1996 P Cr (PLP)

Date of hearing: 15th October, 1995. This appeal is directed against the judgment, dated 15‑8‑1993 whereby the learned Additional Sessions Judge, Mianwali convicted the appellant Muhammad Hanif son of Ilam Din under section 364, P.P.C. and sentenced him to undergo imprisonment for life with a fine of Rs.25,000, in default of the payment of fine to further undergo three years' R.I.

2. The occurrence in this case took place on the night between 6/7 June, 1991 in the area of Chak No.1l/M.L. situated in Police Station Peelan, District Mianwali and the F.I.R. Exh.P.E. was got registered at the instance of Hakam Ali (P.W.8) on 7‑6‑1991 at about 7‑

00. The prosecution story in brief as narrated in the F.I.R. is that on the night between 6/7 June, 1991 the complainant alongwith Muhammad Sharif, Anwar Ali and Muhammad Anwar real brothers and Jamshed Aft son of Imam Din paternal‑cousin were present in the Baithak. At about I1‑30 p.m. Muhammad Anwar went to his house and the complainant alongwith aforesaid persons slept on the Chabutra of the Baithak. At about 6‑00 a.m., when the complainant woke up, he came to know through general public that a dead body of some unknown person was lying near the Pakka road leading from Chak No.12/ML to Chak No.10/ML. The complainant after reaching the place where the dead body was lying identified the same to be his brother Muhammad Anwar. The deceased was found received injuries on the right side of neck and head with sharp‑edged weapon. It is further alleged that in the village one Mst. Shameem alias Seema, a woman of lax character might have got murdered the deceased by Muhammad Hanif accused and co‑accused Muhammad Rafiq (since dead). It is further stated that the deceased had visiting terms with the said lady and the accused alongwith Muhammad Rafique co‑accused had also illicit relations with the said lady.

3. After the investigation, Muhammad Hanif appellant alongwith Muhammad Rafique co‑accused (since dead in jail) were challaned to face the trial under section 302/34, P.P.C. The appellant alone was charged under section 302, P.P.C. who denied the charge and claimed trial.

4. The prosecution in support of the case produced as, many as 12 witnesses. The statement of the appellant was recorded under section 342, Cr.P.C.; he opted to produce defence evidence but did not appear as his own witness under section 340(2), Cr.P.C.; the appellant refuted the prosecution allegations by stating that he had voluntarily appeared before the Investigating Officer and his detention was not shown by the police on 7‑6‑1991; was involved in suspicion due to enmity between his father and the deceased because of civil litigation regarding the land situated in Chak No.1l/ML and pleaded innocence. The learned trial Judge discarded the evidence of prosecution regarding the extra‑judicial confession made by the accused appellant before P W.6 Muhammad Iqbal as it was not corroborated by any independent witness; the learned trial Judge relying on the statement of P.W3 Abdul Qayum considering him as independent witness concluded the trial by observing that the actual commission of murder of the deceased by the appellant/accused is not established but it is established that he took away the deceased which means abducted deceased from the shop of P.W3 for the purpose of commission of murder of the deceased, hence, committed an offence under section 364, P.P.C. and sentenced him to life imprisonment accordingly.

5. Learned counsel for the accused/appellant vehemently contended that the ingredients of section 364, P.P.C. were not attracted, even the charge under section 364, P.P.C. was not framed; once the appellant was acquitted under section 302, P.P.C., the sentence under section 364, P.P.C. could not be awarded and the same is unwarranted.

6. Learned State Counsel conversely opposed the arguments advanced by the learned counsel and contended that the deceased was lastly seen with the appellant accused and the appellant accused played an actual part in calling out and taking away the deceased from the Bakery of P.W3 which tentamounts abduction of the deceased for the purpose of commission of murder of the deceased.

7. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record and the law cited at the bar with their able assistance.

8. Hakam Ali P.W.8, the complainant while recording the F.I.R. Exh.P.E. expressed his strong suspicion that Mst. Shamim had got murdered the deceased by the appellant accused and the co‑accused (since dead) and even stated that possibility was there that some one else might also be involved for the commission of murder besides the aforementioned accused persons, but nowhere mentioned that the deceased was abducted by the appellant accused.

9. P.W.3 Abdul Qayum stated that on the day of occurrence, he was sitting at his Bakery at about i1‑30 p.m. alongwith Abdul Latif the deceased also came to his shop at about 11‑45 p.m. after 10/15 minutes the appellant accused also appeared there and called out the deceased and both went from there; the co‑accused was also present with the appellant accused at that time. P.W3 in his statement neither alleged nor stated that the deceased was either forced or induced deceitfully to accompany the, accused and his co‑accused (since dead).

10. The contention of the learned counsel for the appellant accused that "took away" as observed by the learned trial Judge means "abduction" is an erroneous and is without force as the ingredients of section 364, P.P.C. are attracted to an offence if it qualifies the necessary efforts of the section i.e. kidnapping or abduction in an order to be murdered or so disposed of as to put in danger of being murdered. Kidnapping as defined by section 359, P.P.C. is of two kinds: (i) Kidnapping from Pakistan, and (ii) kidnapping from lawful guardian. The ingredients of kidnapping as mentioned in sections 360 and 361, P.P.C. are not attracted as kidnapping can be of male less than 14 years of age if he is taken away or removed from the custody of his guardian. "Abduction" as defined in section 362, P.P.C. means any person induced by any deceitful means or compelled by force to go from any place. The ingredients of kidnapping and abduction are necessary elements to frame charge under section 364, P.P.C. In case in hand, there is nothing on record that either the deceased was compelled by force to accompany the appellant accused or was induced by any deceitful means. Even no suggestion was put to P.W3 from whose shop the deceased was called out by the accused appellant.

11. The statement of P.W3 Abdul Qayum is not confidence inspiring, as observed by the learned trial Judge, as is neither corroborated by the circumstantial evidence nor by the P.Ws. as neither Zahid and Latif P.Ws. as mentioned by him in his statement were produced before the Court nor Lambardar in whose Baithak he had made statement before Muhammad Ashraf Hashmi, S.I. were produced as P.W. Abdul Qayum P.W.3 admitted in cross‑examination that he had stated before Muhammad Ashraf Hashmi, SJ. that the appellant/accused had illicit relations with Mst. Shamim and had seen the appellant accused committing Zina with her. In view of the allegations of such a heinous nature, P.W.3 cannot be considered as an independent witness in the circumstances of the case. Hakam Ali P.W.8 complainant alleged that the appellant and the co‑accused were having illicit relations with Mst. Shamim but neither any Punchait was held nor the police was informed in that regard. The P.W. stated in cross‑examination that "public remained at the spot till 3/4 p.m. I also remained with the police during this period, nobody told me as to who was the real murderer of Anwar deceased".

12. It is interesting feature of the case that the whole prosecution story runs around Mst. Shamim and P.W.8 Hakam Ali. The complainant brother of the deceased had expressed strong suspicion that Mst. Shamim had got murdered the deceased by the appellant accused and his co‑accused (deceased) but Mst. Shamim was neither associated with the investigation of the case nor was examined as P.W. The investigation from the aforementioned facts is proved to be mala fide as a result of which some obvious facts have not been either brought on record or proved which might have given corroboration either to the prosecution or defence case. In such situation, as observed in case Shankar Behare v. State AIR 1969 Orissa 73: "The duty of the Court is to direct an acquittal". The appellant was named in the F.I.R. merely on suspicion. It is well‑settled that suspicion by itself however, strong it may be, is not sufficient to take the place of proof of warrant of finding of guilt of the accused. The onus is always upon the prosecution to prove the guilt of the accused.

13. It is also an elementary rule of criminal law and procedure that the prosecution must establish its case; the accused is presumed to be innocent until his guilt is established beyond any reasonable doubt; where the essential ingredients of an offence has not been established, then it cannot be possibly said that the offence has been brought home to the accused and that his guilt has been proved beyond all reasonable doubts. The learned trial Judge discarded the extra judicial confession made by the appellant/accused before the Councillor and had acquitted him under section 302, P.P.C., merely on suspicion without E any confidence inspiring evidence and without framing the charge under section 364, Cr.P.C., which is ab initio, illegal and unwarranted arid the prosecution has failed to prove its case beyond reasonable doubt.

13. The upshot of the above discussion is that it being a case of no evidence, the appeal is accepted. The conviction and sentence awarded by the learned trial Court is set aside and the appellant is directed to be released if his detention is not required in any other case. N.H.Q./M‑2639/L?????????????????????????????????????????????????????????????????????????????? Appeal accepted.