1991 PCr (PLP)

MUHAMMAD MUNIR KHAN, J.

This Criminal Appeal No.45 of 1987/BWP and the connected Murder Reference No.11 of 1987/BWP arise from the judgment of learned Additional Sessions Judge, Bahawalpur, whereby he on 10-3-1987, acquitted Muhammad Ibrahim alias Tillu but convicted Muhammad Arshad (38) for the murder of Feroze Khan (36) and sentenced him to death and a fine of Rs.8,000 in default whereof 2 years' R.I. He also convicted him under section 201, P.P.C. and sentenced him to 5 years' R.I., and a fine of Rs.2,000 in default whereof 6 months' R.I., with the direction that the fine if recovered half of it be paid to the legal heirs of the deceased.

2. The occurrence took place on the night between 10/11-4-1986 in the house of Muhammad Arshad (appellant) situate in Lakkar Mandi Chishtian, at a distance of 3 kilometres from Police Station Chishtian. Ghulam Muhammad, Inspector/S.H.O. (P.W.9) recorded F.I.R. (Exh.P.G.) on 15-4-1986 at 9-30 a.m., under section 364, P.P.C. on the basis of written report (Exh.P.R.) of Sher Khan (P.W.15), brother of the deceased.

3. There was no previous motive in this case. The prosecution case is that Feroze Khan (deceased) had sold his woods to Muhammad Arshad (appellant). On the day preceding the night of occurrence, Feroze Khan left. Chak No.30/3-R for the house of the appellant situate in Chishtian to receive payment but he did not return till late in the night. Muhammad Abbas (P.W.3) came to the house of the complainant and told him that Muhammad Arshad (appellant), Muhammad Ibrahim alias Tillu (acquitted accused) and Feroze Khan (deceased) had met him in a hotel in Chishtian and the deceased had asked him to tell him (the complainant) that Muhammad Arshad had promised to make payment on the next day so he will stay the night in the house of the appellant and will return home after receiving money from him. However, the deceased did not come back to his house on the next day. On this the complainant approached Burgat Khan (P.W.13) and Nawab Khan (P.W.14) and they went to the house of Muhammad Arshad (appellant) in Chishtian to enquire the whereabouts of the deceased. Muhammad Arshad told them that the deceased did stay night in his house but after receiving a sum of Rs.18,000 from him, he had left for his house. He, further, told them that the deceased had sold his motor-cycle to him for Rs.10,000 and had received Rs.5,000 towards the price of motorcycle and Rs.13,000 towards arrear of sale price of woods. Thereafter the complainant and his companions came back to their house and remained searching for the deceased in Hasilpur and Bahawalnagar, Ultimately they again approached Muhammad Arshad (appellant) and asked from him the whereabouts of the deceased but Muhammad Arshad told them that he was not keeping Feroze Khan in his Dub and they should leave his house and search him elsewhere. On this Sher Khan (complainant) went to Police Station Chishtian, presented written report (Exh.P.R.) on which case under section 364, P.P.C. was registered.

4. On the same day Ghulam Muhammad, Inspector (P.W.9) arrested Muhammad Arshad (appellant). He led to the recovery of dead body of Feroze Khan from the courtyard of his house in the presence of the complainant and Muhammad Abbas (P.W.3). He also got recovered blood-stained Charpoi (P.3), which was taken into possession vide memo. (Exh.P.H.) attested by Aziz Khan (P.W.6), Bashir Khan P.W. (not produced) and Ghulam Muhammad, Inspector (P.W.9). On the same day he got recovered motor-cycle (P.4) of the deceased, wrist watch of the deceased (P.5), licence (P.6), registration book (P.7), photostat copy of the identity card and transfer letter (P.8), insurance (P.9) and receipt in favour of Sher Khan which were taken into possession vide memo. Exh.P.C. attested by the same witnesses. On 17-4-1986 he got recovered blood-stained Kulhara from his house which was taken into possession vide memo. Exh.PJ. attested by Burgat Khan (P.W.13), Nazar Khan (not produced) and Ghulam Muhammad, Inspector (P.W.9). On 27-4-1986 Muhammad Ibrahim alias Tillu (co-accused) was arrested. At the time of arrest he was having knife (P.17) which was taken into possession vide memo. Exh.P.O. attested by Faiz-ul-Haq (P.W.11), Riasat Ali (not produced) and Ghulam Muhammad, Inspector (P.W.9).

5. On 15-4-1986, Dr. Muhammad Ashraf (P.W.7) conducted post-mortem examination on the dead body of Feroze Khan (deceased). He found following injuries on his person:-- (1) An incised wound in the centre of abdomen from which intestines are out; 10 c.m. x 6 c.m. (2) An incised wound just above injury No.l 8 c.m. x 3 c.m. (3) An incised wound left side of chest 6 c.m. x 4 c.m. (4) An incised wound left side of skull. (5) An incised wound right forearm. In his opinion the death had occurred due to haemorrhage and shock. Injuries Nos.1, 3 and 4 were individually sufficient to cause death in the ordinary course of nature. The death was instantaneous. Time between the death and post-mortem was about 5 days. All the injuries were caused with sharp-edged weapon.

6. To prove its case prosecution produced 15 witnesses. Paye Khan (P.W.12), Burgat Khan (P.W.13) and Nawab Khan (P.W.4) are the witnesses of extra judicial confession. They stated that the appellant had admitted that he and Muhammad Ibrahim alias Tillu had killed Feroze Khan on the night between 10/11-4-1986 and had concealed his dead body After his confession the appellant told the witnesses that Muhammad Ibrahim alias Tillu was present at some distance. The witnesses went to that place. Muhammad Ibrahim was present there. He also confessed that he and Muhammad Arshad (appellant) had murdered Feroze Khan (deceased) and had concealed the dead body. Muhammad Abbas (P.W.3) stated that he had seen the deceased alongwith the appellant and Muhammad Ibrahim, alias Tillu (co-accused) on the day preceding the night of occurrence. Majeed Khan (P.W.8) stated that he had seen the deceased and Tillu co-accused on the night of occurrence in the house of Muhammad Arshad (appellant) Sher Khan (P.W.15) stated that about 4/5 days before the lodging of the F.I.R. the deceased had left for the house of Muhammad Arshad (appellant) to take Rs.41,000 the price of the woods sold by him to the appellant but did not return. After making search for 4/5 days, he ultimately presented written report at the police station and that the appellant had got recovered the dead body of Feroze Khan from his house. Muhammad Abbas (P.W.3) has also deposed about the recovery of the dead body on the pointation of the appellant. Aziz Khan (P.W.6), Burgat Khan (P.W.13), Faizul Haq (P.W.11) and Ghulam Muhammad, Inspector (P.W.9) have supported the afore stated recoveries from the appellant. Dr. Muhammad Ashraf (P.W.7) has proved the post-mortem report. The rest of the evidence is of formal nature.

7. When examined under section 342, Cr.P.C., the appellant denied all incriminating circumstances. He raised plea of his involvement on account of suspicion and enmity. He did not produce any evidence in defence. He also did not give evidence on oath in disproof of charge against him.

8. Learned counsel for the appellant contended that there is no eye-witness of the occurrence; that according to the three witnesses of extra judicial confession, namely, Paye Khan, Burgat Khan and Nawab Khan, the appellant had confessed his guilt before Sher Khan P.W. could lodge F.I.R. at the police station whereas the factum of extra judicial confession has not been mentioned in the F.I.R. and the appellant has been suspected to have killed the deceased; that the remaining evidence fails to connect the appellant with murder of the deceased; and that at the worst a case punishable under section 201, P.P.C. is made out against him. Learned counsel for the State has tried to support the judgment of the trial Court.

9. We have carefully attended to the arguments addressed by learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, the statement made by the accused under section 342, Cr.P:C., and circumstances appearing in the case. We feel persuaded to agree with learned counsel for the appellant for the reasons that in the F.I.R. the appellant has simply been suspected to have killed the deceased. From the statements of three witnesses, namely, Paye Khan, Burgat Khan and Nawab Khan it appears that the appellant had confessed his guilt before the FIR, was actually lodged. Paye Khan (P.W.12) has stated that on 15-4-1986 at 10. a.m., he went to Chishtian and found that Nawab Khan, Burgat Khan and Sher Khan were present in front of Police Station City Chishtian. Sher Khan left for getting the application scribed. He, Burgat Khan and Nawab Khan P.Ws. proceeded towards city. When they reached near Fowara Chowk they found the appellant sitting in a hotel who enquired from them the whereabouts of Feroze Khan (deceased) on which they told him that Sher Khan had gone to the petition writer for getting the application scribed and that Sher Khan was suspecting him to have killed his brother, the deceased. At this, the appellant admitted that he and Muhammad Ibrahim alias Tillu had killed Feroze Khan on the night between 10/11-4-1986 and further told that he had caused the dead body to disappear and begged to be pardoned. He told them that Tillu was present nearby so the three witnesses went to that place where Muhammad Ibrahim alias Tillu made similar confession before them. Had the appellant and his co-accused made confession of the murder of Feroze Khan in the circumstances stated by the three witnesses then this fact (extra judicial confession made by the appellant and his co-accused) should have been mentioned in the F.I.R. Furthermore had the appellant confessed before the three witnesses to have killed the deceased then in the ordinary course of events they would have apprehended him then and there. Instead of apprehending the appellant and his co-accused on the spot and taking them to the police station, the witnesses proceeded to the police station as stated by them. The F.I.R. (Exh.P.J.) was recorded at 9-30 a.m., whereas Pare Khan (P.W.12) states that by 10 a.m. Sher Khan had not even got the report written by the petition-writer. It may be noted here that Exh.P.G. has been written by a petition-writer. This will show that the police first arrested the appellant and thereafter the F.I.R. was registered. In these circumstances, there is no option but to exclude the evidence of extra judicial confession from consideration. The evidence of the last seen furnished by Muhammad Abbas (P.W.3) and Majeed Khan (P.W.8) by itself is not sufficient to connect the appellant with the murder of the deceased, more particularly when Muhammad Ibrahim alias Tillu (co-accused) who was lastly seen with the deceased has been acquitted. Paye Khan, Burgat Khan and Nawab Khan P.Ws. had also deposed about the confession of Muhammad Ibrahim alias Tillu (co-accused) but he has been acquitted. This will show that the evidence of extra judicial confession and the last seen was not acted upon to the extent of the co-accused. For all these reasons we feel that prosecution has not been able to prove the charge of murder against the appellant beyond reasonable doubt.

10. This brings us to the conviction of the appellant under section 201, P.P.C. for causing the evidence of crime to disappear. We find that the complainant, the witnesses of extra judicial confession, Muhammad Abbas (P.W.3) and Ghulam Muhammad, Inspector (P.W.9) have stated that the dead body of Feroze Khan was found buried in the courtyard of the house of the appellant and he (appellant) had led to the place wherefrom the dead body was recovered. We do not see any reason to disbelieve the prosecution case and evidence with regard to the recovery of the dead body at the instance of the appellant. Learned counsel for the appellant has also not challenged this recovery.

11. The upshot of the above discussion is that, there being no satisfactory basis to uphold the conviction and sentence of the appellant under section 302, P.P.C. for the murder of Feroze Khan so while giving him the benefit of doubt he is acquitted of the charge under section 302, P.P.C. However, his conviction and sentence under section 201, P.P.C. recorded/awarded by the trial Court is maintained. He shall be given the benefit of the provisions of section 382-B, Cr.P.C. The death sentence is not confirmed. N.H.Q./M-2/L Appeal partly accepted.