1999 P Cr (PLP)

ASIF SAEED KHAN KHOSA, J.

Talib Hussain was convicted by the learned Sessions Judge, Vehari vide judgment, dated 26-9-1995 for an offence under section 302, P.P.C. and was sentenced to death as Tazir. He was also ordered to pay a sum of Rs.25,000 to the heirs of Allah Diwaya deceased by way of compensation under section 544-A, Cr.P.C. and in case of default in payment thereof to undergo R.I. for four months. Through the same judgment Talib Hussain's co-accused Habib, Abdul Majeed and Abdul Rehman were, however, acquitted by the learned trial Court. Talib Hussain has challenged his conviction and sentence before this Court through Criminal Appeal No.282 of 1995. We have heard the convict's appeal alongwith Murder Reference No.259 of 1995 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution story narrated .in the F.I.R. was that Aman Ullah complainant was a resident of Chak No. 168/WB and was an agriculturist by profession. At about 8-00 p.m. on 14-10-1992 the complainant's younger brother Allah Diwaya had gone to irrigate his cotton crop. At about 10-00 p.m. Ghulam Habib, Abdul Majeed and Abdul Rehman came to the Dera of Haji Muhammad Bakhsh in that village where the complainant was also present with Haji Abdul Rehman, Muhammad Ramzan and Muhammad Habib. In the presence of those persons the said three visitors inquired about Allah Diwaya and they were told by Haji Abdul Rehman that Allah Diwaya was busy irrigating his cotton crop. After gathering that information the said three persons went away. At about 2-00 a.m. the turn of irrigation of Allah Diwaya bused to come to an end but he did not return home till the morning. The complainant and others then kept on looking for Allah Diwaya ut could not find him. At last at about 4-00 p.m. on 18-10-1992 the complainant and his companions managed to find Allah Diwaya's dead body in the cotton field of Khuda Bakhsh. They found that the dead body had a rope around its neck and its head and face were covered by a fertilizer bag. The complainant strongly suspected that Ghulam Habib, Abdul Majeed and Abdul Rehman had murdered his brother Allah. Diwaya. The motive set up in the F.I.R. was that Allah Diwaya deceased was carrying on illicit relations with one Mst. Hajiran daughter of Jumma who was a relative of the said Ghulam Habib etc. statedly Ghulam Habib etc. had committed the murder of Allah Diwaya on account of that grievance.

3. Leaving the dead body of his brother Allah Diwaya at the place of occurrence in the care of Haji Abdul Rehman etc. Aman Ullah complainant then proceeded to report the matter to the local police. On his way to the police station he met Mukhtar Ahmad, A.S.-I. (P.W.5) at Chowk Maitla at about 4-00 p.m. who recorded his statement (Exh.P.F.) there. Subsequently, formal F.I.R. No.245 (Exh.P.F./I) was registered at Police Station Tibba Sultan Pur District Vehari by Latifullah, M.H.C. (P.W.6) at 4-30 p.m. on the same day for an offence under section 302/34, P.P.C.

4. After recording the statement of the complainant Mukhtar Ahmad, A.S.-I. (P.W.5) took up the investigation of this case, went to the place of occurrence, prepared inquest report (Exh.P.C.) and injury statement (Exh.P.B.) in respect of Allah Diwaya deceased and sent his dead body to the mortuary for autopsy. He also inspected the place of occurrence, prepared its rough site plan (Exh.P.G.), took into possession a pair of shoes (P.3/1-2) of the deceased and secured the same through memo. Exh.P.H. and recorded the statements of witnesses as well as a supplementary statement of the complainant.

5. Post-mortem examination (Exh.P.A.) of the dead body of Allah Diwaya was conducted by Dr. Maqsood Ahmad (P.W.1) on 19-10-1992. He found a ligature mark on the neck 3 c.m. below chin and encircling the neck completely and horizontally which was one c.m. in thickness. In the opinion of the doctor the cause of death was asphyxia due to strangulation by ligature. The ligature mark was ante-mortem. The approximate time elapsing between the injury and death was stated by the doctor to be immediate while the duration between the death and post-mortem examination was opined by the doctor to be about 3 to 5 days.

6. After the post-mortem examination of Allah Diwaya deceased Mukhtar Ahmad, A.S.-I. (P.W.5), the Investigating Officer, secured a string (P.4) and an empty gunny bag (P.5) vide memo. Exh.P.J. and the last-worn clothes of the deceased vide memo. Exh.P.K. On 23-10-1992 the investigation was transferred from him. Muhammad Yousuf, Inspector/S.H.O. (P.W.12) then took over the investigation of this case. On 11-2-1993 he arrested Habib, Abdul Rehman and Abdul Majeed accused. On 10-3-1993 he got all of them discharged from this case as they were found by him to be innocent. On 21-3-1993 Abdul Razzaq and Muhammad Rafiq P.Ws. produced Talib Hussain accused before him and he arrested Talib Hussain in this case. On 30-3-1993 Talib Hussain accused, while in police custody, led to the recovery of a wrist watch (P.1) and a golden ring (P.2) from his residential house which were taken into possession vide recovery memo. Exh.P.E. On 31-3-1993 he produced Talib Hussain accused before Syed Intizar Hussain Shah, M.I.C., Mailsi for getting his statement recorded under section 164, Cr.P.C. Thereafter, he completed the other formalities, finalized his investigation and submitted a challan in report of this case.

7. At the commencement of the trial the learned trial Court framed a charge with one head under section 302/34, P.P.C. against Talib Hussain and his three co-accused to which they pleaded not guilty and claimed a trial.

8. During the trial the prosecution produced as many as 12 witnesses in support of its case against the accused persons. No eye; witness of the occurrence was produced by the prosecution as the incident was admittedly un-witnessed. Muhammad Ramzan (P.W.3) deposed about the recoveries affected from Talib Hussain accused. Muhammad Rafiq (P.W.7) and Abdul Razzaq (P.W.8) stated about an extra judicial confession made by Talib Hussain accused before them. Syed Intizar Hussain Shah, M.I.C. (P:W.11) stated about the judicial confession made by Talib Hussain accused before him. Dr. Maqsood Ahmad (P.W.1) provided the medical evidence. Mukhtar Ahmad, A.S.-I. (P.W.5) and Muhammad Yousuf, Inspector/S. H. O. (P.W.12) stated about various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

9. In his statement recorded under section 342, Cr.P.C. Talib Hussain accused denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He maintained that the prosecution witnesses were inimical and interested and that he had been made a scapegoat in place of the real culprits. The other three accused persons also denied their involvement in the offence in question and maintained that they had been roped into this case only on account of suspicion. All of them, however, opted not to make a statement on oath under section 340(2), Cr.P.C. and also did not produce any witness in their defence.

10. At the conclusion of the trial, as mentioned above, the learned Sessions Judge, Vehari convicted and sentenced Talib Hussain accused as noticed above and acquitted his three co-accused. Hence, the present appeal and the connected murder reference before this Court.

11. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate-General representing the State and have also gone through the record of this case with their assistance.

12. The learned counsel for the appellant has argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He has maintained that the occurrence in question was admittedly an un-witnessed one and the circumstantial evidence produced by the prosecution in support of its case did not inspire confidence. As against that the learned Assistant Advocate -General representing the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through cogent and reliable evidence.

13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to I prove its case against the appellant beyond reasonable doubt. It was admittedly a night occurrence taking place in the darkness of a remote field and admittedly nobody had seen the occurrence. The F.I.R. in this case had been lodged after about four days of the occurrence and in that belated F.I.R. only a suspicion was expressed by the complainant on the appellant's three co-accused and not on the appellant. The motive set up in the F.I.R. also pertained to those co-accused and not to the present appellant. The appellant was in no way related to or connected with those co-accused. Those three co-accused of the appellant were found to be innocent during the investigation by the local police and were, consequently, discharged from the case. During the trial the prosecution had failed to produce any evidence against them and they have since been acquitted by the learned trial Court. Their acquittal has not even been challenged by the complainant and the State.

14. In the absence of any ocular account the prosecution in this case had heavily relied upon the evidence of an extra judicial confession as well as a judicial confession allegedly made by the appellant apart from the evidence of recoveries allegedly affected from the appellant. After careful examination we have found all those pieces of evidence produced by the prosecution to be unreliable and not confidence inspiring.

15. The occurrence in this case had taken place on 14-10-1992 and the alleged extra judicial confession was made by the appellant before Muhammad Rafiq (P.W.7) and Abdul Razzaq (P.W.8) on 21-3-1993, i.e. after more than five months of the occurrence. Muhammad Rafiq (P.W.7) was a paternal-cousin of the deceased whereas Abdul Razzaq (P.W.8) was a maternal-cousin of the deceased. The appellant, in his statement recorded under section 342, Cr.P.C. had categorically denied making of any such statement before the said witnesses. We have noticed that the statement attributed to the appellant by these witnesses was neither in accord with the facts brought on the record nor the same was in consonance with the normal human conduct. In the said statement the appellant was alleged to have confessed of administering intoxicant to the deceased before murdering him. The doctor, conducting the post-mortem examination of the dead body had failed to find any indication regarding administration of intoxicant to the deceased before his murder. Moreover, the appellant had allegedly confessed before the said witnesses that he had murdered the deceased because the deceased was carrying on illicit relations with the appellant's wife. However, it had also come on the record that -the appellant had in fact divorced his wife about six months before the present occurrence. A killing on account of the deceased's illicit relations with the appellant's wife is understandable but a murder on account of the deceased's illicit relations with the appellant's divorced wife defies common sense and surely militates against normal human conduct. In this view of the matter we are not ready to lend credence to such an extra judicial confession allegedly made by the appellant which was not only belated but the same also disclosed a story which was against the record apart from being unbelievable.

16. As regards the judicial confession allegedly made by the appellant in his statement under section 164, Cr.P.C. (Exh.P.L.) before Syed Intizar Hussain Shah, M.I.C. (P.W.11) on 3i-3-1993 suffice it to observe that the same was illegal, inadmissible and irrelevant inasmuch as that statement was allegedly made on oath. Reference in this respect may be made to the case of Muhammad Bakhsh v. The State PLD 1956 SC

420. Apart from that we have also noticed that the said statement was recorded at a time when the appellant was in the custody of the police on physical remand, it was allegedly made after more than five months of the occurrence and many of the necessary formalities for recording of such a statement had admittedly not been fulfilled by the Magistrate concerned. The appellant, in his statement recorded under section 342, Cr.P.C. had categorically denied making of any such statement before P.W.11. Even otherwise the said statement allegedly made by the appellant has failed to inspire our confidence as we are not ready to believe that the appellant took the deceased to his house, administered an intoxicant to him, put him to sleep, then the appellant himself also went to sleep, woke up later on and thereafter, strangulated the deceased with a rope which he incidentally found to be available nearby. We have found such a story to be offensive to common prudence and normal conduct. Thus, this piece of evidence relied upon by the prosecution against the appellant has also been discarded by us out of consideration.

17. The rope and the gunny bag recovered with the dead body were inconsequential in this case as the said items could not connect the appellant with the crime in question. The wrist watch and the ring, stated to be those of the deceased, allegedly recovered from the house of the appellant on 30-3-1993 vide recovery memo. Exh.P.E. were admittedly recovered after nine days of the appellant's physical remand with the police. The appellant, in his statement recorded under section 342, Cr.P.C. had categorically denied leading the local police to his house for the purposes of the said recoveries. The house from where the said recoveries were affected was admittedly- inhabited by others also apart from the appellant. Thus, it could not be said that the said recoveries had been affected from the appellant's exclusive possession. Muhammad Ramzan (P.W.3), the alleged witness of the said recoveries, was a first paternal-cousin of the deceased. It is also significant to notice that the said wrist watch and the ring had never been formally identified by anybody to be those of the deceased. The words Allah Diwaya or the initials A.D. could easily have been inscribed on those items for foisting the said items as recoveries of the deceased's items from the appellant. Even otherwise Allah Diwaya is a common name in the villages in the region in question and mere presence of those words on any item could not positively connect the said items with the deceased in this case. The prosecution had failed to produce any goldsmith or a watch seller as a witness so as to directly or positively connect .the said items, with the deceased. In this context the learned Assistant Advocate-General has referred to a suggestion made by the defence to Aman Ullah complainant (P.W.4) whereby ownership, of the ring in question had been attributed to the deceased. We have found that the said suggestion had been made by the defence in a different context and at any rate, the said suggestion made to the witness by the learned defence counsel was not in line with the stand taken by the appellant in his statement made under section 342, Cr.P.C. Thus, to our minds nothing turns on that suggestion and the onus lying on the shoulders of the prosecution did not get completely discharged by such a stray suggestion by the defence.

18. The medical evidence produced by the prosecution in the present case could only point out that the deceased died of strangulation. It could not identify or locate the person who had strangulated the deceased. The prosecution had also failed to prove any motive on the part of the appellant to commit this murder. As noticed above the motive spelt out from the alleged confessional statements of the appellant bordered on absurdity as he had admittedly divorced his wife about six months before the alleged murder.,

19. For what has been observed above we have arrived at a confident finding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The appeal is, therefore, allowed, the impugned judgment passed by the learned Sessions Judge, Vehari on 26-9-1995 is hereby set aside and the appellant is .acquitted of the charge against him. He shall be released from jail forthwith, if not required in any other case.

20. As the appeal filed by Talib Hussain appellant has been accepted, with a resultant setting aside of his conviction and sentence recorded by the learned F trial Court, and he has been acquitted by us, therefore, Murder Reference No.259 of 1995 is answered in the negative. Death sentence not confirmed. Q.M.H./M.A.K./T-55/L Appeal accepted.