2004 P Cr (PLP)

5. It has been argued on their behalf that circumstantial evidence in the instant case in the shape of last‑seen of the deceased in their company is not worth the while and the tame has wrongly been relied upon by the learned trial Court; that there was no recovery of any crime‑weapon from them; that neither any motive with them was alleged by the complainant in the F.I.R. nor it stood mentioned in the statement under section 161, Cr.P.C. of the witnesses and the introduction of motive by P. W.1 at the trial was an afterthought on his part and the same was obviously intended to strengthen the prosecution case against them; that their alleged extra- judicial confession was inadmissible in evidence being joint and so the learned trial Court has erred in relying upon the same; that the medical evidence in the instant case was inconsequential as the dead body was almost in the shape of a skeleton and so it was not identifiable; that it was a blind murder and it has been proved on the record that the deceased had the enmity with other persons as well and it is quite possible that any of his such enemies had killed him; that the investigation in this case was not fair and so it could not be used as a circumstance in support of the other evidence on record against them; and that in any case the prosecution as per it's evidence on the record has failed to bring home the guilt to them beyond any shadow of reasonable doubt and so the impugned judgment of their conviction and sentence is not liable to be sustained.

6. As against the same the learned State Counsel has supported the impugned judgment saying that the same is well‑reasoned and based upon the evidence on the record, and that the prosecution as per it's evidence on the record has successfully brought home the guilt to them and so they were rightly convicted and sentenced.

7. I have carefully considered the arguments made from both the sides with the help of available record.

8. The prosecution in order to prove the charge against the appellants has mainly relied upon the circumstantial evidence in the shape of last‑seen of the deceased in the company of the appellants, their extra- judicial confession, medical evidence, motive, absconscion and the circumstance of the investigation.

9. The learned trial Court has relied upon all such pieces of evidence against them. It on the basis of the same has found them linked up with the Qatl‑e‑Amd of the deceased and causing the disappearance of his dead body in order to screen them off the legal punishment. It with the same has convicted and sentenced them as mentioned above.

10. The evidence of complainant Dr. Naseer Ahmad Chaudhary (P.W.1) is only to the effect that the deceased Muhammad Khan was Munshi at his agricultural farm near Ghovindi Check Post, Hadyara, who missed therefrom on 22‑10‑1999. He searched for him and during the same his wife had told him that the two appellants had informed her that they alongwith the deceased were returning after viewing VCR on the said date and in the way a motorcyclist had called him (deceased) and he thereafter was not traceable till 28‑10‑1999, when his dead body was found lying in a bag in the bunker and a rope was lying near it. They took the dead body and the rope to his Dera. He thereafter had made statement Exh.P.A. before Nazir Ahmad, S.‑I. the appellant used to say to him that the deceased was not faithful to him. They wanted him to appoint them their Munshi in his place.

11. His evidence regarding the accompanying of the deceased with the appellants is based on mere hearsay. The same, thus, carried no value in the eve of law. It, therefore, did not deserve to be given any weight in the matter.

12. As regards the recovery of the dead body of the deceased, the same is also of no much consequence to form view about the guilt of the appellants. I will discuss this aspect in detail while dealing with the medical evidence on the record. Here I leave this question from any further discussion on the same.

13. As regards the motive narrated by him, this was disclosed by him at the trial and not in F.I.R. Exh.P.A. The disappearance of the deceased from his farm as per his evidence was on 22‑10‑1999 and his dead body was traced out six days after the same. His statement firstly was recorded on 6‑7‑2000. It, thus, was about seven months after the incident. This gives rise to presumption that had this story of the motive been true, then he must have mentioned the same in Exh.P.A. He has admitted in the cross‑examination that he has narrated that part of his evidence only before the Court after eight months of recording of F.I.R. Exh.P.A. and it was not before any other person including the police. The story of the motive has appeared only in his statement and not of any other P.W. The introduction of such story with delay of 7/8 months is significant. The same is not readily believable due to its narration only before the Court and not anybody else and at the initial stage. This, thus, seems an improvement on his part and with obvious design to strengthen the prosecution case. So the motive narrated by him is not worth believing and the same has wrongly been believed by the learned trial Court.

14. It may be mentioned here that this witness definitely had no enmity with the appellants but this fact alone cannot stamp his testimony with truth which even otherwise as regards the accompanying of the deceased with the appellants is based upon hearsay and not of his direct knowledge. His evidence, therefore, on that aspect of the matter is of no consequence. The learned trial Court, thus, has attached undue importance and weight to the same.

15. The last‑seen evidence of the prosecution has been furnished by Mst. Bashiran Bibi (P.W.2). She is the widow of the deceased. She has stated that above 8/9 months ago at about 4‑30 p.m. her deceased husband bad left the house after having meal with the appellants to view VCR. The two appellants returned at about 10‑00 p.m. In the morning, she alongwith Mst. Taj Bibi inquired from them about him (deceased). They told her that he had gone with a motorcyclist from the way back to their house. They could not satisfy herself about his accompanying motorcyclist. They searched for him for about 6/7 days but he was not traceable. One day, she had gone out to collect wood. She felt bad smell near the bunker and saw a bag lying there. On her hue and cry, the guests who were staying in her house reached there. Dr. Naseer Ahmad, Altaf and Imtiaz also reached there. They all dragged out the bag from the bunker. They identified it to be the dead body of the deceased. A rope was around it's neck. The bag and the rope belonged to the farm of complainant Dr. Naseer Ahmad.

16. She seems to have much improved her statement at the trial than the one made by her before the police in Exh.D.A. she was duly confronted with her said statement in respect of the improvements made by her at the trial. It was found that she did not state before the police that her deceased husband had accompanied the appellants from his house to view VCR and that these appellants returned to their house at about 10‑00 p.m. It was also found that she did not state before the police that on the next day in the morning she alongwith Mst. Taj Bibi had gone to the appellants to inquire that as to why her husband has not returned. It was also found that she did not state before the police that the appellants had told her that the deceased had gone with the motorcyclist from the way to his house. It was also found that she did not state before the police that she inquired from the appellants that who was the motorcyclist. She also did not state therein that the appellants could not satisfy her about the accompanying of her husband with the motorcyclist and their faces turned pale or fainted.

17. This all shows that it was not her initial stand before the police that her deceased husband had left the house with the appellants. This improvement in her stand in that regard at the trial seems with obvious design to link up them with the missing of the deceased. This seems a dishonest effort on her part to strengthen her story. This position in her testimony has persuaded me not to rely upon her safely. The learned trial Court, thus, has erred in relying upon her evidence in that regard. The last evidence in this case is of no consequence.

18. The evidence of extra‑judicial confession of the appellants has been furnished by P.W.4 Shameer and P.W.5 Shehbaz. Shameer has stated that on 1‑12‑999, he, Nawaz, Allah Ditta and Shehbaz were present at the Dera of Shehbaz. At about 8‑00 a.m. the appellants came there and they told them that they had committed a mistake by murdering Muhammad Khan deceased in Lahore. They asked them to get them pardon from the deceased's heirs or they be handed over to the police. They produced them before the police.

19. The evidence of Shehbaz is almost on the same line. It may be mentioned here that he firstly refused to take oath before the trial Court prior to the recording of his statement. The learned trial Court, therefore, did not record his statement. He then again was brought to the Court by the learned counsel for the complainant and then his statement was recorded. This shows that he perhaps was firstly reluctant to make any statement on oath and then possibly on the asking of complainant's side had made statement. The learned trial Court has taken this aspect in the way that in some areas to take oath in respect of true facts even is considered sin. Any way, leaving this aspect aside, their evidence even otherwise discloses a joint extra‑judicial confession of the appellants. The same certainly was not admissible in evidence and this could not be given effect too. The learned trial Court, therefore, has erred in relying upon the same. This approach of it was not in consonance with the law on the subject. Their evidence, therefore, is excluded from consideration.

20. Even otherwise, such type of evidence has always been considered of weak type. The same cannot be made basis to determine the question of guilt or innocence of accused till the same is corroborated by any other incriminating and confirmatory evidence. In this regard the reference is made to the case of Tyyab Hussain Shah v. the State 2000 SCMR

683. It may be mentioned here that no worth the while evidence is there in the case to furnish corroboration to the same.

21. The medical evidence has not furnished any support to the said piece of evidence because of the fact that P.W.8 Dr. Imran Javed has clearly stated that the dead body was not identifiable. Further according to him, the face of the dead body did not contain any flesh. There was no sign of throttling, strangulating or ligature mark on the neck of the same. It is, thus, clear that it could not be said with certainty that the dead body was in fact of the deceased. He has also stated that the cause of death in this case could not be given. The medical evidence, therefore, has not supported the circumstantial evidence. The learned trial Court, therefore, has wrongly used the same as supportive to the same.

22. The learned trial Court in a very casual way has mentioned that the appellants had absconded after the occurrence. It has used such circumstance as of corroboration to the testimony of P.W.2 Mst. Bashiran Bibi. There but has not been found any evidence of the prosecution on the record, to show that they in fact had absconded after the occurrence. This circumstance, thus, has wrongly been used as of corroborative value to her evidence.

23. Even otherwise, it is noticeable that persons, who are suspected by the police flee away out of fear of their arrest. It always may not be necessarily due to the fact that they feel themselves guilty. The fear of arrest even can compel them to get away to evade arrest: So, there was no such thing of the type of absconscion of the appellants, which could be used as a circumstance in corroboration to the circumstantial evidence.

24. The recovery of pistol P.1 of the deceased from his house is inconsequential. It is firstly because of the fact that there is no evidence to show that it in fact was used during the commission of the crime. Secondly, it belonged to the deceased and not to any of the appellants. Therefore, the evidence of recovery of the same is of no effect. The learned trial Court has also used this piece of evidence as of corroboration to the circumstantial evidence. This was as a result of erroneous approach to the matter. The recovery of such weapon was hardly of any consequence as regards the question of guilt of the appellants in the matter.

25. The learned trial Court has also used the circumstance of investigation supportive to the circumstantial evidence against the appellants. There when had not been found any reliable evidence against them, the same alone then could not be used for support to the prosecution case. The learned trial Court, therefore, has erred in using the same as supportive to the circumstantial evidence on the record.

26. I am from the above discussion is fully convinced that the prosecution as per it's evidence on the record has failed to bring home the guilt to the appellants beyond any shadow of reasonable doubt. The impugned judgment of their conviction and sentence, therefore, is not liable to be sustained.

27. Consequently, the instant appeal is accepted, the impugned judgment of their conviction and sentence is set aside and they (appellants) are acquitted of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if not required in any other case. N.H.Q./M‑2433/L Appeal accepted.