' SARDAR MUHAMMAD NAWAZ KHAN; J.--- This appeal against the conviction order of Ehtesab Court No,1 arises out of the following facts:---
2. A Crime No,330 of 1992 for offences under sections 467/468/ 471/406/409, P.P.C. Read with section 5(2), P.C.A. Was registered at Police Station, Muzaffarabad on 1-8-1992 on a report of complainant Muhammad Saeed Deputy Secretary Finance/Secretary Welfare Trust of the Government employees. It was alleged in the report, that convict-appellant (hereinafter shall be called as appellant) Muhammad Azam Durrani resident of Upper Chatter, Muzaffarabad remained as Accountant of Benevolent Fund for about 11/12 years. In the month of May, 1989 when the welfare trust was bifurcated the appellant was appointed as Accountant of Benevolent Trust of non- gazetted employees.
' He was entrusted with the job to maintain the record of the trust including receipts and payment etc. As such he was the custodian of the record. The complainant asked him to produce cash book and other record so that it could be checked but he evaded the matter consequently, the complainant while finding his conduct as doubtful directed him to present the list of income and expenditure on July 21, 1992. The appellant took along with him cash book. Cheque Books, Pass Books and TDR etc. To home so that the required list showing income and expenditure of the fund could be prepared. The appellant did not return to the office on very next day i,e, 22-7-1992 neither he submitted the record rather he applied for one day leave. The complainant sent Ali Akbar Supervisor Petrol Pump to his home with the direction to ask the appellant to send the record so that the required list of income and expenditure could be prepared. However, Ali Akbar on his return from the house of the appellant told the complainant that the appellant was away from his house on account of illness of his son. The complainant upon this information visited the office of Benevolent Fund accompanied by Ch. Ghulam Haider President Non-gazetted Association and Raja Akhtar Hussain President, Teacher Association who were members of the Benevolent Trust. Ch. Ghulam Haider told the complainant that a sum of Rs,5,62,018 were embezzled per his information apart from some other misappropriation in the fund. The complainant checked the record in the office whereupon the Assistant of the office informed that the record was kept by the appellant in an Almirah. The complainant sealed the Almirah and also changed the lock of the room wherein the record was kept by the appellant. On the very next day, the Assistant Benevolent Fund, Abdur Rehman reported to the complainant that somebody attempted to break the lock of the room during night hours. This incident of breaking the lock was reported to the police. The appellant did not return to the office even on 23-7-1992 neither he submitted the record. Subsequently, the complainant accompanied by Ch. Ghulam Haider went to National Savings Centre at Muzaffarabad from where he tried to ascertain information about the facts and figures of the Accounts maintained in the said center. The officials of National Savings Centre promised to supply information about the Accounts of the trust on 24-7-1992. The complainant and his companion after having done so visited Habib Bank wherein the Accounts of the trust were opened. The Bank official also promised to furnish information about the Accounts of the trust on the same day. The complainant on the same date through a preliminary checking found that a Cheque No,07703625 in the sum of Rs,5,62,018 was issued by the Gazetted trust in the name of non-gazetted trust and the same was received in the Accounts of non-gazetted trust. Apart from this some other amount out of interest of the original amount in National Savings Centre which was to be deposited in the Habib Bank was found likely to be embezzled The complainant issued notice to the appellants to appear in order to explain the ex facie embezzlement of the amount however, he absented. His father and brother came at the house of the complainant at the evening and disclosed that the appellant was residing with his father-in-law at Brar-Kot on account of illness. The complainant asked them to handover the Cash Book, Pass Book, cheque books etc. And the keys of concerned Almirah. They promised to do so on 27-7-1992 if the appellant could not attend the office. On 27-7- 1992, the complainant received information by the Assistant of the office through a telephonic message that the appellant had returned in the office. The complainant directed the Assistant to send him in the office of complainant consequently, the appellant appeared before him in his office. The complainant asked him to produce relevant record whereupon he informed that the same had been stolen by someone. On the said date, the offices were closed on account of strike however, the complainant asked the appellant to sit in his office and he himself attempted to contact other members of the trust but on account of strike they were not available. The complainant returned to his office and found the appellant missing. The keys of the relevant Almirah were lying on a table in the office of the complainant. The father and brother of the complainant contacted Raja Akhtar Hussain and Muhammad Bashir Dar to return the embezzled amount and asked to allow chance to do so. The complainant held a meeting with the members of the Board on 28-7-1992 and informed the Chairman of the Board about the entire situation. The Chairman directed the complainant to lodge a report with the police. The complainant while lodging the report with the police alleged that the appellant being employee of the trust embezzled the money by opening a false account in National Savings Centre. He fabricated the record after having put false and fake signatures of the Secretary of the Trust. He prepared false record through which he obtained embezzled amount. On this report, a case of above stated offences was registered against, the appellant. After completion of investigation, the case was challaned before Anti-Corruption Judge at Muzaffarabad. The case while at the stage of evidence by the prosecution before Anti-Corruption Judge stood transferred to Ehtesab Court by operation of law.
The Ehtesab Court proceeded with the case from the stage it was transferred to him and after conclusion of the trial he passed the impugned order by awarding 5 years R.I. For commission of offences under section 409, A.P.C. Read with section 5(2), P.C.A. Along with a fine in the sum of Rs,10,52,018 (embezzled amount). He was also awarded sentence of 5 years' R.I. For commission of offences under sections 467 and 471, A.P.C. Both the sentences, according to the impugned order, are to be started simultaneously however, in case of default in payment of fine the appellant has to undergo with a further R.I. For one year. It is the aforesaid order, the legality and correctness of which is under challenge before this Court through the present appeal.
3. The learned counsel for the appellant challenged the validity of the impugned judgment on different grounds. Firstly, he assailed the indictment of the appellant under section 242, Cr.P.C.
According to the learned counsel, the charge was defective because the particulars of offences allegedly committed by the appellant were missing in it and his conviction was not possible on the basis of such a uncertain charge. It was not carefully drawn up in accordance with the law as provided under sections 221, 222, 223, Cr.P.C. The particulars of alleged offences were to be stated in the charge because the object of such statement is to enable the accused person to know the nature of charge he will have to meet during trial. Therefore, according to the learned counsel, by drawing such an uncertain and defective charge the appellant was misled on account of which he was prejudiced. The learned counsel further submitted that when the charge was of such a nature that could prejudice an accused person the law warranted to vitiate the trial. Secondly, the learned counsel attacked the nature and form of the statement of the appellant under section 342, Cr.P.C.
And contended that while recording the statement under the aforesaid provision of law incriminating evidence appearing against him as deposed by the prosecution witnesses was not put to him so as to provide him an opportunity to explain it. Thus, according to the learned counsel, this omission on behalf of the Court being an illegality of serious nature warranted to undo the impugned order. On merits of the case, it was argued that the prosecution evidence itself suggested to say that Muhammad Sadiq Dar, the then D.D.O. Of the Trust was equally responsible for embezzlement of the amount therefore, when he was let off without any legal justification the appellant also was entitled to acquittal by giving him benefit of doubt. The learned counsel during his arguments placed reliance on case-law like PLD 1985 SC (AJ&K) 51 and 2001 PCr.LJ 770 on the point of requirement of sections 242 and 342, Cr.P.C.
4. Conversely, the learned Chief Prosecutor Ehtesab Bureau while controverting the arguments on the side of the appellant submitted that all the requirements of section 221, Cr.P.C. Were fulfilled while examining the appellant under section 242, Cr.P.C. He further argued that purpose of subsection (2) of section 222 is to make it to the accused clear that he should precisely know the case set up by the prosecution against him. He supported his argument on the strength of case- law like 1993 PCr.LJ 1230. According to him, sections 221 and 222 are subsidiary or ancillary to section 225 which lays down that during framing of charge no error or omission shall be material unless it has misled the accused. The requirement and stress is that the accused shall not be unaware of the nature of the case, the learned counsel maintained. During this argument, he placed reliance on 1991 SCM R 326 and 1992 PCr.LJ 2009. It was further argued that minor discrepancies while framing the charge shall not be taken into view by the Court as observed in 1990 M LD 2322, 2000 PCr.LJ 367 and 1997 PCr.LJ 1663.
5. While coming to the merits of the case, the learned Chief Prosecutor submitted that the case against the appellant was proved beyond any shadow of doubt and mere fact that Muhammad Sadiq Dar then D.D.O. Was let off by the police did not warrant under law to exonerate the appellant of his criminal liability in the instant case of embezzlement.
6. The appellant is admittedly a public servant and he has been convicted for commission of criminal breach of trust as he had the dominion over the property in the capacity of public servant.
This allegation found place in the charge framed under section 242, Cr.P.C. He has also been convicted for forgery of valuable security and using the same as genuine document in order to embezzle the amount available in the trust of non-gazetted employees. The form and contents of charge under section 242, Cr.P.C. When seen carefully clearly indicated the nature of offences levelled against the appellant and that is why he replied that he did not commit the alleged offences. No error in stating either the offence or the particulars in the charge and no omission to state offences or those particulars should be regarded at any stage of the case as material unless the accused is in fact misled by such error or omission and it has occasioned in failure of justice.
Reference may be had to section 225 of Cr.P.C. It is correct that the charge should be precise in its scope and particulars and it should be carefully drawn up in accordance with the offences disclosed. It is also correct that an accused cannot be convicted on an uncertain and defective charge. However, as stated earlier that under section 225 any error in stating either the offence or the particular required to be stated in the charge or the omission to state the offence or particulars is immaterial unless the accused is in fact misled by such error or omission and the same caused injustice to him. Here in this case, the appellant being custodian of property or in other words having dominion over the same put the forged and fake signatures of D.D.O. Over the documents and used the same as genuine to obtain embezzled amount from the Accounts of the Trust in National Savings Centre. This all was put to him while framing the charge and he very much knew about the nature of the offence with which he was charged. Keeping in view the contents of the charge, the language used in it and reply given by the appellant it cannot be said that he was misled at the time of putting him on charge which resulted into failure of justice. He never raised any objection during the trial. He was being represented through a legal expert throughout the trial therefore, the arguments on the side of the appellant regarding misled of the accused is unfounded having no force in it. The general rule as provided under section 233, Cr.P.C. Is that for every distinct offence of which a person is accused there shall be a separate charge and every such charge shall be tried separately however, there are certain exceptions to this general rule as provided under sections 222(2), 234, 235, 236 and 239, Cr.P.C. The afore-mentioned provisions of law are kept on statute book to prevent an accused from any embarrassment or difficulty in defending himself in a charge against him. A charge or joinder of charges if not found to have misled the accused does not warrant to vitiate the trial resulting into remand of the case for de novo trial or acquittal of accused person. The case in hand is a case covered by subsection (2) of section 222, Cr.P.C. Wherein it is laid down that in case of criminal breach of trust and dishonest misappropriation of money, it is sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between.Which the offences alleged to have been committed without specifying particulars, items or exact dates are not necessary. The charge framed for criminal breach of trust and misappropriation of money shall be a valid charge within the meaning of section 234, provided the time included between the first and the last of the such dates does not exceed one year. No doubt period of commission of offences for criminal breach of trust and misappropriation is not clear from the charge in this case but the fact remains that this omission is not fatal to the prosecution case in view of what has been laid down under section 225, Cr.P.C. Neither it is found to have misled the appellant causing injustice to him. The appellant had been facing trial having full knowledge about the nature of allegation against him as it appears from his reply to the query of the trial Court and the fact of cross-examination to the prosecution witnesses. He is not an ordinarily man rather an educated person who had dominion over the property of the trust for couple of years knowing what he had done with the property and what was alleged against him therefore, he could easily defend himself and he attempted to do so.
7. The conclusion therefore, is that no material illegality is found to have been committed while framing charge under section 242, Cr.P.C. Which could vitiate the trial in the instant case. Likewise the argument regarding failure of putting the incriminating evidence deposed by the prosecution witnesses while recording statement under section 342, Cr.P.C. Is also without substance. The trial Court while recording the statement of the accused under the aforesaid provision of Criminal Procedure Code is found to have disclosed all the evidence brought on record by the prosecution during trial and nothing was left out to be put to the accused which could suggest the reversal of the impugned judgment. The appellant was asked different questions during which the entire evidence was shown to him being an educated and concerned person in the service of the Trust.
He is found to have understood the nature of the evidence recorded against him and he termed the same as false and fabricated behind his back. This reply by the appellant clearly indicated that nothing was left behind while putting the incriminating evidence to him therefore, he had the fair opportunity to defend him through the defence evidence but he opted not to produce any evidence in his defence.
8. Coming to the merits of the case, it may be observed that the documentary evidence especially the report of handwriting expert duly tendered in the evidence clearly provides linkage of the appellant with the offences he is convicted for. It is useful to mention here that this statement of the handwriting expert goes unchallenged by the appellant as he did not cross-examine this witness. Another factor which lends support to the prosecution case is that the appellant himself relied upon an inquiry report showing his and Muhammad Sadiq Dar's (D.D.O.) involvement in the embezzlement of benevolent fund. The fact of involvement of then D.D.O,. Under law, cannot be allowed to exonerate the appellant of his criminal liability in the present case therefore, he has rightly been convicted for commission of dishonest, misappropriation of money and criminal breach of trust as he was having dominion over the trust property. Although, Muhammad Sadiq Dar was trustee of the property yet under section 409, A.P.C. Any person being public servant who has been entrusted with the property or having dominion over the property can be punished for the criminal breach of trust therefore, no illegality has been found while convicting him for commission of alleged offences. However, the sentence of fine awarded by the trial Court does not appear to meet the ends of justice. The reason being that the persons who conducted the departmental inquiry against the appellant and Muhammad Sadiq Dar appeared as prosecution witness in the instant case and it was disclosed that per their inquiry both Muhammad Sadiq Dar and appellant were equally responsible for embezzlement of the fund. As Muhammad Sadiq Dar is not before this Court therefore, any observation detrimental to his interest is not possible as it would amount to un-heard condemnation but the fact remains that it is not clear that to what extent the embezzled amount was received by the appellant. The trial Court awarded sentence of fine to the extent of total embezzled amount which is not fair neither it is in the interest of justice in the given circumstances .
9. The result is that the sentence awarded by the trial Court except fine is allowed to stand and the appeal stands disposed of accordingly.
Order accordingly.
2004 P Cr.. L J 1906 [Lahore] Before Nazir Ahmad Siddiqui and Sh. Hakim Ali, JJ MUHAMMAD ABDULLAH---Appellant versus THE STATE---Respondent Criminal Appeal No,121 and Murder Reference No,30 of 1999/BWP, decided on 23rd June, 2004.
(a) Penal Code (XLV of 1860)--- ----S. 302---Appreciation of evidence---Soundness of motive, which otherwise did not appeal to reason had not been proved by prosecution--Extra-judicial confession of accused 'was tried to be proved through statements of two witnesses, which had not fulfilled the requirements of the proof to prove extra-judicial confession---Both said witnesses were related to victim and to the complainant and they had shown strange conduct as after having known the murder of deceased they let accused to proceed to any place without asking him to accompany them to the legal heirs of deceased---Both the said witnesses being related to the deceased as well as to complainant and there being no other corroborative evidence to prove their truth, evidence of said extrajudicial confession, could not be believed in given circumstances---Incident was an unseen occurrence-- -Whether "Chhuri" was used while committing alleged murder of deceased, was not proved by prosecution through any cogent evidence, it could not thus be said that alleged recovered Chhuri was the weapon of offence and used in the alleged murder---Not believable that Chhuri had been kept by accused with blood-stained earth in such a safe position and place so as to get it recovered even after one month of the killing of deceased---After giving up main witness, solitary statement of other prosecution witness did not inspire confidence---Prosecution had failed to prove beyond any shadow of doubt that the skeleton was that of slain deceased---Accused was acquitted of charge of murder of deceased extending him benefit of doubt. [pp. 1910, 1911, 1912, 1913, 1914, 1915] A, B, C, E, F, G, H, I, J & L Fazal Rahman v. The State and others PLD 2004 SC 250; Muhammad Yousuf v. Muhammad Idrees and others 2004 M LD 910 and Sarfraz Khan v. The State and 2 others 1996 SCM R 188 ref.
(b) Qanun-e-Shahadat (10 of 1984)--- ----Art. 37---Extra-judicial confe'ssion---Evidentiary value---ExtraPCW judicial confession was the weakest piece of evidence to convict an accused solely on its bases-- Such evidence had to be corroborated by cogent, convincing, impartial and independent evidence. [p. 1911] D
(c) Administration of justice--- ----Was better to acquit ten guilty persons than to convict one innocent man. [p. 1915] K Zafar Iqbal,Awan for Appellant. M.A. Farazi for Respondent. Date of hearing: 23rd June, 2004.
' SH. HAKIM ALI, J.--- For the murder/Qatl-e-Amd of one Rattu Ram alias Ratna Ram, allegedly committed on or about 10-9-1994, in the area of Chah Sulehwala, Cholistan, reported by Kala Ram son of Teeja Ram through F.I.R. No,34, dated 8-10-1994 registered with Police Station, Derawar, District Bahawalpur, under section 302, P.P.C., appellant Muhammad Abdullah alias Maula Bakhsh (formerly Mula Ram, before embracing Islam) was tried by learned Additional Sessions Judge, Bahawalpur, who by means of his judgment, dated 20-7-1999, convicted the appellant under section 302, P.P.C. And sentenced him to death with a fine of Rs,50,000. In default of payment of fine, he was to further undergo S.I. For two years. The appellant was also held liable to pay Rs,50,000 as compensation to the legal heirs of the deceased Rattu Ram alias Ratna Ram . The case was referred to this Court for confirmation of sentence of death as required under section 374, Cr.P.C.
Appellant-convict Muhammad Abdullah also challenged his conviction and sentence through Criminal Appeal No, 121 of 1999/BWP. Both the criminal appeal as well as murder reference are being disposed of together through this single judgment.
2. Brief facts as recorded in the F.I.R. Exh.P.A. Chalked out on the statement of Kala Ram son of Teeja Ram,- are that Kala Ram, informant and his elder brother Rattu Ram alias Ratna Ram were cultivators and were residing in Chak No,22/DNB. On 6-9-1994, Mula Ram son of Sanathia Ram, resident of Chak No,33/DNB, at that time, Chah Sulehwala, Cholistan came to his brother Rattu Ram and purchased from his brother a buffalo for a consideration of Rs,7,000. It was settled that Rattu Ram will collect the amount from Mula Ram after three/four days. Mula Ram left the buffalo with his brothers in Chak No,33/DNB and went to Chak Sulehwala. On 10-9-1994 at about 10-00 a.m. Rattu Ram brother of the informant went to Chah Sulehwala for getting amount of buffalo. When after three/four days, he did not come back, they got worried. The informant and his brother-in-law Bhartia Ram went to Mula Ram and inquired about his brother, who told them that after taking the amount, Rattu Ram had returned back. The informant continued inquiring about his brother from his relatives and searching him of his own but in vain. During search on 7-10-1994 at about 5.00 p.m. At Kanday Wala Bridge, Arjan Ram and Sonia Ram met him. He stated to them the incident of missing of his brother, upon which both of them told him that on 10-9-1994 at 4.00 p.m. When they had gone to the house of Mula Ram at Chah Sulehwala to see him, Rattu Ram was present there along with Mula Ram. On their query, Rattu Ram had told them that he had come there to fetch the price of his buffalo, which was sold by him to Mula Ram. After meeting Mula Ram, they had come back on the same day. According to the informant, on 8-10-1994, when he was ready to go to Chah Sulehwala, Mangla Ram and Loona Ram came to him and told him that Mula Ram had killed Rattu Ram and had buried his dead body in the sand dunes of Chah Sulehwala. They further stated that this fact of murder of Rattu Ram and burial of his dead body into the sand dunes was confessed before them by Mula Ram himself, who had also requested them to arrange for his pardon from the legal heirs of Rattu Ram. As per the informant motive behind the occurrence was the grudge cropped up in the mind of Mula Ram, upon the refusal of Rattu Ram to give the hand of his sister- in-law Mst. Bherki to the son of Mula Ram.
3. After registration of F.I.R. On 8-10-1994, Wilayat Khan S.-I./S.H.O. Recorded the statements of Mangla Ram, Loona Ram, Bhartia Ram, Arjan Ram and Sonia Ram under section 161, Cr.P.C. At the Police Station. Thereafter he proceeded to the place of occurrence. In his way to the place of occurrence, accused Mula Ram was present at Adda Mithra and was arrested. Accused Mula Ram led the police party to the place of occurrence, wherefrom upon the pointation of the accused blood-stained earth was secured vide memo. Exh.P.B. Accused also got recovered the dead body of the deceased along with ring P.1, Taveez P.2 and string of Taveez P.3, which were taken into possession vide recovery memo. Exh.P.C. Blood-stained earth and the articles P.1 to P.3 were sealed into separate parcels. Gidhu Ram and Heema Ram attested the recovery memos. He prepared the rough site-plan of place of occurrence Exh.P.H. On 12-10-1994, accused led to the recovery of blood-stained "Chhuri" P.4 from adjacent Ahata of his residential Kotha, which was taken into possession vide recovery memo, Exh.P.D. He also prepared site plan Exh.P.A./1 of the place of recovery of "Chhuri" P.4. On the same day, he also got recovered blood-stained Chaddar of the deceased P.6, Purse P.7, identity card of the deceased P.9 and currency notes of Rs,80, P.11/1-18', Hawai Chappal P.12, his own blood-stained clothes Shirt P.13, Shalwar P.14. These articles were taken into possession vide memo. Exh.P.F. He also prepared site-plan of place of recovery as Exh.P.F./1 He prepared inquest report Exh.P.G./2 and sent the dead body for post-mortem examination through Muhammad Aslam constable. He also prepared complaint under the Arms Ordinance regarding "Chhuri" and sent the same to the Police Station for registration of case. Gidhu Ram and Heema Ram witnessed the recovery of "Chhuri". Pertabia Ram and Budhu Ram also witnessed the recoveries. All the parcels were handed over to the Moharrir of the police station for safe custody and onward transmission to the concerned laboratories. He got prepared scaled site-plan of the place of occurrence in duplicate Exh.P.E. And Exh.P.E./1 from Amjad Ali Patwari and gave notes thereon with red ink. He recorded the statements of witnesses under section 161, Cr.P.C. At different stages. He found the accused guilty and submitted incomplete challan in Court on 16-3-1995.
4. Charge was framed against the accused on 9-10-1995 under section 302, P.P.C. To which he pleaded not guilty and claimed trial, whereupon prosecution was called upon to produce its evidence. An application was moved by the accused under section 227, Cr.P.C. For amendment of the charge with the assertion that as he had embraced Islam two months prior to the alleged occurrence, therefore, his earlier name Mula Ram, mentioned in the charge sheet be deleted and instead his name be written as Muhammad Abdullah alias Maula Bakhsh. Charge was accordingly amended on 2-4-1997.
5. To bring home the guilt of the accused, prosecution produced as many as 13. Witnesses.
6. P.W.1 Kala Ram was the informant and P.W.11 Wilayat Khan, S.-I. Was the investigator of the case.
Brief account of their depositions has already been given in paragraphs Nos.2 and 3 of this judgment respectively. P.W.3 Mangla Ram and P.W.4 Loona Ram deposed about extra-judicial confession. P.W.5 Heema Ram and P.W.8 Pertabia Ram stated about recoveries of certain articles.
Statement of P.W.2 Bhartia Ram was to the effect that during search of Rattu Ram deceased, he accompanied the informant to the house of accused. P.W.9 Arjan Ram stated that he had seen the deceased Rattu Ram in the house of the accused. P.W.6 Muhammad Aslam No,571/C, P.W.7 Amjad Ali Patwari, P.W.12 Abdul Majeed, A.S.-I. And Binyamim No,1421/C are formal witnesses, therefore, their statements need not be reproduced here. P.W.10 Dr. Irshad Ahmad Pirzada, Medical Officer, DHS, Bahawalpur deposed that on 9-10-1994, he conducted the post-mortem examination on the dead body of Rattu Ram deceased. According to his opinion which was formed after the receipt of report of Chemical Examiner, the death could have occurred because of the violence on the chest as the fractured ribs were found in the skeleton produced before him. In his cross-examination, he admitted that whatever was brought for post-mortem examination, was just a skeleton and there was no skin on any part of the body of the deceased. He further deposed that time elapsed between the death and post-mortem was between one to two months. However, he could not detect the time consumed between the injuries and death. Exh.P.G. Was the correct carbon copy of his postmortem report. Learned D.D.A. Gave up Gidhu Ram and Sonia Ram P.Ws. As unnecessary on 20-6-1998. Statement of accused under section 342, Cr.P.C. Was recorded on 4-6-1999. To the question as to why this case against him and why the P.Ws. Had deposed against him, he answered as under:-- "All the P.Ws .Are Hindus. No Muslim P.W. Produced before the Court against me. I embraced Islam some months before the lodging of the F.I.R. Due to the said reason Hindu Brothery became against me and got registered this case against me falsely.
7. Upon a miscellaneous application, prosecution was allowed to tender into evidence certain documents vide order, dated 23-6-1999, whereafter, prosecution produced report of Serologist Exh.P.I. And reports of Chemical Examiner Exh.P.J. And Exh.P.K. And closed its case on 25-6-1999.
Statement of the accused under section 342, Cr.P.C. Was re-recorded on 28-6-1999, putting questions with regard to the above mentioned reports. Accused did not produce any defence evidence nor he made statement on oath in terms of section 340(2) of the Cr.P.C. In disproof of the allegations levelled against him by the prosecution.
8. The learned trial Judge, after appreciating and evaluating the evidence brought on record in the light of the arguments of the learned counsel for the parties, through his judgment, dated 20-7- 1999 convicted and sentenced the appellant as mentioned above.
9. To prove the guilt of the convict/appellant, the prosecution has brought the following incriminating evidence against the appellant:---
(i) Motive;
(ii) Extra judicial confession; and
(iii) Recovery.
10. Motive. The motive for the murder of Rattu Ram deceased, as alleged in this case, was that Mula Ram accused wanted the hand of Mst. Bherki, sister-in-law of Rattu Ram deceased for his son but Rattu Ram refused to do so and instead he had given the hand of Mst. Bherki to one Hazari Ram alias Taidi. This motive, on the face of it, does not appeal to a reasonable mind. If Mula Ram accused wished to have the hand of Mst. Bherki for his son, he should have demanded same from the father or brother of Mst. Bherki and not from Rattu Ram. Answer of the prosecution could be that Mst. Bherki was living with and dependent upon Rattu Ram but this answer is also not plausible because there is no such evidence on record. It has not been brought on record that the parents or brother of Mst. Bherki were not alive or she was residing as dependant of Rattu Ram. It has also not been brought on record as to when, Mula Ram, appellant convict, had demanded the hand of Mst.
Bherki and when Mst. Bherki was married to Hazari Ram. Besides this, no of Mula Ram with Hazari Ram has been shown by the prosecution, so as to motivate Mula Ram to take the life of Rattu Ram, who allegedly had given the hand of Mst. Bherki to Hazari Ram. There is yet another aspect of the matter, which creates doubt about the set up motive. Had there been any enmity or between the two, there would have been no transaction of sale and purchase of buffalo. Therefore, the soundness of motive has not been ably proved by the prosecution.
11. Extra judicial confession. Extra-judicial confession has been tried to be proved through the statements of two P.Ws namely, Mangla Ram, P.W.3 and Loona Ram, P.W.4. The statements of both these witnesses have not fulfilled the requirements of the proof to prove the extra-judicial confession. The law has been settled and summed up by the Honourable Supreme Court of Pakistan in its latest authoritative judgment reported in PLD 2004 SC 250 Fazal Rahman v. The State and others with regard to judicial and extra-judicial confession. It is also a settled law that extra- judicial confession is the weakest piece of evidence to convict an accused solely on the basis of such evidence. It has to be corroborated by a cogent, convincing, impartial and independent evidence. From the examination of the statements of these two witnesses, we have not been able to find out that after about one month of the alleged occurrence, what had prompted the convict/accused to proceed towards those witnesses for making extra-judicial confession before them. Prosecution has failed to bring such kind of evidence on the record. It is strange and astonishing feature that one month having elapsed from the alleged murder of the victim and no one had cast doubt upon the involvement of the accused into such an incident, then what were those circumstances, which had compelled the convict/accused to visit these witnesses, to reveal and confess the alleged commission of offence before them. These two witnesses have not been shown on the record to hold any authority or of having some influence upon the legal heirs of the victim, to be able to get an apology or pardon from the heirs of the deceased for the accused. In another judgment reported in Muhammad Yousuf v. Muhammad Idrees and others 2004 M LD 910 this proposition was also propounded and decision pronounced. Sarfra'z Khan v. The State and 2 others 1996 SCM R 188 can also be referred to it. In the cross-examination of P.W.3, Mangla Ram has admitted that police had told him the date of murder of Rattu Ram alias Ratna Ram to be 10-9- 1994. Why the witness had made the query from the police for the date of murder of the deceased, when allegedly he and the others were the witnesses before whom the discovery of alleged murder had been unveiled. This fact displays the ignorance of the witness with regard to holding of any information about the occurrence. The next sentence of cross-examination is more astonishing when he is contradicted by his own plea of having knowledge of the period of one month after the murder having been told by him to the police and this fact not finding mention in his statement, recorded under section 161 of the Cr.P.C. The version of the prosecution that through these witnesses and upon their information, the police had commenced the action and had proceeded to the registration of F.I.R. And the investigation was conducted thereafter was belied. Both these witnesses are related to the deceased victim as well as to the complainant. It was unnatural that both these were told the occurrence separately on different places, but they had not shown any grief or abnormality in their actions although claiming close relations to the deceased. Both had let him go without asking from him any more details or reprimanding, admonishing or rebuking him.
There was no other person present to prove the presence of accused at both these alleged places of confession. No other had seen him to utter any such confessive words except but these two near relatives. Both these witnesses are related to the victim and to the complainant and it is also strange conduct shown by them that after having known the murder of Rattu Ram deceased, they let the accused proceed to any place, without asking him to accompany them to the legal heirs or to fix another date to approach them for getting the alleged pardon from the legal heirs of the deceased. P.W.4 when asked about the question as to whether accused had embraced Islam, he had shown his ignorance, which had gone to establish that the witness was not trustworthy as he could easily conceal and suppress a material fact. He could not be considered to have not known this important turn of the accused although this fact was admitted by P.W.3. As both the witnesses are related to the deceased as well as to the informant and there being no other corroborative evidence to prove their truth, the evidence of this extra-judicial confession cannot thus, be believed in the given circumstances.
12. Recovery. As regards the recovery is concerned, apparently the prosecution has tried to prove this fact with vehemence against the accused yet its complete and deeper understanding has turned the real surface out and into the innocence of the convict/appellant. The case of the prosecution is that on the pointation of convict/appellant the dead body of the deceased was recovered with a ring P.1 of the deceased, on which the name of the deceased was carved and Taveez, P.2 along with string P.3. Another is the recovery of "Chhuri", P.4, allegedly stained with blood.
It is an admitted fact that it is an unseen and unwitnessedl occurrence.
13. Whether "Chhuri" was used while committing the alleged murder of the deceased, was not proved by the prosecution through any cogent evidence P. W.10 Dr. Irshad Ahmad Pirzada had appeared but not a single question or sentence was asked by the prosecution as to whether broken nature of ribs were and could be the result of infliction of blows from the "Chhuri". Therefore, it cannot be held that the alleged H recovered "Chhuri" was the weapon of offence and used in the alleged murder occurrence. Moreover, it cannot be believed that "Chhuri" must have been kept by the accused with blood-stained earth in such a safe position and place so as to get it recovered even after one month of the killing of the deceased. Another material fact, which has led us not to believe this recovery, is as to why after two or three days of the alleged recovery of skeleton, the "Chhuri" was allegedly recovered? Why it was not got recovered on the day when alleged recovery of skeleton was made? There is no explanation as to why these three days had occurred in between the recovery of skeleton and to that alleged weapon of offence. It is in fact an afterthought implanted recovery to supplement the earlier scanty evidence. So, this recovery is not believable.
14. Before proceeding to discuss the recovery of dead body of the deceased and the articles of ring and Taveez, it would be beneficial to have a cursory look at the first information report. It is admitted fact that the aforesaid report was got registered after one month of missing of the deceased and it was also known to the informant, when he was reporting the occurrence to the police that his brother was allegedly murdered by appellant/accused. So, in these circumstances in the F.I.R., we find no mention that the ring and Taveez were also worn by the deceased when he had proceeded to the residence of the accused. Not a single other witness has stated that the deceased was wearing ring in his hand and having Taveez in his neck, when he had left his house to fetch the alleged amount of price of the buffalo. This important link is missing in the whole story of the incident, which gives an impression that no such ring or Taveez was ever carried away by the deceased and it was planted upon the accused to connect the recovered skeleton of unidentified origin allegedly from the sand dune, to make a linkage and to prove the identification of this skeleton.
15. These conclusions are supported from other facts also. The first information report, which was prepared by the police immediately after the recovery of a dead body is the inquest report. It is the report from which we gather the first hand information of the examination of the corpse and the things having happened thereon. We have examined that police in inquest report has not mentioned anywhere that such a ring or alleged Taveez was part of dead body or placed or found with the skeleton. So, the main stone in the building for identification is washed away by this material omission, if the fact of recovery of these articles was based upon truth.
16. There is yet another notable fact, which has created suspicion and doubt about the veracity of the recovery. There were two witnesses to the alleged recovery P.W.5, Heema Ram and other was Gidhu Ram. But the prosecution has failed to produce Gidhu Ram without any cogent ground. The statement of learned DDA that Gidhu Ram was unnecessary has in fact shown the doubt in the recovery. Due to non-production of other important witness, it is to be presumed that he was not ready and prepared to support the prosecution case.
17. After Gidhu Ram was given, up, the solitary statement of Heema Ram, P.W.5 does not inspire confidence, because according to this witness, the dead body was exhumed at the pointation of the accused, and he had identified the dead body. As regards the preparation of recovery memo.
And getting their thumb-marks on it, he has admitted that these thumb-marks were obtained by the police at the place of recovery as well as at the police station but has not been able to give out as to how much papers were thumb-marked by him. An important and material fact which has created mistrust in the verity of the statement of this P.W.5 is his deposition when he admits that dead body of the deceased was decomposed but skin was present on legs, hands and a small portion of chest. He has also stated that the deceased had a beard and a patch of skin with beard was still intact. But all these weighty facts have been contradicted from the inquest report as well as from the statement of Doctor Irshad Ahmad Pirzada appearing as P.W.10 in the trial Court.
According to the inquest report, there was only a skeleton of a human being. In the inquest report, Exh.P.G./2 the existence of skin on the above noted parts was not mentioned. From the statement of P.W.10, Doctor Irshad Ahmad Pirzada, in the cross-examination, he had admitted that whatever was brought for post-mortem examination was just a skeleton and there was no skin on any part of the body of the deceased. So, this important contradiction has smashed the case of the prosecution, with regard to the identification of the skeleton. As earlier pointed out the recovery of ring and Taveez having been disbelieved by us, there remains no evidence on the record to prove that the skeleton was of the deceased. After the above discussion, it can safely be held that prosecution has failed to prove beyond any shadow of doubt that the skeleton was that of Rattu Ram, the slain deceased.
18. It is a settled rule of criminal dispensation of justice that it is better to acquit ten guilty than to convict an innocent one. So, holding this principle and to keep on the safe dispensation of criminal side of justice, the benefit of doubt is extended to the appellant and he is acquitted of the charge of murder of Rattu Ram. Resultantly, impugned judgment, dated 20-7-1999 passed by the learned Additional Sessions Judge, Bahawalpur is hereby set aside by allowing this Criminal Appeal and answering the Murder Reference in negative. The appellant be released from jail immediately, if not required in any other case.