2001 PLP 2234(2) (YLR)

P.W.7 Abdul Ghani complainant of the crime report, furnished ocular account of the occurrence. He in a nutshell reiterated contents of the F. I. R. (Exh.P.D.1). P.W.9 Muhammad Ashiq deposed that on 1‑5‑1990 Amanat Ali, M.H.C. (P.W.11) handed over to him three sealed parcels containing blood‑stained earth, last worn‑clothes of the deceased for their onward transmission to the office of Chemical Examiner, Lahore and he accordingly did so on the following day. P.W.10 Muhammad Rafiq deposed that on 15‑4‑1990 the appellant came to him and stated that he had committed murder of Mst. Manzooran Bibi for the reason that a promise had been made with him to give her hand, but she was engaged with one Sarwar. He further deposed that on 17‑4‑1990 when he reached his residence, he came to know that dead body of Mst. Manzooran Bibi recovered and accordingly he made statement before the police. P.W.11 Amanat Ali, H.C. while working as Muharrir received sealed parcels containing blood‑stained clothes of the deceased, blood‑stained soil and Chhurri, from the Investigating Officer for keeping them in the Police Station Godown and for their onward transmission to the relevant quarters, who accordingly deputed Muhammad Ashiq, constable (P.W.9) for doing the said job. As long as said parcels remained in his custody, nobody tampered with them. As Dr. Farooq Mustafa, who conducted autopsy upon dead body. of Mst. Manzooran Bibi has gone abroad, as per statement of Allah Ditta, constable (C.W.1) and Muhammad Jameel, Process Server (C.W.21), Muhammad Shah, Senior Clerk‑cum‑Record‑Keeper (P.W.13) appeared to testify his handwriting and signatures on the post‑mortem examination report. Exh. P.I. is the correct carbon copy of the post‑mortem examination report, whereas Exh.P.1/1 is pictorial diagram showing the locale of injuries. Both the documents bear signatures of the doctor, which were duly identified by this witness.

7. Learned Prosecutor gave up Ali Muhammad, Nawab Din, Shaukat Ali and Haq Nawaz, MHC. being unnecessary and after tendering in evidence reports of the Chemical Examiner Exhs.P.I and P.J and those of the Serologist Exhs.P.K. and P.L., declared the prosecution case close.

8. After the prosecution had availed of full opportunity of producing its evidence, the appellant was examined under section 342, Cr.P.C. in order to afford him an opportunity of explaining the incriminating circumstances appearing in evidence against him. He not only denied correctness of allegations levelled against him, but also in an answer to question "why this case against you and why the P.Ws. have deposed against you?" stated as under:‑‑ "Two brothers are married with the sisters of the complainant Abdul Ghani and my sister is also married with Abdul Ghani complainant. Due to domestic quarrel so many times I abused the wife of my brother Abdul Razzaq in absence of my brother and I often gave her beating and she complained about this beating to her brother Abdul Ghani and thereafter Abdul Ghani came to my house and threatened for dire consequences and due to that reason and. family affairs. I have been falsely involved in this blind murder case." He, however, declined to appear as a witness in his own defence as envisaged by the relevant provisions of section 340(2), Cr.P.C. Although he opted to produce defence evidence, but did not produce the same.

9. The learned Trial Judge, after considering all facts and circumstances of the case pronounced his verdict of guilt against the appellant as afore‑mentioned.

10. Learned counsel for the appellant has highlighted the salient points formulated by him in the following manner:‑‑ (i) That there was more than two days' delay in reporting the matter to the police. (ii) That extra judicial confession of the appellant before Sardar (P.W.6) and Muhammad Rafiq (P.W.10) stood already disbelieved. It was believed qua motive part of the occurrence by the learned Trial Judge. The last seen evidence furnished by Muhammad Akram alias Billa (P.W.5) is unbelievable. It inspires no confidence at all. ` (iii) That the prosecution witnesses are not only related inter se but also of partisan character. The conduct of prosecution witnesses was most unnatural and it would not be safe to rely upon their testimony. The appellant had been acquitted of the charge under section 363, P.P.C. and as such veracity of the prosecution story is reduced to a naught. (iv) That evidence of recovery of chhurri (P.7) is a patent fabrication. The recovery of chhurri (P.7) is extremely doubtful.

11. Learned counsel for the state after due consulation of record submits that name of the appellant figures in the first information report. The prosecution is in possession of last seen evidence of Muhammad Akram (P.W.5), recovery of Chhurri (P.7) in presence of Khushi Muhammad (P.W.8) and motive evidence. He supports the judgment.

12. We have heard learned counsel for both the sides with utmost care and devotion and perused the record in the light of their respective arguments.

13. The most daunting task for a Judge is to evaluate evidence led by the parties in a case, according to cardinal principles of appreciation of evidence. We have noticed that there is two days' delay in lodging of the first information report with the police, which throws a cloud of doubt upon genuineness and correctness of the prosecution story. Muhammad Akram alias Billa (P.W.5) was expected to lay. information before the complainant having seen the deceased in the company of the appellant at the bank of B.R.B. Canal. On seeing them, he did neither a talk with them, or questioned them about their activities, which makes his statement untrustworthy. Everybody had come to know that Mst. Manzooran Bibi was not available and was missing since 15‑4‑1990. Muhammad Akram alias Billa should have established contact with the complainant to tell him that Mst. Manzooran Bibi was seen by him and Nawab Din P.W. on the bank of B.R.B., Canal. He is a made up witness. His testimony is of no evidentiary value being highly unnatural, improbable and unbelievable one.

14. The evidence of Sardar and Muhammad Rafiq (P.Ws. 6 and 10) has already been disbelieved except to the extent of motive. This piece of evidence is fabricated one. It is always considered to be a weak type of evidence. Statements of these witnesses are straightaway discarded by us, being most untrustworthy. Their statements contain not a particle of truth in them. They are most unreliable witnesses and as such their testimony is disbelieved.

15. Evidence of Khushi Muhammad (P.W.8) is fantastic one. Quite close to the place of recovery, canal was available and it was not much difficult for the appellant to have caused destruction of this piece of evidence. It is not understandable as to why he wrapped Chhurri (P.7) in a polythene shopper and preserved the same for its own ward production to the police. It is not a reliable piece of evidence and; as such, is ruled out of consideration.

16. It was unseen occurrence. Even the prosecution failed to point out the location of place of occurrence. There was absolutely no occasion for Mst. Manzooran Bibi to have accompanied the appellant to get herself killed. As the principle evidence fails motive and medical evidence cannot prove case for the prosecution. Medical evidence does not establish identity of‑the culprit. It may simply give us extent, nature, number, locale of injuries, probable weapon of offence and cause of death.

17. The prosecution has lawfully failed to establish case against the appellant beyond any shadow of doubt. As the prosecution evidence is pregnant with innumerable infirmities, and real doubts of substantial nature, float on the surface of the evidence, so, we accept this appeal and quash conviction of the appellant. He is directed to be released from custody forthwith, if not required to be detained in any other case.

18. In this view of the matter, death sentence of the appellant is not confirmed and Murder Reference is answered in the negative. Death sentence not confirmed/acquittal ordered. H.B.T./M‑781/L Appeal accepted.