2006 PLP 986 (YLR)

MIAN MUHAMMAD NAJAM-?UZ-ZAMAN, J.

Appellant Saeed Ahmed son of Muhammad Ramzan was tried in case F.I.R. No.854/1999, dated 25-12-1999 registered under section 302, P.P.C. at Police Station A-Division, Sheikhupura by the Additional Sessions Judge, Lahore who vide judgment dated 19-8-2000 convicted the appellant under section 302(c), P.P.C. and sentenced him to fourteen years' R.I. He was also directed to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default whereof to further undergo three months' S.1. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Challenging his conviction and sentence the appellant filed Criminal Appeal No.1268 of 2000 while the complainant has filed Criminal Revision No.696 of 2000 seeking enhancement of sentence of the appellant. Both these matters are being disposed of together by this judgment.

3. Succinctly the prosecution case as narrated in the F.I.R. is that on 24-12-1999 the complainant dropped his deceased Adnan who was a medical representative at Bus Stand, Sheikhupura to go to Narang in respect of his job, that on the same day at 8-00 p.m. he received a telephonic call from his son, in a frightened voice, not to return to home due to non-availability of transport etc. On the next day, at about 8-00 a.m. the police brought medical representative bag of the complainant's son which was found from Dosehra ground near Railway Station Primary School containing Municipal Library Card and cash of Rs.702 and other papers. The complainant further stated that some time afterwards he received information that dead-body of his son Adnan Ashraf was found from the Agricultural form. He went to the spot and identified the same. He also stated that some unknown accused committed the murder of the deceased by making tire shot in his head. While the complainant was present near the dead-body of his son, friends of his deceased son also reached the spot. Out of them, Waheed alias Jugnu informed the complainant that a day before at 3-30 p.m. he received telephonic call from Adnan deceased from the house of Muhammad Saeed. He further stated that on receipt of said information, he inquired from Saeed accused regarding his son who replied that deceased had come to his house at 3-30 p.m. and remained there, observed Aftari and left his house at 8-00 p.m.

4. After the registration of the case Muhammad Ashraf Goraya, S.-I. (Investigating Officer) proceeded to the place of occurrence, and after inspecting the dead body, prepared inquest report Exh.PN and sent the dead body to the mortuary for post-mortem examination. The police officer also collected blood-stained earth vide memo. Exh.P.F. He also collected crime empty P.8 vide memo. Exh.P.G. and also prepared rough site plan Exh.P.Q. This police officer also recorded the statements of the witnesses. He also secured red bag P.9 along with papers vide memo. Exh.P.H. on 3-1-2004 Saeed accused was produced by Anwar Saeed and Dilshad Nasir P.Ws. at about 2-00 p.m. On 6-1-2000 the appellant led to the recovery of pistol P.10 from his house which was taken into possession vide memo. Exh. P.J. On the same day the appellant led to the recovery of motorcycle P.11 which was secured vide memo. Exh.P.L. After completion of investigation the Investigating Officer submitted challan before the trial Court where prosecution produced fifteen witnesses including Murad Ali P.W.10, Muhammad Rafiq P.W.11 and Anwar Saeed P.W.12 to prove the charge against the appellant. According to Murad Ali P.W.10 and Muhammad Rafiq P.W.11 they saw the deceased in the company of appellant on the night of occurrence and on the next day they came to know about the murder of the deceased. According to Anwar Saeed P.W.12 the appellant confessed his guilt before him.

5. Trial Court also examined the appellant under section 342, Cr.P.C. the appellant while denying the charge pleaded his innocence.

6. After appraisal of evidence available on record trial Court vide judgment dated 19-8-2000 convicted and sentenced the appellant as narrated earlier.

7. Learned counsel for the appellant submitted that the entire case of prosecution mainly rests upon the statement of witnesses namely Murad Ali P.W.10 and Muhammad Rafiq P.W.11 who had statedly seen the deceased in the company of the appellant on the night of occurrence and on the next day they came to know about the murder of Adnan deceased, as well as the statement of Anwar Saeed P.W.12 before whom allegedly the appellant had confessed his guilt, the said type of evidence i.e. last seen and extra-judicial confession is also considered to be a very weak type of evidence and the same could not be relied upon in the absence of any independent corroborative piece of evidence for upholding the conviction on the charge of capital sentence; that the said witnesses also fall within the category of interested witnesses because the witnesses who has seen the deceased in the company of the appellant were the clients of the complainant of this case who is a practising lawyer in District Sheikhupura and Anwar Saeed P.W.12 is a colleague (Lawyer) of the complainant and all the said witnesses has cordial relations with the complainant. It was submitted that there was no occasion for the appellant to confess his guilt before Anwar Saeed and whatever was stated before the trial Court was nothing but a cock and bull story. Further argued that the medical evidence also belied the ocular account according to the prosecution case the deceased and the appellant had Aftari, thereafter both of them were seen together by Murad Ali and Muhammad Rafiq P.Ws. 10 and 11 respectively at 8 and 8-30 p.m. and thereafter allegedly the murder of Adnan was committed whereas the Medico-legal reports reveals that at the time of post-mortem examination stomach of the deceased was full of semi-digested food which means that the occurrence took place much earlier than tit,: deceased was seen in the company of the appellant was narrated by the witnesses. It was submitted that prosecution case to the extent of motive for the commission of this offence as well as the recovery of incriminating articles at the instance of the appellant had already been disbelieved by the trial Court and thus there is nothing on record to corroborate the evidence of last seen and extra-judicial confession. It was lastly argued that in the circumstances appellant is entitled to get the benefit of doubt. On the contrary, learned Law Officer assisted by learned counsel for the complainant while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellant. It was submitted that one day prior to the occurrence complainant had received a telephonic call of his deceased son who addressed the complainant in a frightened voice. The making of telephonic call from the house of the appellant at the number of his father by the deceased not only stands established from the statement of Muhammad Razzaq P.W.9. Telephone Engineer, but the same facts also stands admitted by the appellant. It was also submitted that on the same day deceased was seen in the company of the appellant by Murad Ali P.W.10 and Muhammad Rafiq P.W. 11 and that the appellant had also confessed his guilt before Anwar Saeed P.W.12, the ex-President of District Bar Sheikhupura, a respectable of the locality. It was also argued that in the light of said evidence trial Court should have awarded the maximum sentence but had erroneously taken a lenient view while convicting and sentencing the appellant. 7-A. Heard. File perused.

8. It is a case of unseen occurrence. The entire case of the prosecution rests upon the evidence of last seen as narrated by Murad Ali P.W.10 and Muhammad Rafiq P.W.11, the evidence of extra-judicial confession of the appellant as narrated by Anwar Saeed P.W.12, the recovery of incriminating articles i.e. pistol P.10 and motorcycle P.11 and the motive for the commission of this offence.

9. As for the recovery evidence and the motive for the commission of offence, case of the prosecution has already been disbelieved on valid and sound reasoning by the trial Court. Counsel for the complainant has also not addressed on this point challenging the legality of the impugned judgment.

10. About seeing the deceased in the company of appellant, statedly, Murad Ali P.W.10 has seen them at 8-00 p.m. whereas Muhammad Rafiq P.W.11 at 8-30 p.m. Statedly both of them had asked the appellants as to where he was going, on which he replied that he was going to drop Adnan at his house. Not only that the evidence of last seen is always considered to be a very weak type of evidence, that conduct of both the witnesses also seems to be very unnatural. There was no occasion for these witnesses to stop the appellant and to ask as to where he was going. Both of them admittedly were clients of father of the deceased who was a practising lawyer at District Sheikhupura and thus the possibility that their evidence was tailored during the investigation could not be ruled out. Even otherwise, according to the prosecution's own case deceased and the appellant had taken the Aftari before leaving the house. This occurrence took place on the night between 24/25-12-1999 and during those days time of Aftari was about 5-00 p.m. On the other hand statement of Dr. Shaukat Hayat, Medical Officer, DHQ (P.W.5), reveals that he found the stomach of the deceased full of semi-digested food. Normally the food is digested in the stomach within 3 to 4 hours, the observation shows that the deceased was done to death after one or two hours of the Aftari time and before 8-00/8-30 p.m. when statedly deceased was seen in the company of Saeed Ahmad appellant as narrated by Murad Ali P.W.10 and Muhammad Rafiq P.W.11 and in this view of the matter the evidence of both the said witnesses becomes doubtful.

11. Statedly on 3-1-2000 the appellant had confessed his guilt before Anwar Saeed P.W.12 and asked him for help/support. It is not understandable as to why the appellant would go to confess his guilt before this witnesses when admittedly Iqbal Dar a famous councillor of the area was also available. The accused could have easily asked for the help of said councillor who could have exerted his influence over the police. The bare perusal of the statement of Anwar Saeed P.W.12 also shows that his conduct was very unnatural, admittedly he made no promise with the accused/appellant for extending any sort of help. Thus there was no occasion for the appellant to accompany Anwar Saeed (P.W.12) to the police station. Similarly the appellant while confessing his guilt allegedly had given all the minor details of he occurrence including his meetings with Murad Ali P.W.10 and Muhammad Rafiq P.W.11 and as observed earlier the evidence of both these witnesses is not free of doubt, thus it could easily be said that whatever was stated by Anwar Saeed P.W.12 was nothing but an after-thought. We have also observed that there is not an iota of evidence/circumstance on the record to corroborate this piece of evidence.

12. It is well-settled that in a case of circumstantial evidence prosecution must produce series of circumstances which interlink with each other forming a complete chain which touches the dead body and the neck of the accused. Their lordships of the apex Court in case titled Sarfraz Khan v. The State (1996 SCMR 188) when dealing with the case of circumstantial evidence observed as under:-- "Adverting to the circumstantial evidence of "last seen", it is well-settled that circumstantial evidence should be so inter-connected that if forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis."

13. In the present case the evidence relied upon by the prosecution is not worth-reliance and the present case is nothing but a pack of lies. Accordingly, the instant appeal accepted, conviction and sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.

14. In the light of aforesaid discussion, finding no force in Criminal Revision No.696 of 2000 the same stands dismissed. H.B.T./S-471/L??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.