2001 P Cr (PLP)

Date of hearing: 17th May, 2000. MIAN MUHAMMAD NAJUM‑UZ‑ZAMAN, J.‑‑‑ The respondents namely Abdul Rasheed and Abdul Ghaffar were tried by the learned Additional Sessions Judge, Rahim Yar Khan in case F.I.R. No.286 of 1997, dated 4‑7‑1997 registered under sections 302/364/34, P.P.C. at Police Station City Khanpur, District Rahim Yar Khan for the murder of one Amanat Ali alias Malkoo who vide order, dated 25‑8‑1998 by giving the benefit of doubt acquitted both the respondents.

2. Being aggrieved by the impugned judgment, the complainant of instant case namely Mst. Zuhran Mai has filed this appeal against the acquittal.

3. Upon the statement of Mst. Zuhran Mai case F.I.R. No.286 of 1997; Exh. P.D. was registered at the Police Station City Khanpur wherein she narrated that "I am residing in Canal Colony alongwith my husband. On 23‑2‑1997 at about 3‑00 p.m. 1 alongwith my husband Ghulam Hussain and my son Amanat Ali alias Malleoo aged about 13/14 years was present at home. Abdul Ghaffar son of Faqir Bakhsh and Abdul Rasheed son of Khan Muhammad both Sheikh by caste resident of Canal Colony, Khanpur came and escorted my son Amanat Ali alias Malkoo alongwith them for a walk. When my son Amanat Ali did not turn up in the evening time, I alongwith my husband Ghulam Hussain started the search of Amanat Ali alias Malkoo. During search, Muhammad Aslam, Tubewell Operator, Building Department, Khanpur and my son Rang Ali who is also employee of Building Department told us that at nearly 7‑00 p.m. they had seen Amanat Ali alias Malkoo alongwith Abdul Ghaffar and Abdul Rasheed while going near the office of Building Department. My husband Ghulam Hussain alongwith Muhammad Aslam and Rang Ali P. Ws. went to Abdul Ghaffar and Abdul Rasheed and enquired about Amanat Ali alias Malkoo but they, put the matter off and on. During search, we found the dead body of Amanat Ali in watercourse. We could not find out the cause of death of Amanat Ali, therefore, we did not initiate any proceedings by considering his natural death and did not get post‑mortem examination conducted upon his dead body. After some days we came to know that Abdul Ghaffar and Abdul Rashid abducted Amanat Ali alias Malkoo for the purpose of committing unnatural offence with him, but when my son Amanat Ali resisted, both the accused after committing his murder threw the dead body. in the watercourse. Then I submitted an application to the Deputy Commissioner to disinter the dead body. On my application, the dead body was exhumated and post mortem examination was conducted. Abdul Ghaffar and Abdul Rashid abducted my son Amanat Ali with the intention to commit unnatural offence with him, but on his resistance they committed his murder. Necessary action betaken.

4. The case was investigated by Muhammad Naveed Akram, S.‑l./ P.W.8, who arrested the respondents on 20‑7‑1997 and after completing all legal formalities, submitted the challan before the learned trial Court.

5. During the trial, prosecution produced eight witnesses in support of its case.

6. Dr. Shahid Saleem, P.W.1, under the orders of District Magistrate, Rahim Yar Khan after the exhumation of dead body conducted the post mortem examination and gave his opinion that the deceased had died due to asphyxia due to throttling. The injury on throat was ante‑mortem and was sufficient to cause death in the ordinary course of nature. Mst. Zuhra Mai, P.W.2/complainant, supported the version narrated by her in the F.I.R. Rang Ali, P.W.3 real brother of the deceased, who narrated about seeing the deceased. In the company of both the respondents. Faqir Muhammad, A.S.‑I./P.W.4, partly investigated this case and during the investigation, he arrested both the respondents, Muhammad Aslam, P.W.5, was the witness of last‑seen but he did not support the prosecution case before the learned trial Court and was declared hostile. Muhammad Sarwar, Inspector/P.W.6, partially investigated this case. Nasir Mehmood Patwari/P.W.7 prepared the site plan Exh.P.E. and Exh.P.E./1 on the pointation of P.Ws. and Muhammad Naveed Ikram, S.‑I./P.W.8 conducted the investigation of this case.

7. The respondents were also examined under section 342, Cr.P.C. wherein they had denied the allegation levelled against them. None of the respondents made any statement under section 340(2), Cr.P.C. nor produced any defence evidence.

8. With the assistance of learned counsel for the appellant, we have perused the record of this case as well as have gone through the impugned judgment of the learned trial Court. There is no direct evidence against the respondents and the only evidence to prove the charge against the respondents relied upon by the prosecution is the last‑seen evidence. Mst. Zuhran Mai, P.W.2/complainant/mother of the deceased and Rang Ali, P.W.3/real brother of the deceased had narrated about this fact. According to the prosecution case deceased went alongwith the respondents and when he did not return home till the evening time, the witnesses started searching the deceased and ultimately found the dead body lying in the watercourse. Not only Muhammad Aslam, P.W.5/an independent witness, did not support the prosecution on this score, even Rang Ali, P.W.3, also did not narrate in his statement under section 161, Cr.P.C. about seeing the deceased in the company of the respondents and made improvements before the learned trial Court where he was confronted with his previous statement. The perusal of the evidence on record shows that the conduct of these witnesses was very unnatural. Had they knew that the deceased had gone with the respondents, that they should have straightaway gone to the house of the respondents in order to enquire about the deceased instead of searching for him hither or thither or they should have lodged a report with the police immediately thereafter. Similarly, after the recovery of dead body no marks of violence was found on the same and it was burried, but after the lapse of 26 days the dead body was disintered for the purpose of post‑mortem examination and to find whether the deceased was subjected to unnatural offence. The prosecution case is silent as to how and under what circumstances the witnesses came to know about the fact that the respondents attempted to commit sodomy upon the deceased and upon his resistance, he was murdered by them. Since there is a big vacuum in the case of the prosecution, the respondents were rightly given the benefit of doubt in the circumstances of this case.

9. The learned counsel for the appellant has failed to point out any illegality by way of misreading or non‑reading of the evidence by the learned trial Court warranting interference by this Court in its appellate jurisdiction. Finding no force in this appeal, same stands dismissed in limine. H.B.T./Z‑52/L Appeal dismissed