1991 PLP 866 (MLD)

10. The complainant claimed through the F.I.R. that he felt dissatisfied with the explanation offered by Muhammad Ali, Sikandar and Manzoor abovesaid and started searching for Mushtaq deceased of his own.

11. He further claimed that in the process he came across Asif (given up P.W.) and Ghulam Muhammad (P.W.6) who .informed him that about 5/6 months earlier, they were going to the house of Muhammad Ali accused at night for some personal work and had met these accused persons on the way who were accompanied by Mushtaq deceased and were informed that all of them were looking for their lost buffaloes and would return after 2/3 hours, at which the said Asif and Ghulam Muhammad P.Ws. started waiting for them at the Dera of Muhammad Ali arid on their return, Mushtaq deceased was not with them and on their inquiry, the accused persons had told them that Mushtaq deceased had gone away to his brother in Mandi Baliauddin.

12. The complainant further claimed that on hearing this story from these two P.Ws. he became worried.and went to the Dera of Muhammad Ali accused alongwith Saee Muhammad (given up P.W.), Faiz Muhammad (P.W.1) and Muhammad Hussain (P.W.5) and inquired from the accused persons about Mushtaq deceased who after some reluctance confessed that they had murdered Mushtaq because he had developed illicit liaison with Mst. Bashiran, a daughter of Muhammad Ali accused and that these accused persons further informed them that they had even murdered Mst. Bashiran abovementioned and one Mst. Rasoolan who used to assist Mushtaq and Mst. Bashiran in this immoral affair.

13. After the registration of this F.I.R. on 21-1-1987, all the six accused persons abovementioned including the two appellants were arrested on 25-1-1987 whereafter Manzoor appellant allegedly led to the recovery of one identity card (Exh.P.4) of Mushtaq deceased which was buried in earth in a deserted place near link canal of Qadarabad. This happened on 26-1-1987. He had also pointed out the spot on the said canal on 27-1-1987 where he had allegedly thrown the dead body of Mushtaq deceased.

14. Bashir appellant had allegedly led to the recovery of wearing apparel of the deceased on 7-2-1987 from his Dera which consisted of a Salooka, a Chadar and a pair of shoes marked respectively as Exhs.P.l to P.3.

15. Further prosecution evidence against the accused persons consisted of the evidence relating to extra-judicial confession made by all the accused persons on 19-1-1987 before Faiz Ahmad (P.W.1) and Muhammad Hussain (P.W.5). The third witness relating to this piece of evidence, namely, Saee Muhammad was given up.

16. Ghulam Muhammad (P.W.6) was examined as having last seen Mushtaq deceased in the company of the accused persons.

17. This was thus the entire prosecution case against the accused persons who had pleaded their innocence to the charges in question and had attributed their implication on account of enmity and suspicion.

18. The defence had also produced Ghulam Rasool son of Roshan and Ghulam Rasool son of Khushi Muhammad as D.W.1 and D.W.2 respectively who had deposed that Mushtaq deceased was not employed with the accused persons as a labourer, a partner or a contractor.

19. So far as the evidence relating to the extra-judicial confession is concerned, it was specifically stated through the above-mentioned F.I.R. that the said was a joint confession made by all the six accused persons. Although Muhammad Hussain (P.W.5) claimed in his statement at the trial that all the six persons had made this confession one after the other but the same was obviously an afterthought and an improvement made at the trial and has to be ignored.

20. This being so, no reliance can be placed on this evidence relating to extra-judicial confession and the same is accordingly rejected.

21. The prosecution has claimed that after being murdered by the accused persons, the body of Mushtaq deceased was thrown in the Qadarabad link canal which body was obviously never recovered.

22. The prosecution further claims that an identity card of Mushtaq deceased was retained and preserved by Manzoor appellant and was produced before the Investigating Officer during the course of investigation. Likewise the prosecution also claims that Bashir appellant had led to the recovery of the clothes of the deceased after his arrest.

23. These recoveries do not inspire confidence. It is not believable that having murdered Mushtaq deceased, Bashir appellant or any of his co-accused would strip him of his clothes before the dead body was thrown into the canal and would retain these clothes to offer to the Investigating Officer to be used against them as a piece of evidence. Similar is the position of the retention and the consequent recovery of the identity card of Mushtaq deceased at the instance of Manzoor appellant.

24. Consequently, the evidence regarding the recoveries of these pieces of articles at the instance of the two appellants is also rejected.

25. This leaves us with the last seen evidence which has been offered by Ghulam Muhammad (P.W.6). He is a close relative of the complainant party. He has not offered any explanation of his visit to the Dera of Muhammad Ali accused on the night that he had allegedly gone there and had seen the deceased in the company of the accused persons. This piece of evidence is also not reliable.

26. Having thus analysed the prosecution evidence, I find that the prosecution case against the two appellants is not free from doubt, the benefit of which has obviously to go to the two appellants.

27. Consequently, Criminal Appeal No.254 of 1990 is allowed and the convictions and sentences recorded against the two appellants through judgment, dated 23-4-1990 of a learned Additional Sessions Judge at Gujrat are set aside.

28. Both the appellants are thus acquitted of the charges levelled against them. They are in custody. They shall be set at liberty forthwith if not required to be detained in any other case. N.H.Q./M-2619/L?????????????????????????????????????????????????????????????????????????????? Appeal accepted.