1999 PLP 3022 (MLD)

3. Briefly stated the case of the prosecution as. set up in the. F. I. R., registered on the statement of one Muhammad son of Khuda Bakhsh aged 65/66 years, caste Arain r/o. Chak No. 217/TDA, Police Station Fatehpur that on 18-6-1992 at about 8.00 a.m. Muhammad Ashraf one of the accused who is related to him as the son of his niece in the company of his co-accused Manawar Hussain who is related to Muhammad Sharif accused as his sister's husband, came to his house and in the presence of Muhammad Idrees and Maqbool Ahmed P. Ws. got Abdul Karim accompanied on the pretext of making purchases of Tobacco at cheap rates from Mandi Faizabad. Abdul Kareem at that time was having -Rs. 15,000 in a purse of black colour having an engraving of Faisal Mosque. He at that time was having a handkerchief on the corner of which his name has been engraved. Abdul Kareem also took 20 empty bags with him. It was further alleged that Abdul Kareem did not come back. He went to Mandi Faizabad and made inquiries from the accused Manawar and Muhammad Ashraf but they did not give any satisfactory. response. As such he suspected murder of Abdul Kareem and got, the case registered vide F. I. R Exh. P. D.

4. During the course of investigation Muhammad Ashraf accused led to the recovery of two empty bags P.1/1.2, ring P.2 and a spectacle P.3, taken into possession vide memo. Exh. P. A. attested by Mureed Abbas and Muhammad Ibrahim P. Ws. Muhammad Ashraf accused also led to the recovery of dagger P.11, taken into possession vide memo. Exh. P. G. attested by Muhammad Yousuf, Muhammad Sharif and Sarwar Sajid P. Ws. Muhammad Ashraf accused also pointed out the place of murder of Abdul Kareem.

5. Munawar Hussain accused led to the recovery of wrist watch P.4, Identity Card of Haji Muhammad P.5 and a purse P.6 vide memo. Exh. P. B. attested by Mureed Abbas and Muhammad Ibrahim P. Ws. Munawar Hussain accused also led to the recovery of dagger P.9, taken into possession vide memo. Exh. P. F. attested by Muhammad Yousaf, Muhammad Sharif and Sarwar Sajid P. Ws. Munawar Hussain accused led to the recovery of a cycle.

6. Muhammad Rafiq accused led to the recovery of handkerchief P.7 and a leads P.8, taken into possession vide memo, Exh. P.C. attested by Mureed Abbas and Muhammad Ibrahim P. Ws. Muhammad Rafiq accused also led to the recovery of dagger P.10, taken into possession vide memo. Exh. P. F. attested by Muhammad Yousaf, Muhammad Sharif and Sarwar Sajid P. Ws.

7. On completion of investigation report under section 173, Cr.P.C. was submitted against all the accused and then after supply of copies etc., charge against all the accused was framed under sections 364, 302, 201 and 34, P. P. C. to which they did not plead guilty and claimed trial.

8. It may also be noted here that with the present appellants one Muhammad Rafiq was also tried alongwith present appellants but he was acquitted by the learned trial Court.

9. Prosecution in order to prove its case produced nine witnesses in all Thereafter, the statement of the appellants recorded under section 342, Cr. P. C. in which they pleaded not guilty and claimed innocence.

10. Learned counsel for the appellants has read before me the prosecution evidence and the statement of the appellants recorded under section 342, Cr. P. C. After reading the same, they submits that there is delay of about one month 15 days in lodging the F. I. R. without any plausible explanation. They further submit that on the same evidence one co-accused of the appellants has been acquitted by the learned trial Court. They also further submit that there is no direct and circumstantial evidence against the appellants. They also submit that the witnesses produced by the prosecution in the instant case are near relations of the deceased. They further submit that extra judicial confession in the instant case is joint one which is not admissible in evidence. Learned counsel for the appellants also submit that learned trial Court has acquitted the appellants on the charge under section 364, P. P. C. and section 201, P. P. C., so no case is made out against the appellant under section 302, P. P. C.

11. On the other hand, learned counsel for the State submit that recoveries were effected from the appellants, that there is a evidence of last seen, that the witnesses produced by the prosecution are inimical towards the appellants, although, they are close relative of the deceased Abdul Kareem.

12. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned Trial Court with their assistance. In the instance case, occurrence took-place on 8-6-1992 but the F. I. R. was lodged on 2-8-1992 without any plausible or reasonable explanation whatsoever. In the instant case, there is no eye-witness of the occurrence and there is no A direct and circumstantial evidence against the appellants. One of the co-accused of the appellants namely Muhammad Rafiq has been acquitted by the learned Trial Court and case of the present appellants is on similar footing to that of Muhammad Rafiq. The evidence of extra judicial confession is joint one which is not admissible in the eye of law. Learned Trial Court has already disbelieved the evidence of abduction of the deceased Abdul Kareem and also disappearing the dead body of deceased.

13. In this view of the matter, appellants are extending the benefit of doubt and they are acquitted from the charge. The conviction and sentence awarded to the appellant by the learned trial Court is set aside. They are on bail. They are discharged from their bail bonds. H.B.T./M-1063/L Appeal accepted.