2020 P Cr (PLP)

SARDAR AHMED NAEEM, J.

Muhammad Asghar (appellant) was tried by the learned Addl. Sessions Judge (Juvenile Court) Jalalpur Pirwala in case FIR No.30, dated 30.1.2009 under sections 302, 364, 109, P.P.C. registered at Police station City Jalalpur Pirwala. At the conclusion of trial, vide judgment dated 05.6.2015, learned trial Court held the appellant guilty, convicted and sentenced him as under: (i) Under section 302(b), P.P.C.: Imprisonment for life as 'tazir' (ii) Under section 364, P.P.C.: imprisonment for life; Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to him.

2. The convicts-appellant has filed the instant appeal against his convictions and sentences.

3. Briefly history of the prosecution story as narrated in the FIR was that on 27.1.2009 at about 8.00 a.m., Muhammad Naeem (deceased) was present at his shop adjacent to the house. Appellant came there and took the deceased on some pretext. When Muhammad Naeem (deceased) did not return home till evening, his family members made telephone contact with him which was off. Then it was suspected that appellant had abducted Muhammad Naeem to deprive him from mobile phone and cash amount. Muhammad Iqbal Rab Nawaz and Muhammad Amin PWs witnessed the deceased in the company of the Muhammad Asghar (deceased). During the investigation, appellant confessed his guilt regarding commission of murder of Muhammad Naeem by giving him "Pakka" brick blows on his head and different parts of his body and got recovered the same. Consequently, offence under section 302, P.P.C. was added.

4. After usual investigation, the report under section 173, Cr.P.C. was submitted. The charge was framed against him. He pleaded not guilty and claimed trial.

5. In order to prove its case, prosecution examined as many as 19 witnesses including Saeed Ahmad (PW.1), Habib-Ur-Rehman (PW.2) Muhammad Arif (PW.3), Abdul Razzaq 2252-HC (PW.4), Dr. Muhammad Arshad (PW.5), Allah Nawaz 1606-C (PW.6), Hafeez Ahmad (PW.7), Muhammad Aslam (PW.8), Muhammad Iqbal (PW.9), Muhammad Sadiq (PW.10) Rab Nawaz (PW.11), Muhammad Amin (PW.12), Haji Muhammad (PW.13), Abdul Rahim (PW.14), Iqbal Hussain (PW.15), Muhammad Ramzan (PW.16), Bashir Ahmad S.I (PW.17), Riasat Ali S.I (retired) (PW.18), Nauman Ashraf Bodla (PW.19) and Ghulam Mustafa T/ASI (PW.20). Prosecution gave up PWs namely, Muhammad Sharif 682-C, Liaquat Hussain, Ijaz Hussain and Mazhar Hayat Hiraj Inspector being unnecessary and after tendering into evidence the reports Exh:PO, Exh.PR and Exh.PS closed the prosecution case.

6. Statement of the appellant was recorded under section 342, Cr.P.C. He denied all the prosecution allegations and pleaded innocence. Responding to question "why this case against him and why the PWs have deposed against him" (appellant) deposed as under: "Actually, I and my brothers were working under the supervision of the complainant who was a Garden contractor at Sargodha. He did not give us the wages to me and my brothers namely Akram, Aslam and they worked under the supervision for a period of about six months. When I demanded our wages, an other brother of the complainant give beating to me, as a result of which I left the job and came to my home. Due to said grudge, the complainant of the case falsely involved me and my father in this case. PWs are inter-se related with each other and they have deposed falsely against me in connivance with the complainant."

7. Appellant neither appeared as his own witness under section 340(2), Cr.P.C. nor produced some witness in his defence.

8. Learned counsel for the appellant contended that no direct evidence was available against the appellant; that the case of prosecution is entirely based on circumstantial evidence and important links of chain are missing, thus, conviction cannot be sustained in the circumstances; that co-accused of the appellant tried separately but was acquitted on the same set of evidence, thus, the appellant is also to be treated alike; that confession before police was inadmissible; that the medical evidence is in conflict with the version of the PWs; that the recoveries also lend no support to the prosecution; that the evidence of last seen was also inconclusive and weak; that the learned trial Court misread/ misinterpreted the evidence available on record; that the prosecution miserably failed to prove its case beyond reasonable shadow of doubt and that the case of prosecution was full of doubts and every doubt even slightest is always resolved in favour of the accused.

9. Learned Deputy District Public Prosecutor assisted by the learned counsel for the complainant opposed this appeal with vehemence and submitted that the complainant has got no reason for false implication of the appellant; that he led to the recovery of dead body and pointed out the place of occurrence, Fard Nishandahi was prepared followed by recovery of "Pakka" brick; that the medical evidence was also in line with the possession evidence; that the evidence of last seen further strengthened the prosecution case; that the contradictions/ discrepancies if any do creep up with the passage of time; that the substitution in such like cases is a rare phenomenon. Concluding the arguments, it was submitted that the prosecution proved its case against the appellant beyond reasonable shadow of doubt and that they supported the judgment rendered by the learned trial Court .

10. I have considered the points raised at the bar and have gone through the record.

11. The case of prosecution was that on 27.1.2009, the deceased, namely, Muhammad Naeem was taken away from his shop at 8.00 a.m. by the accused on some pretext. At that time, Muhammad Iqbal (PW.9) was sitting at the shop of the deceased, thereafter, Rab Nawaz (PW.11) met the deceased as well as the accused in Basti Nai Wala on the same day at 8.15 a.m. They claimed to have seen the deceased in the company of the accused but they informed the complainant after about 3/4 days on 30.1.2009.

12. The complainant got recorded his Statement (Exh.PB/1) and reported the incident against the appellant. Later on, his father, namely, Muhammad Rafique was also nominated through a supplementary statement being abettor of the occurrence. The appellant was statedly a friend of the deceased, who took the deceased away from his shop on the pretext that he had a stolen cell phone lying in a room of tube-well of one Ghulam Farid at Omer Pur. The appellant, allegedly, threw the deceased in a blind well while he was sitting, on the wall of well. Thereafter, the appellant went inside the well, inflicted different injuries with "Pakka" brick (P. 5), got recovered after his arrest.

13. Investigating Officer, namely, Bashir Ahmad S.I was examined as PW.17. He arrested the appellant on the same day and on his disclosure got recovered the dead body of the deceased, then lying in a blind well followed by recovery of "Pakka" brick with which he inflicted various blows on the body of the deceased. The prosecution evidence further revealed that the accused after his arrest in presence of Rab Nawaz and Muhammad Amin (PW.11) and (PW.12) while in police custody confessed his guilt and described that he wanted to snatch money of the deceased, sent to him by the complainant for payment to the garden labour. The entire evidence of the prosecution connecting the appellant with the commission of this offence is in the form, of last seen, recovery and confession. Under Article 39 of the Qanun-e-Shahadat, confession by accused of his guilt under custody of the police which is not made in the presence of magistrate, in the absence of any strong corroborative piece of evidence is of no legal value. In the present case, admittedly, the appellant confessed his guilt when he was being interrogated by the police after his arrest, thus, this piece of evidence cannot be used against the appellant. The trial Court has miserably failed to understand rather to distinguish between the Articles 38 and 39 of the Qanun-e-Shahadat. The evidence of last seen in this backdrop is unrealistic and flawed. The appellant pointing out the place of occurrence in police custody and a memo. in support thereof also. cannot be admitted in evidence. A piece of circumstantial evidence must come from an unimpeachable source with such quality which must exclude every hypothesis of innocence. One weak piece of evidence cannot corroborate another. The circumstantial evidence must constitute a nexus through a chain of circumstances linking the crime with the culprit and, thus, recovery and last seen cannot sustain the charge as it sans proximity in time and space.

14. The second limb of the prosecution case is recovery of crime weapon "Pakka" brick (P.5). It was in the evidence that the appellant went inside the well and inflicted injuries to the deceased with "Pakka" brick. The medical officer observed nine injuries on the body of the deceased. Injuries Nos. 5 to 9 were caused by a sharp edged weapon. The cause of death was Injury No. 1, also an incised wound. The medical evidence may confirm the seat and time of injuries but cannot connect the accused with the crime in the absence of any other direct or corroborative evidence. There is also nothing on the file that the brick was used/caused the death of the deceased. It is also imperative to note that recovery of article cannot be termed as discovery, when it was not recovered from any hidden place and if in normal course, the Investigating Officer/agency was able to see it and take its possession without any statement of the accused for pointing it out. Reference in this context can be made on "Mst. Askar Jan and others v. Muhammad Daud and others" (2010 SCMR 1604).

15. So far, conviction and sentence recorded under section 364, P.P.C. is concerned, I find in evidence no use of force against. Muhammad Naeem, in particular, when he on the call of accused accompanied him from his shop on 27.1.2009, in my view no case of abduction within the ambit of section 364, P.P.C. could be therefore, made out against the appellant and as such, the conviction recorded under section 364, P.P.C. cannot be sustained.

16. The prosecution case suffers from certain infirmities/illegalities on the basis whereof conviction/punishment recorded against the appellant is not sustainable. Hence, it can safely be concluded that the prosecution case being full of doubts is not worth of credence for holding conviction in view of the judgment rendered by the apex Court in the case titled "Falak Sher alias Sheru v. The State" (1995 SCMR 1350), therefore it is clear that it is a case of no evidence against the appellant and conviction and sentence is not sustainable.

17. In view of above, the appeal is allowed. The convictions and sentences of the appellant are hereby set aside and he stands acquitted of the charges. He is in Jail be released forthwith if not required in any other criminal case. The record of the learned trial Court be sent down immediately. SA/M-154/L Appeal allowed.