1986 P Cr (PLP)

5. On 30‑5‑1982, S.I. Asghar Ali made an application Exh. P.J. to the A.D.C.(G) with a request that as Jan Muhammad accused wanted to lead to recovery of dead body, a Magistrate be deputed to supervise the exhumation of the dead body for post‑mortem examination. Accordingly Mr. Danish Raza Naqvi, Magistrate 1st Class P.W. 12 was deputed to supervise the proceedings, vide order Exh. P.J/1. As ordered Mr. Danish Raza P.W. 12 accompanied by Dr. Safdar Ali, P.W. 1, Sana Ullah, D.S.P. S.I. Asghar Ali, some police constables, Imdad Hussain, Sajada, Sharif, Naseer, Naika, Faiz Ahmad and Dona Chowkidar went to the place of burial of Riaz deceased which had been pointed out by Imdad Hussain, Sajada, Sharif, Naseer and Naika P.Ws. The Magistrate on 31‑5‑1982 at 11 a.m. recorded the above facts and ordered the exhumation of the dead body, vide his note Exh. P.K. Mr. Danish Raza P.W. 12 after the exhumation of the dead body recorded another order Exh. P.L. stating therein that the body has been taken out by Naseer and Naika P.Ws. that it was placed on a cot and identified by Imdad Hussain, Sajada, Sharif, Naseer, Naika, Faiz and Dona P.Ws. and directed Dr. Safdar All to conduct post‑mortem examination. He further noted the recovery of a pair of shoes. After the post‑mortem examination the dead body was again buried and the statements of the witnesses were recorded and the proceedings were closed on that very day.

6. The police obtained personal remand of Jan Muhammad accused from the Illaqa Magistrate on 31‑5‑1982. On 18‑6‑1982 Khan Muhammad accused, while in police custody led to the recovery of watch P. 5 belonging to Riaz deceased from a box lying in his house which was taken in possession by S.I. Asghar Ali, vide memo. Exh. P.E. in presence of Ahmad Ali son of Ghazi, P.W. 8 and Naseer P.W., not examined. Jan Muhammad accused on 31‑5‑1982 led to the recovery of a pair of shoes P‑4/1‑2 alongwith a Roomal which was taken in possession by S.I. Asghar Ali, vide memo. Exh. P.G. in presence of Naika P.W. 9, Sharif P.W. 10 and Naseer and Sajada P.Ws. (both not examined). On 7‑6‑1982 Jan Muhammad accused, while in police custody led to the recovery of blood‑stained Kulhara P. 6 from a Kotha of his house which was taken in possession, vide memo. Exh. P.H. by S.I. Asghar Ali in presence of Ahmad Ali son of Muhammad P.W. 11 and Ibrahim P.W. not examined. On the same day and time Jan Muhammad accused while in police custody led to the recovery of blood‑stained cot P. 7 on which the deceased was allegedly murdered. It was taken in possession, vide memo. Exh. P.1 by S.I. Asghar Ali in presence of same witnesses. On 31‑5‑1982, an entry in the daily diary of police station at serial No. 15 was recorded that the dead body had been recovered on the pointing out of Jan Muhammad accused in presence of Syed Danish Raza, Magistrate and others. It was Exh. P.M. On 31‑5‑1982 Jan Muhammad while in police custody led to the recovery of dead body of Riaz deceased vide memo. Exh. P.R. in presence of Naika P.W. 9, Sharif P.W. 10 and Naseer and Sajada P.Ws. both not examined. The police after collecting evidence on motive, recoveries of incriminating articles from the accused, recovery of the dead body on the pointing out of Jan Muhammad accused, extra‑judicial confession and evidence of last seen together of the accused and the deceased challaned the two accused.

7. The prosecution in support of its case examined 14 witnesses in all. There is no eye‑witness of the present occurrence. The evidence of last seen together was furnished by P.W. 5 Imdad Hussain and P.W. 6 Mst. Fatima. The accused made extra‑judicial confession before Shaukat P.W.

7. The recovery of dead body was witnessed by Naika P.W. 9, Sharif P.W. 10 and Danish Raza Magistrate P.W. 12 besides the Investigating Officer. The recoveries of incriminating articles from the accused were witnessed by Ahmad Ali son of Ghazi P.W. 8 and Ahmad Ali son of Muhammad P.W.

11. The medical evidence was furnished by Dr. Safdar Ali P.W. 1 who on 31‑5‑1982 at 12‑45 noon had conducted post‑mortem examination on the dead body of Riaz. On external examination the Medical Officer found injury No. 1 as "an noised wound 15 c.m. x 5 c.m. x vertibral column deep on the front upper part of neck. The spinal cord and the neck had been cut which was attached with the piece of skin only". All the structures of neck vessels, nerves, trachea and oesophagus were cut. Injury No. 2 was "a contusion 10 c.m. x 4 c.m. on the front of left chest lower part". Injury No. 3 was "an incised wound 11 c.m. x 1 c.m. x skin deep on front of left foot". The dead body was decomposed. Teeth were loose and few hair were present on the head. Other vital organs were decomposed. The stomach was slightly decomposed. In the opinion of the medical officer the death had occurred due to shock and haemorrhage due to injury No.

1. The remaining two injuries were simple in nature. Injuries No. 1 and 3 had been caused by sharp‑edged weapon and injury No. 2 had been caused by blunt weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature. The time between the injuries and death was within 5 to 10 minutes and post‑mortem was conducted after about three weeks of death. The case was investigated by S.I. Asghar Ali P.W.

14. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They denied the recoveries of incriminating articles at their instance. Jan Muhammad accused denied having confessed his guilt before Shaukat P.W.

7. They did not produce any evidence in defence.

8. The learned trial Judge believed the evidence of last seen, extra‑judicial confession, incriminating recoveries and motive and convicted Jan Muhammad accused as stated above.

9. I have carefully examined the record of this case and have heard the learned counsel appearing on behalf of the parties at some length. The evidence on motive has been furnished by Imdad Hussain P.W. 5 a brother of Riaz deceased. It was stated by him that during search of his brother he, for the first time, came to know about the motive that he was suspected of having illicit relations with Mst. Faiz Elahi, a sister of Jan Muhammad accused. He admitted in cross -examination that he did not remember the name, description of any person who gave him information about the motive. He admitted that none of witnesses cited in the calendar of witnesses had ever told him about the motive nor did he produce any person to support the story of motive before the police against the accused. The accused and the complainant resided in the one and the same village. There was no talk or rumour about the said illicit relations in the village before lodging of the F.I.R. There is no evidence to corroborate Imdad Hussain P.W. on evidence regarding motive. I am, therefore, of the view that the prosecution has failed to prove motive against the accused in this case. The evidence on extra‑judicial confession has been furnished by Shaukat Ali P.W. 7 who is an influential Zamindar of the Illaqa. It was stated by him that about two years earlier at about 7/8 a.m. he was present at his Dera alongwith Bashir Ahmad P.W. Jan Muhammad accused came to him and made confession that he had committed the murder of Riaz deceased 20/21 days earlier. He had confessed that he had taken Riaz deceased from his house on the pretext of irrigating the land and made him to sleep at his Behak and that he killed him with a hatchet. He further stated that he informed his father after the occurrence and then both of them buried the deceased in. some land, the Killa number of which he did not remember. Jan Muhammad requested him to produce him before the police. Accordingly Jan Muhammad was taken to the police in Chak No. 72‑D by him and Bashir P.W. In cross‑examination he admitted that accused Jan Muhammad had told him that he was in trouble and he should help him. He was confronted with his statement before the police Exh. D.B. where he had stated that "Jan Muhammad accused by coming to him had stated that I was an influential Zamindar and that I should get concession for him". From a perusal of the statement of this witness it appears that he was an influential Zamindar and that the accused sought his help in the case registered against him though he belonged to Chak No. 40‑A/4‑L about 21 miles from the place of occurrence. He denied suggestion that he had relations with the police. I am of the view that this witness was not a reliable witness. He stated in cross‑examination that he was not aware as to whether any case had been registered in respect of the murder of Riaz deceased. This was improbable. He was a resident of Chak No. 40‑A about 2 miles from the place of occurrence and it is not believable that he was unaware of the registration of the case. The police was already present at the place of occurrence on 29‑5‑1982 and actually prepared the rough site plan of the place of occurrence on 29‑5‑1882. The other witness Bashir Ahmad was not examined during the trial. As such Shaukat Ali P.W. has not been corroborated by any other evidence. There was no reason for Jan Muhammad accused to go to Shaukat Ali P.W. specially when he did not belong to his village and according to his own saying he was not an influential person. The precise words used by accused while confessing his guilt have also not been reproduced by this witness in his statement during the trial. I am not, therefore, inclined to place reliance on his evidence.

10. The evidence of last seen together has been furnished by Imdad Hussain P.W. 5 and his mother Mst. Fatima P.W.

6. They are interested witnesses being related to the deceased. It was stated by Imdad Hussain that about 20 days before the F.I.R. Jan Muhammad accused had taken away Riaz deceased in their presence. In my view the gap of 20 days has not been satisfactorily accounted for by these two witnesses. It was stated by Imdad Hussain P.W. in cross‑examination that he had gone to Karachi 7/8 days after his brother had left the house; that he stayed in Karachi for about 1/2 days and then came back to Chak No. 72‑D; that accused persons left the village two days after his arrival back from Karachi and from that he felt sure that they had murdered his brother and on the same day he lodged the F.I.R. This means that the F.I.R. wag recorded about 12 to 14 days of the occurrence. However, the prosecution case as set up during investigation was that Riaz deceased went alongwith Jan Muhammad accused about 20 days before the F.I.R. According to Mst. Fatima P.W. 6 Imdad Hussain had gone to Karachi 4/5 days after Riaz had left the house. All these facts indicate that the story that Jan Muhammad accused took away Riaz deceased about 20 days before lodging of the F.I.R. was not correct. It is in evidence of Imdad Hussain that next day he, on the suggestion of Jan Muhammad accused had gone to his sister in Chak No. 60‑D to enquire about Riaz who stated that he had not arrived there. This fact alone should have aroused suspicion in the mind of Imdad Hussain. Mst. Razia was his sister and it should have been in his knowledge whether Riaz deceased had to go to Chak No. 60‑D to bring her to Chak No. 72‑D. In spite of this he went to his sister to enquire about Riaz deceased. He then went to Karachi knowing that the information earlier given by Jan Muhammad accused had proved false. This means that Jan Muhammad accused was never suspected of the murder of Riaz and that the present case was later fabricated against him. I am not prepared to rely on the evidence of Imdad Hussain and Mst. Fatima P.Ws. The evidence on recovery of the dead body was furnished by Mr. Danish Raza, Magistrate P.W. 12, Naika P.W. 9 and Sharif P.W.10. It was stated by Naika P.W. 9 that Jan Muhammad had pointed out a place where he had buried the body of Riaz deceased after killing him and that the police had deputed a Chowkidar and an F. C. to guard the said place. He further stated that on that very day Jan Muhammad had pointed out the place of murder, vide memo. Exh. P.F. It was stated by him in examination‑in‑chief that on the following day the dead body of Riaz was exhumed in the presence of a Magistrate and other witnesses. This witness had also made statement Exh. D.C. before the Magistrate when the body was recovered. He did not state therein that Jan Muhammad accused had pointed out the place where he had buried the dead body after the murder. In fact the presence of Jan Muhammad in any context was not mentioned in statement Exh. D.C. He admitted that he was first cousin of the deceased. Sharif P.W. 10 was a brother of the deceased. He did not mention in his statement during trial that the dead body was exhumed on the pointing out of Jan Muhammad accused. In his statement he did not a: all mention the name of Jan Muhammad accused. Mr. Danish Raza, Magistrate P.W. 12 in his examination‑in‑chief during the trial stated that "on the disclosure made by the accused a place was dug out and the dead body of the deceased was recovered from a ditch wrapped in a Dohar (Khes) alongwith a pair of shoes Exh. P.4/1‑2 wrapped in a handkerchief. He further stated that the place of recovery of dead body was already under guard when he reached there. In cross‑examination he admitted that the place where the dead body was buried was mentioned in application Exh. P.J. He admitted that in his report Exh. P.K. he had not mentioned that the dead body was recovered on the pointing out of the accused. He admitted that according to report Exh. P.K. the place from where the dead body was dug out was pointed out by the P. Ws. A perusal of the report Exh. P.K. and the order Exh.P.L. and also the statements of Naika Exh. D.C. and Asghar Ali Exh. D.D. make it clear firstly that Jan Muhammad accused was not present at the time of exhumation of dead body of Riaz; that the place of burial was pointed out to the Magistrate by witnesses and that the said place was already being guarded by a Constable and chowkidar. According to S.I. Asghar Ali the accused had pointed out the place of burial of Riaz deceased on 30‑5‑1987 where after he had placed guard at that place. He is contradicted by his own document Exh. P.R. wherein it is mentioned that on 31‑5‑1982 Jan Muhammad accused led to the recovery of the dead body of Riaz. The memo. Exh. P.R. belies the fact that the accused had pointed out the place of burial of dead body earlier to‑the exhumation in presence of the Magistrate. The memo. Exh. P.R. is not signed by the Magistrate. No document prepared by the Magistrate indicates the presence of the accused at the time of exhumation of dead body. In my view the evidence of recovery of dead body at the instance of Jan Muhammad accused is not reliable and is, therefore, excluded from consideration as circumstance against him. The accused were arrested on 30‑5‑1982. The case was registered on 29‑5‑1982 and the occurrence had taken place allegedly 20 days earlier to that. The recovery of Kulhara P. 6 and cot P. 7 from Jan Muhammad accused was effected at 7‑6‑1982 i.e. about a month after the alleged occurrence. Firstly the place of recovery was the house in joint occupation of the two accused. Secondly, according to P.W. 11 Ahmad Ali the room was not locked and was open. According to Ahmad Ali P.W. the police had arrived at about 8/9 a.m. on the day of recovery and remained there for about 3 hours preparing documents and that 15/20 persons were present at the place of recovery besides the witnesses. According to this witness the recovery was made sometime between 9 a.m. to 12 noon. On the other hand S.I. Asghar Ali P.W. 14 stated that the recoveries from Jan Muhammad were effected at 2 p. m. and that no one else was present at that time. These are material discrepancies which make the recovery from the accused doubtful. Even otherwise it is not probable that firstly, the accused would keep these incriminating articles in his house for such a long time and secondly the blood must have disintegrated during lapse of one month. These recoveries can, therefore, not furnish incriminating evidence against Jan Muhammad accused. I need not sussed the recovery of watch P.5 at the instance of Khan Muhammad acquitted accused. The mother of Riaz deceased was a sister of the father of Ahmad Ali P.W.

11. He was an interested witness. No reliance can be placed on his evidence.

11. In view of the above discussion I find that the prosecution has failed to prove its case against Jan Muhammad accused. This appeal is accepted. The conviction and sentences of Jan Muhammad accused are set aside. He is acquitted of all the charges. He shall be released from prison forthwith if not required in any other case.

12. In view of the above decision in appeal the two Criminal Revisions are dismissed in limine. S.G.D. Appeal allowed.