1982 P Cr (PLP)

AAMER RAZA A. KHAN, J.--Sarfraz son of Maula Dad who was alleged to be empty-handed and Muhammad Amjad alias Ajmal, son of Muhammad Hussain, aged 28 years, allegedly armed with churri and stated to be a servant of Sarfraz his co-accused were charged under section 302, P. P. C. for having committed the murder of Ch. Zahoor Ahmad son of Haji Ghulam Rasool, aged 58 years in furtherance of their common intention. By judgment and order, dated 30th January, 1978, the Additional Sessions Judge, Gujranwala, allowed benefit of doubt to Sarfraz accused and found the appellant Amjad guilty of having committed the offence as charged and convicted him and sentenced him to death and a fine of Rs. 300 or in default of payment of fine to undergo R. I. for 1 years. It was directed that the amount of fine if realized shall be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.

2. Amjad appellant has filed Criminal Appeal No. 199 of 1978 against his conviction and sentence and the trial Court has forwarded Murder Reference No. 136 of 1978 to this Court for confirmation of the sentence. This judgment will dispose of Criminal Appeal No. 199 of 1978 as well as Murder Reference -No. 136 of 1978.

3. The occurrence is alleged to have taken place on 22nd September, 1973, on the Government Camping Ground, Hafizabad, in front of the shop of one Mian Noor Hussain, at a distance of 3 furlongs from Police Station, Hafizabad, District Gujranwala. The body of the deceased was found lying with a knife stuck in its back, by Rafaqat Hayat, the informant, P. W: 12, who is a neighbourer of the deceased. The statement of the informant, Exh. P. D. was recorded at 8-10 p.m. on 22nd September, 1973, at the Bus Stand, Hafizabad, by A.S.-I. Nauroze P. W. 16, who was present there on patrol duty. After taking down the afore-referred state ment, it was forwarded to the Police Station, where F. I. R., P. D./1 was recorded by A.S.-I. Mehdi Zaman, P. W. 2 at 8-20 p.m.

4. The F. I. R. does not disclose any motive for the commission of the offence it being an unwitnessed occurrence. The deceased's body was discovered by Rafaqat Hayat P. W. 12 at 7-30 p.m. when after having his meals, the informant had come out of his house for a stroll. How ever, evidence of the motive can be gathered from the statements of Shaukat P. W. 6 a maternal nephew of the deceased, Muhammad Akbar P. W. 10 a son of the deceased and Muhammad Aslam P: W. 11, also a son of the deceased. The motive as disclosed by these witnesses is against Sarfraz accused (since acquitted). Reference to the motive will be made in a later part of this judgment. There is no evidence of the deceased having been last seen with any one. The case against the appellant is mainly based on circumstantial evidence and on the alleged extra judicial confession made by him before P. W. 13 Jehan Khan, P. W. 14 Riasat Ali and one Muhammad Hussain who was not produced as witness by the prosecution. The prosecution also sought to prove its case by the recovery of cycle P. 1 and handle of knife P. 3 recovered from the spot vide recovery memo, Exh. P. A. and the knife Exh. P. 4 which was found thrust in the back of the deceased and was taken into possession vide, Exh. P. N., after the post-mortem of the body of the deceased.

5. After recording the statement of Rafaqat Hayat, P. W.

12. A. S. I. Nauroze Ali P. W. 16 who was on patrol duty at the Bus Stand proceed ed to place of occurrence and took down notes which are Exh. D. C. Thereafter he took into possession blood-stained earth vide recovery memo Exh. P. B. which was witnessed by the informant and one Dost Muhammad not produced as a witness. He thereafter took into posses sion the cycle P. 1 and the handle of the knife P. 3 afore-referred as well as a cap P. 2, vide recovery memo. Exh. P. A. which also was attested by the afore-referred two witnesses. After recording the state ments of the persons present at the spot, the Investigating Officer pre pared the injury statement of the body of the deceased, Exh. P. K. as well as the Inquest Report, Exh. P. J. and sent the dead body to the mortuary. After the post-mortem the Investigating Officer took possession of the clothes found on the body of the deceased, Exh. P: 5 and P. 7, as well as the churri P. 4 afore-referred, vide, recovery memo. Exh. P. N. He there after got the site plan, Exh. P. O. prepared by Muhammad Ibrahim, P. W.

3. The investigation was thereafter handed over to S. I. Muhammad Aslam P. W. 15 who it appears partly investigated the case for 4 days, when the investigation was transferred to the Crime Branch of the Police under the directions of the Inspector-General. Further investigation teas carried out by D. S. P. Ch. Muhammad Zaman, P. W. 17, who it appears was entrusted with the investigation in October, 1973. He visited the spot for the first time on 25th November, 1973 and thereafter on 18th December, 1973. Riasat Ali P. W. 14 and Muhammad Hussain (P. W. not produced) regarding the extra-judicial confession made before them by Amjad appellant arrested the appellant who was produced before hint. The record does not show the manner or date of arrest of Sarfraz accused. He completed the investigation and challaned both the accused for the murder of Zahoor Ahmad deceased.

6. The accused in their statements before the trial Court denied the charges against them. Sarfraz denied that Amjad co-accused was his friend or was in his employment or that he had developed illicit friendly relations with Muhammad Aslam P. W. 11, son of the deceased on which account he was stopped from meeting Muhammad Aslam P. W. but that he continued his contact with him. He denied that the deceased had reprimanded him for his relationship with his son Muhammad Aslam P. W. and that in retaliation be had threatened the deceased, or that prior to the occurrence whilst in the company of Muhammad Aslam P. W. he had unsuccessfully fired at the deceased. He also denied that he got one Bashir Machi engaged as a servant in the house of the deceased in order to keep a liaison with Muhammad Aslam P. W., that Bashir Machi committed a theft in the house of his employer, that he had provided Bashir Machi with a pistol to kill the deceased but before he could do so he was turned out of the house by the deceased. He also denied that he had burnt the crops of the deceased 4 months prior to the present occurrence or that 2 or 3 months earlier to the occurrence when he and one Manzar came to the house of the deceased in order to take Muhammad Aslam P. W. outside, he threaten ed the deceased with dire consequences as the deceased refused to allow his son to accompany him. He denied that he had given an amount of Rs. 300 to Amjad co-accused to purchase a pistol to kill the deceased and on his failure to do so, had asked his co-accused to arrange for a knife or a dagger to kill the deceased. He denied that Amjad co-accused had got churri, P. 4 and wooden handle P. 3 prepared from Muhammad Bashir P. W . 7 and Muhammad Idrees P. W. 8 respec tively, and that he had prepared a plan to murder the deceased in collaboration with Amjad co-accused, and that pursuant to the plan Amjad co-accused had hired a cycle from the shop of Muhammad Tufail P. W. 5 and on the evening of 22nd September, 1973, when on the look out for the deceased pointed out the deceased to his co-accused Amjad, and directed him to follow and kill the deceased when he happened to pass by. He denied that the deceased had been killed by Amjad co-accused on his asking. He stated that the witnesses were deposing against him on account of enmity. In his statement before the Court, Amjad appellant denied that Sarfraz was either his friend or employer, and stated that he knew nothing about the alleged liaison between Sarfraz co-accused and Muhammad Aslam P. W.

11. He also denied that he had been hired by Sarfraz co-accused to kill Zahoor Ahmad, who had given him a sum of Rs. 300 to purchase a pistol in order to kill the deceased and after having -failed to do so had been asked by Sarfraz co-accused to get a knife or a dagger for this purpose and that he had got prepared churri P. 4 from Muhammad Bashir P. W. 7 and wooden handle P. 3 from Muhammad Idrees P. W.

8. He further denied that he had hired a bicycle from the shop of Muhammad Hanif through his servant Muhammad Tufail P. W. 5, or that he was on the look out for the deceased on the evening of 22nd September, 1973 and when the deceased happened to pass by he was pointed out by Sarfraz co-accused and that thereafter he went after the-deceased on a bicycle and pounced upon him in the Government Camping Ground, and inflicted blows upon him with churri, P. 4, whereupon the deceased fell on the ground and died. He denied that be left his cycle in a hurry and made good his escape and also denied that the churri, P. 4 and handle P. 3 belonged to him. He further denied having made any extra-judicial confession on 17th December, 1973, before Jahan Khan P. W. 13 or on 18th December, 1973 before Riasat Ali P. W. 14 or of having accompanied them and Muhammad Hussain P. W. to Lahore where they produced him before D. S. P. Ch. Muhammad Zaman P. W.

0. He further denied that he was arrested on 18th December, 1973 and stated that he had been arrested from his house and stated that he had been involved in the case on account of enmity.

7. As already had been noted the co-accused of the appellant was acquitted by the trial Court, which held that the prosecution had failed to establish the guilt of Sarfraz accused beyond doubt. Hs was given benefit of doubt and acquitted, as in the view of the trial Court there were strong reasons to believe that the family of the deceased was fed up with Sarfraz accused, as he had spoiled Muhammad Aslam P. W. 11 by committing carnal intercourse with him against the order of nature, and that in the circumstances the possibility of his implication at their instance could not be ruled out. No appeal has been filed by the State against the acquittal of Sarfraz accused, who according to prosecution had motive to kill the deceased and who had for this purpose engaged the appellant.

8. It will be seen that the case against the appellant is based mainly on the medical evidence, recovery evidence, circumstantial evi dence, and the alleged extra-judicial confession. There are no witnesses to, the occurrence.

9. Dr. Muhammad Sadiq Chaudhari, P. W. 1 performed the post-mortem at Civil Hospital, Hafizabad, at 9. 00 a. m. on 23rd September, 1973 on the dead body of the deceased, and his report is Exh. P. C. Exh. PC/ 1 is a pictorial representation of the injuries. According to the post mortem report the following injuries were found on the body of the de ceased:- (1) Transverse incised wound 1 " x 4" x 6," on right side loin directed downwards and forwards touching iliac crest, 2 away of mid line and 7 above back to anterior superior iliac-spine. (2) Transverse incised wound, l x 1 x 6" left back lower part chest 2" away mid-line and 7" below from lower angle of left scapula directed downwards and medially with cutting weapon in the wound. (3) Transverse incised wound 1 x 1 x 1 on side of left chest 6" away dorsal spine 4", down and out lower angle left scapula. (4) Incised superficial wound reversed L type (J) 3" x 1/6 x skin deep 1/8" down to-injury No. 3. (5) Stab wound 1 x abdominal cavity deep 2 down to injury No. 3. (6) Transverse stab wound 2 x. abdominal cavity deep with protrusion of large and small gut on right side lower part abdomen one inch above night anterior superior iliac spine. According to P. W. 1 death was due to injury No. 5 which caused wound in spleen, small and large intestines and the diaphram and the right lung. As has already been noted, the knife Exh. P. 4 was found struck in the body of the deceased and was taken into possession by the Investi gation Officer after the post-mortem examination. From the medical evidence it is evident that the death of the deceased was caused on account of the injuries sustained by him by knife Exh. P. 4 found in his body. As has also been noted handle Exh. P. 3 was found near the dead body of the deceased and according to the prosecution this was the handle of knife found struck in the body of the deceased.

10. The recoveries effected in this case comprise of a cap of the deceased P. 2, cycle P. 1 alleged to have been used by the appellant for chasing and attacking the deceased, handle P. 3 found at the place of occurrence, knife P. 4 found struck in the body of the deceased, and the last worn clothes of the deceased Exhs. P. 5 to P.

7. Also, a register of cycle Exh. P. Q./1 and P. Q./2 taken into possession from the shop of Muhammad Hanif and handed over to the Police by Muhammad Tufail P. W. 5 which contained an entry dated 21st September, 1973 showing that the appellant had taken a cycle on hire for two days. It is significant to note here that according to P. W. 5 Muhammad Tufail, the cycle was returned on 29th September, 1973 vide entry Exh. P. Q./2. It appears to be the case of the prosecution that cycle P. 1 was the very bicycle used by the appellant for the purpose of chasing the deceased and was found lying at the place of occurrence. According to .the prosecution it was taken into custody vide Exh. P. A. on 22nd September, 1973. In these circumstances it is not understandable how an entry showing the return of the bicycle is made in the register on 23rd September, 1973. Besides, we have had occasion to examine the original register Exh. P. Q. and we are not satisfied that the register is one maintained in the regular course of business. All entries appear to have been made in the same ink at the same time. For the reasons afore-noted no reliance can be placed on the entries Exh. P. Q./1 and P. Q./2. Also it is significant to note that no particulars are given of the make or number of the bicycle allegedly borrowed by the appellant. Further, the bicycle Exh. P. 1 was not even shown to Muhammad Tufail P. W. 5 nor was it identified as the bicycle which bad been used by Amjad appellant. In these circumstances, the recovery of the bicycle from the place of occurrence is of no consequences. In so far as the recovery of the knife P. 4 and its handle P. 3 is concerned, they do not implicate the appellant. As already noted the handle was recovered from the spot and the knife was found stuck in the body of the deceased. The recoveries were not effected at the instance of the appellant. However, it was alleged by the prosecution that the appellant had identified the shop of Muhammad Bashir P. W. 7 from where he had got the knife P. 4 prepared, and in this context reliance was placed on memo Exh. P. F. dated 22nd September, 1973. The prosecution also alleged that the handle of the knife Exh. P: 3 was got prepared from the shop of Muhammad Idrees who had identified it as the handle he had prepared for Amjad appellant. A reference to Exh. P. F. shows that according to it the appellant identified the shop of Bashir P. W. 7 on 22nd September, 1973 whilst in the custody of the Police. This on the face of it cannot be believed for according to the prosecution the appellant was not arrested till 18th December, 1973. This evidence, therefore, cannot be relied upon.

11. We now come to the extra-judicial confession allegedly made by the appellant before Riasat Ali P. W. 14, Jahan Khan P. W. 13 and Muhammad Hussain, who has not been produced as a witness. Accord ing to Riasat Ali P. W. 14, he first met the appellant about one month prior to 17th December, 1973 where the appellant came and told him that he had murdered the deceased and wanted his help. According to this witness, the appellant had informed him that he bad friendly relations with the son of the deceased and Sarfraz co-accused, and the latter had given him Rs. 300 to do away with the deceased by purchasing a pistol. On his .failure to purchase the pistol, he managed to get one `churri' prepared and killed the deceased at the Government Camping Ground, Hafizabad. According to this witness the appellant had further told him that on the day of occurrence his co-accused Sarfraz had pointed out the deceased to him, whereafter he had followed the deceased and given him the knife blows. The knife remained stuck in the body of the deceased and the handle was left in his hand, which he threw away at the spot. The appellant then asked Riasat P. W. 14 to produce him before the Police but was advised to come on the next day. On the following day according to this witness Jahan Khan P. W. 13 and Muhammad Hussain had come to his dera to purchase a buffalo. He told them of the statement of Amjad appellant and during this conversa tion Amjad appellant came and narrated the whole story of the murder. Thereupon the three took the appellant to the Crimes Branch at Lahore and produced him before the Police. According to Riasat P. W. 14 he was not acquainted with Jahan Khan or Muhammad Hussain, Further, he was a resident of Qila Desa Singh, which is situate at a distance of 10 miles from Gujranwala and had taken a Idera' near Sheranwala Bagh, Gujranwala City, for the purpose of conducting his business. In his cross-examination he stated that Amjad came to him on the second day of his own, without being called, and that the appellant did not tell him or the other two persons about the place from where he bad got the knife made, nor did he tell them the name of the `Mistri'. It will be noted that Riasat P. W. 14 did not know Amjad till about one month before the alleged confession. In his statement he does not even reveal the manner in which he got to know the appellant and also does not give any reason as to why the appellant should have approached him. Jahan Khan P. W. 13 the second witness of the extra-judicial confes sion, is a resident of Chak Chatha, near Hafizabad. He stated that he went to Gujranwala on 18th December, 1973 to purchase a buffalo from Riasat Ali P. W. He admitted having visited tile 'dera' of Riasat P. W. for the first time on that day, and stated that after he reached the said 'dera' the.. appellant came there and told them of his having committed the murder at Hafizabad, and on their enquiry told them that he was employed with Sarfraz who -had given him Rs. 300 and had asked him to buy a pistol to kill one person, but on his being unsuccessful. Sarfraz accused had promised to give him Rs. 10,000 and a Rickshaw, for doing away with the deceased, who was the father of Aslam P. W., with whom Sarfaz accused had friendly relations which the deceased was resisting. He said that the appellant further told them that on the day of occurrence he had killed the deceased about '7.30 or 8-00 p. m. on the Government land at Hafizabad by inflicting 4/5 'churri' blows and that he had left the knife thrust in the body of the deceased and had thrown the h-on the ground and ran away. This witness who is an owner of 7 squares of land near Hafizabad, cLalms to -have gone to the `dera' of Riasat Ali P. W., to purchase a buffalo and admittedly he went there for first time. He does not expLaln how he knew Riasat P. W. and why he went to his `dera' for the purchase of a buffalo, all the way from near Hafizabad, i. e. a distance more than 30 miles. He admitted that he did not purchase any buffalo from Riasat. Muhammad Hussain, the third witness of the extra-judicial confession has not been produced. Neither of these two witnesses have explained why the appellant came all the why to Gujranwala to make the extra-judicial confession before them, when he admittedly did not know them. Neither did Jahan Khan P. W. 13 satisfactorily expLaln why he went to the dera' of Riasat P. W.

14. It is not alleged that the accused men tioned his having got prepared knife Exh. P. 4 from Bashir P. W. 7, or handle Exh. P. 3 from Muhammad Idrees P. W. 8. or of his having hired a bicycle from the shop of Muhammad Tufail P. W.

5. Further it does not appear that the appellant told Riasatf Ali that he had been given Rs. 300 for the purchase of a pistol by Sarfraz accused. In this context learned counsel has drawn attention to memo. Exh. P. E., P. F. and P. G. all three of which are dated 22nd September, 1973, and according to which, the appellant whilst in the custody of the Police, on 22nd September, 1973 identified the place of occurrence, the shop of Muhammad Bashir P. W. 7 from where the knife P. 4 was got prepared and the shop of Muhammad Hanif from where he took the cycle on hire. According to the prosecution the appellant was produced before D. S. P. Muhammad Zaman P: W. 17, for the first time on 18th December, 1973 and was arrested on that date. In these circumstances, there is some basis for the argument of learned counsel for the appellant, that it is evident that the appellant was already in the custody of the Police and that the extra-judicial confession was manipulated later on. Also in our view the witnesses to the extra judicial confession do not appear to be worthy of reliance.

12. According to the prosecution this was an un witnessed murder and the conviction of the appellant is sought to be got sustained on the basis of the evidence of the recovery, circumstantial evidence and the extra-judicial confession which has been examined and commented above. We are of the view that this evidence does not irrefutably connect the appellant with the offence and further that on the basis of the record the appellant is entitled to the benefit of doubt. We according) acquit him of the charge of having committed the murder of Zahoo Ahmad and accepting the appeal do not confirm the sentence of death recorded by the-Additional Sessions Judge, Gujranwala. Appeal allowed.