1985 P Cr (PLP)

‑‑‑--S. 302‑‑Identification of accused in identification parade only showing that accused went to persons (who identified accused) looking for deceased‑‑Held, this fact by itself could not prove fact that it was accused who was responsible for murder of deceased.‑‑[Identification]. (f) Penal Code (XLV of 1860) ‑‑‑S. 302‑‑Investigation‑‑F. I. R. leading investigation into two directions, one against woman suspected of foul play in F.I.R. and other, against family of deceased who were not happy with marriage of deceased with said woman‑‑Police not sufficiently probing said areas and instead going after accused merely on a suspicion‑‑Investigation, held, had not done its job properly in bringing all facts before Court. (g) Criminal Procedure Code (V of 1898)‑‑-- ‑‑‑S. 439‑‑Penal Code (XLV of 1860), S.302‑‑Revision against acquittal‑‑Prosecution case resting entirely on circumstantial evidence‑ Identification of headless body of deceased found doubtful Motive disbelieved‑‑Recovery of scooter, blood‑stained clothes and shoes of deceased at instance of accused showing signs of padding‑‑Evidence of recoveries not relied upon‑‑Investigation failing to connect scooter (allegedly owned by deceased) with deceased‑‑Identification of accused in identification parade also not found to be helpful to prosecution‑ Investigation not doing its job properly in bringing all facts before Court‑‑Trial Court, held, justified in acquitting accused for want of evidence‑‑Order of acquittal maintained in circumstances. Sh. Zia Ullah for Petitioner. Ziarat Shafi respondent, was tried for an offence under section 302, P.P.C. for the murder of Manzoor Ahmad Tamimi, a younger brother of Maqbool Ahmad Tamimi, the present petitioner, and the complainant, in the case. Malik Nazir Hussain Awan learned Additional Sessions Judge, Lahore vide his judgment dated 25‑2‑1984 has acquittal Ziarat Shaft of the charges against him for want of evidence. The petitioner seeks revision of the orders through the present petition.

2. Manzoor Ahmad Tamimi, an Income Tax Practitioner left his house in the morning of 22‑4‑1982. When he did not return for a couple of days his brother Maqbool Ahmad, the present petitioner, got a case registered under section 342, P.P.C. on 25‑4‑1982 with Nawan Kot Police suspecting foul‑play at the hands of the wife of the deceased who was a woman of ill‑repute and had married the deceased a couple of weeks earlier, without the consent of the parents of the deceased. On 23‑4‑1982 Muhammad Din Lambardar informed Chunian Police of discovery of a naked headless body in a Khal. Post‑mortem examination of the dead body was conducted and it was buried as unclaimed. Subsequently during investigation the police discovered that Ziarat Shaft was responsible for the murder of Manzoor Ahmad deceased. Ziarat Shaft got control of Montgomery Flour Mills on the death of his father. But later when Ziarat was away to Japan, Basharat Shaft, his brother took over the control of the Mills and Ziarat Shafi respondent suspected that Maqbool Ahmad Tamimi petitioner and his brother Abdul Ghafoor, both brothers of the deceased, and employees of the Mills had supported Basharat Shafi in taking over the factory in the absence of the respondent. The connection found by the prosecution of the respondent with the murder was through a Clerk of the deceased and a Steno‑grapher working in the Gulberg Hospital, Lahore, through whom the respondent tried to find an introduction with the deceased posing himself to be a Doctor and seeking the advice of the deceased in a tax matter. After the arrest of Ziarat Shafi, he led to the recovery of a Scooter said to have been the property of the deceased and blood‑stained clothes and shoes of the deceased. He produced his own licensed gun which according to the prosecution could be the weapon of offence. The head was never discovered and the headless body was identified by Maqbool Ahmad petitioner.

3. It is evident that the case of the prosecution rests entirely on circumstantial‑‑evidence. Evidence was led to show that the respondent induced the deceased to come to his house in Model Town, which had been rented by him only a month before, but was otherwise lying vacant, on the pretext of being a Doctor and seeking advice of the deceased in a tax matter. It was shown that the deceased was already a Tax Adviser of Gulberg Hospital which the respondent visited for the purpose of seeking introduction to the deceased. It is alleged that the circumstances show that the deceased visited the house in Model Town and an injury was given to his head and after the dead body was disposed of near Chunian after removing the head from the body. The post‑mortem examination of the headless body did not find any injury on the body. The Doctor was of the opinion that the death was caused due to shock, on account of injury to the centres of the brain The head itself has never been located, even though, according to the prosecution, the respondent had co‑operated to the extent of showing the police, the place where the dead body was thrown by him and even leading to the recovery of blood‑stained clothes and the shoes of the deceased. This is important because without the head ordinarily it is difficult to identify a dead body. The dead body was identified by Maqbool Ahmad petitioner, the elder brother of the deceased. But it was identified on 4‑5‑1982 when the dead body had decomposed even on 24‑2‑1982 when the post‑mortem examination was conducted. It can only be presumed that the dead body had decomposed further on 4‑5‑1982 when Maqbool Ahmad claims to have identified it. The doubts expressed regarding identification by the trial Court are, therefore, justified. 4. one important piece of evidence for which the prosecution has not been able to offer a satisfactory explanation is the motive. It has been shown at the trial that respondents had motive against Maqbool Ahmad and Abdul Ghafoor, two brothers of the deceased, but obviously no motive against the deceased, himself. There is no reason, therefore for the respondent to commit the murder of the deceased while he has enmity against Maqbool Ahmad and Abdul Ghafoor who were still available for the revenge if the respondent wanted any.

5. The learned counsel has also argued that the recovery of the Scooter belonging to the deceased from the house of the respondent located in Samanabad is an important piece of evidence against the respondent. The respondent, on the other hand, in his statement under section 342, Cr.P.C. claimed that the recoveries have been planted on him. This cannot be excluded. It is the prosecution case that the respondent made elaborate arrangements of concealing his identity from the deceased and renting his house a month in advance only for the purpose of committing the murder. In this background it is hard to believe that the respondent will make the serious mistake of keeping the Scooter belonging to the deceased in his custody at his own house. Similar is the case of recovery of the blood‑stained shoes and clothes of the deceased. If the respondent was really not co‑operative then, there is no reason why he could not also lead to the recovery of the head of the dead body. The recovery of the Scooter and the blood‑stained clothes and shoes of the deceased at the instance of the respondent shows signs of padding. No reliance, therefore, could justifiably placed on the evidence of recoveries.

6. The question whether the Scooter really belonged to the deceased has not seriously been examined by the investigation. The police did not care to trace the documents, showing that the Scooter belonged to the deceased. A serious assertion was made by the defence that the Scooter belonged to P.G. Company, Faisalabad and not to the deceased. The Scooter bears the registration marks of Faisalabad District while the deceased lived in Lahore. It was necessary, therefore, for the Investigating Agency to have successfully connected the Scooter with the deceased. This, they have failed to do and the advantage of this omission can be claimed only by the respondent and not by the complainant.

7. The learned counsel has laid great stress on the identification prade during which the respondent was identified by Nazir Ahmad, an employee of Gulberg Hospital and Mansoor Jafar, clerk at the office of the deceased. But this could only show that the respondent went to these persons looking for the deceased. This by itself cannot prove the fact that it was the respondent who was responsible for the murder of the deceased.

8. In the F.I.R. recorded at the instance of the present petitioner under section 302, P.P.C., a suspicion was raised against the wife of the deceased whom the deceased had married a couple of weeks earlier without the consent of his close relatives. This F.I.R. could lead the investigation into two directions; one, against the woman suspected o foul play in the F.I.R. and the other, the family of the deceased who were not happy with the marriage of the deceased with the woman. It appears that the police did not sufficiently probe these two areas and F instead went after the respondent merely on the suspicion raised on account of the so‑called attempts of the respondent of seeking an introduction for the deceased. I am afraid, the investigation has no done its job properly in bringing all the facts before the Court.

9. Considering the circumstances of the case the trial Court was justified in acquitting the respondent No.1 for want of evidence. There is no merit in the revision petition. It is dismissed in limine. H.A.K. Acquittal maintained.