2007 PLP 223 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts leading to the present appeal are that on 9-2-1993 the complainant Shandino along with deceased Abdul Majeed, prosecution witnesses Ali Sher and Pandhi were sitting in their house situated in Microwave New Pind, Sukkur in the evening time. The appellant Ali Nawaz met with them and told them that appellant Sachal who was father-in-law of deceased Abdul Majeed had called the deceased so that deceased's wife might be restored to him. Thereafter, the deceased and appellant Ali Nawaz left the house together. The deceased did not return to the house during nighttime; therefore, on the next day the complainant and prosecution witnesses started searching for him but could not get his clue. During the search, they came to know that the appellants had committed the murder of the deceased; therefore, on 6-3-1993 the complainant went to the police station and lodged the F.I.R. at 1 p.m. After recording the F.I.R., the police arrested the appellants Abdul Sattar, Abdul Karim and Muhammad Sachal. They led the police to Gulzar Bhutta and pointed out a place from where the dead-body of deceased Abdul Majeed was secured in presence of police, Magistrate and Medical Officer. Thereafter, all the three appellants were produced before a Magistrate where their judicial confessions were recorded. Subsequently, the appellant Ali Nawaz was also arrested. Police after usual investigation, challaned the appellants in the Court of law. The learned 1st Additional Sessions Judge, Sukkur tried, convicted the appellants for offences punishable under sections 302, 364 and 34, P.P.C. and sentenced them to various terms of imprisonment including imprisonment for life and fine under the impugned judgment dated 28-8-1999. I have heard the Advocate for the appellant. Assistant Advocate-General for the State and perused the record of this case very carefully. The latter has not supported the impugned judgment. I have given due consideration to the arguments, gone through the evidence with the help of learned counsel for the appellants and found that the case of prosecution rests upon three pieces of evidence. 1, deceased last seen alive in the company of appellant Ali Nawaz; 2, A discovery of dead-body on the pointation of appellants Abdul Sattar, Abdul Karim and Sachal; 3, the confessions of above named three appellants. In order to prove the first point, the prosecution relied upon the evidence of P.W.1 complainant Shandino and P.W.2 All Sher. They both stated that on 9-2-1993 the appellant came and took away the deceased with him. In this case, the dead-body was secured on 6-3-1993. The P.W.3 Medical Officer Noor Nabi conducted post-mortem examination and opined that the deceased might have died about 7 or 10 days prior to the post-mortem examination. As such deceased might have died in between 22-2-1993 to 26-2-1993. The deceased left with appellant on 9-2-1993 hence there is gap of about more than 12 days in between the deceased last seen alive with the appellant Ali Nawaz and his death. Therefore, the prosecution was required to show that during the said period the deceased was with the appellant Ali Nawaz as the deceased had not died shortly after the deceased seen in the company of appellant Ali Nawaz. It is possible that during the period of 12 days the deceased might have left the appellant. As such a chain of circumstances is broken hence; the prosecution has failed to prove the said piece of evidence. As regards the second point, the prosecution relied upon the evidence of prosecution witnesses 1, 2, 3, Medical Officer, Mashir Khadim Hussain, P.W.6 Investigating Officer and P.W.7 Magistrate. Prosecution witnesses 1 and 2 deposed that all the three accused had pointed out the place from where the dead-body of deceased was recovered. The complainant further admitted that the disclosure of the burial place of the deceased was brought out from the appellants after maltreating and beating them by the police. The complainant further disclosed that the said place was near Gulzar Bhatta towards northern side. P.W.3 Medical Officer disclosed that he was taken to a courtyard near `Choona Bhatta', Golimar, Sukkur where a grave was dug and the dead-body was secured. The said dead-body was identified by Shandino and Ali Sher. He did not state that the accused were also present at the said time or that the said place was dug on the pointation of the appellants. P.W.4 Mashir Khadim Hussain stated that on 6-3-1993 accused Abdul Sattar only led the police party to brick kiln of Gulzar Brohi and pointed out a place from where the dead-body of Abdul Majeed was secured. He further deposed that after some time the police also brought the appellants Abdul Karim and Sachal who confirmed the said place. P.W.6 SIP Khadim Hussain disclosed that on 6-3-1993 the three appellants took them to brick kiln and took out the dead-body in presence of Magistrate, doctor and Mashirs P.W.7 Magistrate Muhammad Suleman deposed that appellant Sachal, Abdul Karim and Abdul Sattar took them to a heap of garbage from where the dead-body was secured. From the above evidence it is clear that evidence is not unanimous on the pointation of all the accused, and the place of recovery of dead-body. Further their evidence has been belied by the Medical Officer as he did not state that the place c from where the dead-body was secured was pointed out by the appellants or anyone of them. On the contrary, he excluded the presence of the appellants at the said place. Thus, the prosecution has also not proved the said piece of evidence against the appellants beyond any reasonable doubt. As regards the confessions of the three appellants, suffice it to say that the complainant categorically stated that the police maltreated and beaten the appellants, then they confessed their guilt and volunteered to point out the place where the dead-body of Abdul Majeed was buried. This statement is sufficient to discard the confessions for the simple reason that the confessions were not voluntarily. Furthermore, the perusal of the confessions reveals that no source or manner has been shown for committing the murder of the deceased. Even the Medical Officer could not find any apparent reason for the death of the deceased as he did not find any external or internal injuries suffered by the dead-body. The visras were sent to the Chemical Analyzer for report. The report was also negative; therefore, the Medical Officer deposed that cause of death could not be detected. Apart from above, all pieces of evidence can be used against the appellants if the said pieces would have been put them in their statements recorded under section 342, Cr.P.C. A perusal of such statements shows that the trial Court did not put these pieces of evidence before the appellants to obtain their explanation. The said statements simply show that a main question in the shape of reproduction of charge was put to the appellants, which was denied by them. As such the learned Judge committed gross negligence in not putting incriminating evidence to the appellants, hence violated the provisions of section 342, Cr.P.C. It is well settled that if any incriminating piece of evidence is not put to the accused in his statement recorded under section 342, Cr.P.C. then it cannot be used against the accused to convict him. Finding the above defects in the prosecution evidence the learned Asstt. A.-G. has not supported the impugned judgment. After considering the material available on the record, I am of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt; therefore, they are entitled to the benefit of doubt which was accordingly given to them while passing the short order dated 4-9-2006 by which I had allowed the appeal. These are the reasons of the said short order. H.B.T./M-151/K????????????????????????????????????????????????????????????????????????????????? Appeal allowed.