely, learned counsel for the State vehemently opposed the contentions raised by the learned defence counsel.
12. Heard. File perused.
13. It was an unseen occurrence and the prosecution to 'prove its case against the appellant has relied upon the evidence in the form of last seen, recovery, place of occurrence pointed out by the appellants and motive for the commission of this offence.
14. As far as the evidence of last seen is concerned, statedly, Muhammad Iqbal P.W.3, Allah Ditta P.W.6 and Ghulam Rasool P.W.12 were present at Adda Kot Abdul Malik when allegedly Sana Ullah appellant alongwith two other persons (not challaned) hired Pick-up of the deceased. It is evident from the statements of these witnesses that none of them knew Sana Ullah prior to the occurrence and for the first time they saw him on the day of occurrence. After his arrest Sana Ullah was never put to the test of identification parade and on the basis of such type of evidence, it would be unsafe to rely upon the statement of abovesaid witnesses. During trial Allah Ditta P.W.6 identified Sana Ullah before the Court but identification before the Court after almost five years of the occurrence is not reliable in the circumstances of the case. In case titled Tayyab v. The State (1995 SCM R 412) their Lordship while rejecting such type of evidence have observed: "It was at the time of recording such evidence that he stated pointing towards Tayyab, that he was the man who abducted him. Such evidence can hardly be relied upon as identification of the accused and corroboration to other evidence and made basis of conviction."
' According to the prosecution's own case deceased Faqir Muhammad was seen in the company of Sana Ullah appellant on 15-2-1995 whereas according to the post-mortem, report which was prepared on 6-3-1995 the time between death and post - mortem was within one week. There is no evidence on the record to show as to when Faqir Muhammad was done to death and there is no proximity between the death and last seen. Even otherwise the evidence of last seen is a very weak type of evidence. The statement of the abovesaid witness without any independent piece of evidence would be of no value.
15. During investigation allegedly certain belongings of the deceased were recovered from Sand Ullah appellant whereas Muhammad Sharif led to the recovery of two T.V. VCR, remote control alongwith two police uniforms (i,e, case property of some other case). Before the trial Court in order to prove this part of the case, prosecution has only relied upon the statement of police officials.
Admittedly, at the relevant time Lambardar and other respectables of the village were available but none of them was made to join the recovery proceedings. No doubt, the said police officials had no personal malice to falsely implicate the present appellants but in the circumstances of the case it would be unsafe to rely upon the sole statements of police officials to convict the appellants on the charge of capital sentence. Even otherwise, Muhammad Sharif appellant never led to the recovery of any belonging of the deceased and there is no direct evidence to connect him with murder of Faqir Muhammad deceased.
' During investigation Pick-up P.1 of the deceased was also taken inte,custody by the police. This Pick-up at the relevant time was being driven by Qaisar Butt, (since dead) co-accused of the appellants. Statedly both the appellants alongwith their co-accused were sitting in the said vehicle when the police arrested the accused and took into custody the said vehicle. The recovery of van from the joint possession of many accused is not sufficient to connect the appellants with the commission of this offence. This type of evidence even otherwise, is not admissible. "Abdul Ghani and 3 others v. The. State (1976 PCr.LJ 1462) and Khalas Khan and another v. The State (1975 PCr.LJ 172)."
17. Another piece of evidence relied upon by the prosecution to connect the appellants with the commission of this offence is that during the investigation appellants also led to the place where they alongwith other co-accused threw the body of the deceased in the canal. A careful analysis of the statements of Mushtaq Ahmed (P.W.13) and Abdul Ghafoor Inspector (P.W.16) reveals that both the appellants and other accused were taken together to the said place during the investigation and in the circumstances the possibility that said place was pointed out jointly by all the accused cannot be ruled out. Even otherwise it is not clear from the statement of Investigating Officer whether during the investigation he observed any marks of struggle or dragging etc. At the spot, nor any material/evidence from the spot was collected by the Investigation Agency to show that accused attempted to dispose of the dead body from the said spot. This piece of evidence is also not free from doubt and the same cannot be rel ied upon.
18. The crux of the above discussion is that the case in hand is full of doubts and the appellants are entitled to get the benefit of the same.
Accordingly, the instant appeal is accepted, conviction and sentence of the appellants is set aside and they are acquitted of the charges. They shall be released forthwith, if not required in any other case.