2000 PLP 1048 (YLR)

This judgment will dispose of Criminal Appeal No. 126 of 1997 filed by Ahmad Yar, Sabir Hussain and Allah Diwaya, appellants, who were convicted and sentenced by learned Additional Sessions Judge, Bahawalpur for committing the murder of Noor Hussain under section 302/34, P.P.C., to undergo life imprisonment vide judgment. dated 3‑12‑1997.

2. Occurrence in this case had taken place within the revenue estate of mauza Dhoorkot at a distance of 13 kilometers from Police Station Uch Sharif, District, Bahawalpur on 31‑3‑1994 while the matter was reported by Ahmad Bukhsh complainant at 1‑00 p.m. on 2‑4‑1994 and the formal F.I.R., Exh.P.G., was recorded by Inspector/S. H. O., (P.W.14) on the same day.

3. Briefly stated, story of the prosecution was that on 31‑3‑1994 at Maghrabwela complainant was sitting in his house alongwith Hazoor Bukhsh and Noor Hussain when Ahmad Yar, Sabir and Allah Diwaya came and asked Noor Hussain, who was their friend, to accompany them to offer congratulation to Faiz Muhammad on his performance of Umra. Ahmad Yar, Sabir and Allah Diwaya went alongwith Noor Hassan. Noor Hassan did not return during the night when it was Thursday. On Friday, that is, next day at 8/9‑00 a.m., complainant alongwith Zahoor went to the house of Ahmad Yar etc., to inquire about Noor Hassan. Sabir met the complainant party and told that Noor Hassan had returned but was not traceable though searched. On the same day at about I1‑00 a.m., complainant alongwith Hazoor Bukhsh when went to the house of Faiz Muhammad to inquire about Noor Hassan, Mukhtar and Muhammad Hussain met the complainant near the pond. On inquiry, it was told that Noor Hassan was seen by them at Ishawala previous night in the company of Sabir Hussain and Allah Diwaya. Thereafter, the complainant alongwith witnesses went to the house of Faiz Muhammad on Friday but he was not available. On second day, that is Saturday, Faiz Muhammad told the complainant that Noor Hassan had not come to him. Complainant alongwith Hazoor Bukhsh sat there when in the meanwhile Nazar and Zafar Hussain came there and on being asked about Noor Hassan, they told that in the early hours of the Saturday morning they were returning from Uch Sharif and in the head light of the car, they had seen Ahmad Yar, Sabir and Allah Diwaya carrying something like dead body and throwing in the cluster of date tree. Thereafter, complainant alongwith Zahoor Bukhsh, Zafar Hussain and Faiz Muhammad went to the place of occurrence where many people had already gathered. It was the dead body of Noor Hassan having mark of injury on his neck. There were also injuries on other parts of body of Noor Hassan. It was learnt that Allah Diwaya etc. had suspicion that Noor Hassan had illicit liaisons with Mst. Mumtaz, sister of Shabir Hussain and Allah Diwaya accused. Due to this grudge, Allah Diwaya, Sabir Hussain and Ahmad Yar had‑murdered nephew of the complainant.

4. After registration of the formal F.LR. Exh.P.G., Syed Jamat Ali Bokhari, Inspector/S.H.O., (P.W.14) proceeded to the place of occurrence, recovered blood‑stained grass and earth and took the same into possession vide memo. Exh. P.F. On 26‑4‑1994; all the accused were arrested and on 29‑4‑1994 Ahmad Yar, accused while in Police custody led to the recovery of Churri P.6 which was taken into possession vide memo Exh.E. After completions of the investigation, all the three accused were challenged to face the trial.

5. Prosecution in order to prove its case produced 15 witnesses in all out of whom Nazar Hussain (P.W.8) and Ahmad Bukhsh (P.W.9) were eye‑witnesses while the doctor who conducted post‑mortem examination on the dead body of Noor Hassan was examined as P.W.15. Thereafter, statements of the appellants were recorded under section 342, Cr.P.C., in which they pleaded innocence and claimed false implication due to enmity. Report of the Chemical Examiner is Exh.P.G. while that of the Serologist is Exh.P.H. After conclusion of the trial, all the appellants were convicted and sentenced as stated above.

6. After reading the prosecution evidence and statements of the appellants recorded under section 342, Cr.P.C., learned counsel for the appellants submits that P.W.13 which Waheed Bakhsh was the witness of extra‑judicial confession and his statement was not admissible as the said extra judicial confession was joint one and the same cannot be read in evidence and also cannot be used against the appellants. Further submits that there is delay in lodging, the F,.I.R., without any proper explanation, that all the witnesses are closely related inter se, that it was an unwitnessed occurrence, that there was no eye‑witnesses in this case, that as far as, recovery of Churri from Ahmad Yar appellant is concerned, that was alleged to have been recovered from him on 29‑4‑1994 and the same was received in the office of Chemical Examiner on 29‑5‑1994 and the delay in sending the same in the office of Chemical Examiner has not been properly explained. Further submits that in case of circumstantial evidence, prosecution has to link all the chains without any hissing of any part of the said chain in order to prove the case.

7. On the other hand, learned A.A.‑G. submits that witnesses have no animosity against the appellants, that it was not a case of false implication, that evidence of extra judicial confession is corroborated by last seen evidence and the medical evidence. I have heard the learned counsel for the parties at a great length and have also gone through the prosecution evidence with their assistance. The occurrence in this case took place on 31‑3‑1994 while the matter was reported to the police on 2‑4‑1994 without any proper explanation. The evidence of extra‑judicial confession furnished by Wahid Bakhsh P.W.13 is joint one and the same is not admissible in evidence. As far as, recovery of Churri on the pointation of Ahmad Yar, appellant is concerned that cannot be believed against the appellant because the same was allegedly effected on 29‑4‑1094 and was received in the office of Serologist on 29‑5‑1994 and there is no plausible explanation in this regard. All the witnesses produced by the prosecution are closely related inter se. Then there is also no evidence of recovery of dead body on the pointation of the appellant from the place where he had allegedly killed the deceased. It was not an unwitnessed occurrence and due to suspicion appellant was named in the F.I.R., which was also delayed one. In the cases of circumstantial evidence Court has to see that all the chains are connected and linked with each other in such manner that they could prove the case against the accused/appellants beyond any shadow of doubt which is lacking in the instant case. While extending the benefit of doubt, I accept this appeal, conviction and sentence awarded to the appellants by the learned Trial Court is set aside. They are behind the bars, they shall be released forthwith if not required in any other case. H.B.T./A‑22/L