1999 P Cr (PLP)

SH. ABDUR RAZZAQ, J.

This judgment will dispose of Murder Reference No.161 of 1993, Criminal Appeal No.301 and Criminal Appeal No.113/J of 1993, against judgment, dated 6-5-1993 passed by Mr. Saif-ur Rehman Khan, Additional Sessions Judge, Faisalabad, Camp at Samundri, whereby he convicted Abdul Sattar alias Abdul son of Bashir Ahmad under section 302-B, P.P.C. and sentenced him to death as Tazir and further directed him to pay a sum of Rs.10,000 as compensation under section 544-A, Cr.P.C. He further convicted Mst. Maftooran widow of Pir Ali under section 302/109, P.P.C. and sentenced her to imprisonment for life. She was, however, ordered to pay a sum of Rs3,000 as compensation under section 544-A, Cr.P.C. payable to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was, however, extended to the appellants/accused. The accused Shaukat and Niaz were given benefit of doubt and were acquitted. Similarly the appellants/ accused Abdul Sattar and Mst. Maftooran were acquitted of the charge under section 201, P.P.C.

2. The instant case has been registered vide F.I.R. No.165, dated 1-8-1991 on the basis of statement of Muhammad Sabir son of Muhammad Bux, brother of Pir Ali deceased, at Police Station Mamunkanjan District Faisalabad.

3. Succintly stated the facts of prosecution story as unfolded in F.I.R. Exh.P.C./1 are that 12/13 years prior to this occurrence, Pir Ali deceased was married to Mst. Maftooran accused. About 5/6 months ago she developed illicit relations with Abdul son of Bashir accused. On coming to know about their liason Pir Ali deceased abstained Abdul from visiting his house and passing his Bazar. About 8/9 days prior to this incident Abdul accused was stopped by the deceased when he passed through the Bazar. It resulted into exchange of hot words between them. The matter was patched up by the intervention of complainant and his brother Allah Ditta. This annoyed Abdul who left the said place issuing threats of dire consequences for said insult. It is alleged that 5/6 days prior to this incident Pir Ali deceased was missing from his house. The complainant-Muhammad Sabir and Allah Ditta P.W. approached Mst. Maftooran to enquire about him. After a lot of hesitation she informed them that Pir Ali had left for Kamalia about 5 days back and that Abdul, Shaukat and Niaz had come to her and inquired about Pir Ali and she disclosed to them about the departure of her husband. She further informed the complainant and Allah Ditta P.W. that all the three expressed their intention to kill Pir Ali and she also subscribed to their intention and further told that it would be better if he be done to death and thereafter all the three left that place. On that very day (when complainant Muhammad Sabir and Allah Ditta P.W. had contacted Mst. Maftooran) she was told by Abdul accused that he, Shaukat and Niaz had murdered Pir Ali and had thrown his dead body in the canal about four days ago. The complainant alongwith Kamir, Ahmad Ali and Rahim met Abdul, who after great hesitation admitted that he, Shaukat and Niaz had murdered Pir Ali and had thrown his body in the canal. The complainant was about to leave in search of dead body, when on the receipt of information about the recovery of dead body, he, Kamir and Ahmad Ali etc. made for Police Station and met Manzoor Hussain Shah, A.S.-I., who recorded his complaint Exh.P.C.

4. Manzoor Hussain, A.S.-I. P.W.9, sent the complaint Exh.P.C. to the police station for formal registration of F.I.R. Exh.P.C./1 and made for the place where the dead body was lying. He prepared injury statement Exh.P.K., inquest report Exh.P.L., despatched the dead body through Muhammad Nawaz, Constable for autopsy. He prepared rough site plan of that place Exh.P.M., secured the identity card of deceased P.6 vide memo. Exh.P.N. He also collected last-worn clothes of deceased vide memo. Exh.P.D. Subsequent investigation was carried out by Saleem Muhammad, S.-I. (P.W.11) who secured Cycle P.3, Chhuri P.4 and Kassi P.5 vide memo. Exh.P.F. He also secured piece of skin, hair of head of deceased as well as blood-stained earth vide memo. Exh.P.G. Mst. Maftooran accused pointed out the place where Pir Ali was murdered and memo. Exh.P.H. was prepared of that place. He also prepared the rough site plan Exh.P.O. of the place of occurrence. On completion of investigation case was sent up for trial.

5. A charge under section 302/201/109/34, P.P.C. was framed against Abdul, Shaukat, Niaz and Mst. Maftooran to which all of them professed innocence and claimed trial.

6. In order to bring home guilt to the accused prosecution examined P.W.1 Dr. Akram Ali Dogar Who on 1-8-1991 at 4-00 p.m., conducted post mortem examination on the dead body of Pir Ali and found the following injuries on his person:-- (1) Incised wound 3 c.m. x 1 c.m. x trachea cut on front of neck at its middle part; (2) Incised wound 5 c.m. x 2 c.m. x chest cavity on right side of chest 4 c.m. inner to right nipple; (3) Incised wound 5 c.m. x 2 c.m. x abdominal cavity in right hypochondrium. (4) Incised wound 6 c.m. x 3 c.m. x abdominal cavity at the upper part in the midline. In his opinion death was due to haemorrhage and shock due to injuries referred above and which were ante-mortem. He gave the probable time between injuries and death as immediate whereas between death and post-mortem examination 3 to 4 days. He produced carbon copy of post-mortem report Exh.P.B. and sketch of injuries Exh.P.B./1. Both Muhammad Sabir P.W.2 and Allah Ditta P.W.3 supported the prosecution version appearing in complaint Exh.P.C. P.W.3 Allah Ditta also attested memo of recovery of Exh.P.D. pertaining to the recovery of clothes of deceased. P.W.4 Kamir deposed about extra judicial confession of Abdul and Shaukat accused regarding committing murder of Pir Ali and throwing his dead body in the canal. P.W.5 Murad is witness of recovery of Cycle P.3 blood-stained Chhuri P.4 and Kassi P.5, but he did not support prosecution version and was declared hostile. P.W.6 Naseer Ahmad is a marginal witness of memo. Exh.P.F. as well as that of Exh.P.G. referred above. He is also a marginal witness of memo. Exh.P.H. relating to the place pointed out by Mst. Maftooran to be the place where deceased was murdered and a bundle of his dead body was prepared. Ata Muhammad P.W.7 and Muhammad Yaqoob, Head Constable P.W.8 are formal witnesses of delivery of parcels in the office of Chemical Examiner as well as that of recording formal F.I.R. Exh.P.C./1 respectively. P.W.9 Manzoor Hussain Shah, A.S.-I. is the Investigating Officer whose evidence has already been discussed above. P.W.10 Babar Nadeem, Draftsman prepared site plan' Exh.P.O. and Exh.P.O./1 and handed over the same to the Investigating Officer. P.W.11 Saleem Mehmood, S.-I. is another Investigating Officer whose evidence has also been discussed above. P.W.12 Khizar Hayat Khan is the witness of recovery of Identity Card secured vide memo. Exh.P.N. However, he did not support the prosecution version and was declared hostile. Thereafter, the learned D.D.A. produced the report of Chemical Examiner Exh.P.Q. and of Serologist Exh.P.R. and closed the prosecution evidence vide his statement, dated 17-4-1993.

7. When examined under section 342, Cr.P.C. all the accused denied the prosecution version and stated that they have been implicated in this case falsely. None of them chose to produce defence evidence and to examine himself under section 340(2), Cr.P.C.

8. After going through evidence produced by prosecution, the trial Court convicted and sentenced the appellant-accused vide judgment under appeal.

9. We have heard learned counsel for the appellants and given our passionate thoughts to the respective arguments addressed by the learned counsel for,the parties.

10. The case of prosecution against the appellants is based on circumstantial evidence, which is of following nature:-- (1) Evidence of extra-judicial confession and (2) The evidence of recoveries.

11. So far as evidence of extra-judicial confession is concerned, that consists of statements of Muhammad Sabir complainant (P.W.2), Allah Ditta (P.W.3) and Kamir (P.W.4). Both P.Ws.2 and 3 are brothers inter se and are ,also brothers of the deceased Pir Ali, whereas P.W.4 Kamir is their brother-in law, as his wife Mst. Maryam is their sister. Thus, the so-called extra judicial evidence consists of statements of interested witnesses; which for want of independent corroboration cannot be made a base for passing an order of conviction. Again the stand of prosecution is that Abdul and Mst. Maftooran had been carrying on with each other and this afforded a motive for committing the murder of deceased. Even this motive part of prosecution version is not proved from the statements of P.Ws. 2 and

3. It is admitted by P.W.2 that he learnt about the liaison between the accused-appellants about 5/6 months prior to occurrence, whereas P.W.3 states that he came to know about their affair only on the day when Abdul exchanged hot words with the deceased. It is, thus, clear that motive in the instant case is not proved and it appears that the same has been coined to involve the appellants in this case. Similarly evidence of recovery of articles P.3 to P.5 in no way connect the appellants with the commission of this offence.

12. There is no doubt that conviction can be made on the basis of circumstantial evidence. In absence of direct evidence, if it excludes all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible with that of innocence of accused. It should be incapable of any explanation of any other reasonable hypothesis than that guilt of accused. For proving a case through circumstantial evidence following four essentials are required:-- (1) Circumstances from which conclusion is to be drawn should be fully established; (2) AU facts should be consistent with hypothesis; (3) Circumstances should be of conclusive nature; and (4) Circumstances should lead to moral certainty and actually exclude every hypothesis but one proposed to be proved. Rules as to quality of circumstantial evidence which can be sufficient for conviction is that facts proved must be incompatible with innocence of accused and incapable of explanation upon any reasonable hypothesis than of guilty.

13. Now the question emerges, whether in the instant case the prosecution has proved all the links of chain as required in the case of circumstantial evidence. We are afraid prosecution has miserably failed to prove the said links. The only piece of evidence against the appellants consists of their extra judicial confession, which as held earlier does not ring true. There remains the evidence of recovery but that also does not appeal to reason. It has come on record that initially the investigation was conducted by Manzoor Hussain, A.S.-I. P.W.9 and it remained with him till 20-8-1991 and by that date nothing was recovered at the instance of accused Abdul. As soon as the investigation was entrusted to Saleem Muhammad, S.-I. (P.W.11) the accused Abdul is said to have led to the recovery of articles secured vide memo. Exhs.P.E., F and G. All these memos. have been attested by P.W.6 Naseer Ahmad, who is also real brother of complainant (P.W.2) and Allah Ditta (P.W.3).

14. It is also pertinent to point out that it has come on record through the statement of P.W.2 Muhammad Sabir that deceased Pir Ali used to remain out of house for 4/5 days even in the past. Thus, the disappearance of deceased on the fateful day was not unusual. It appears that some unknown person committed the murder of deceased and threw his dead body in the canal. As soon as the complainant came to know about this fact, he impleaded the accused Abdul as well as Mst. Maftooran, as they were suspected of carrying on with each other.

15. The upshot of above discussion is that prosecution has failed to establish its case against the appellants-accused as such appeals are accepted and murder reference is answered in negative and death sentence is not confirmed. Appellants are directed to be released forthwith if not required in any case. H.B.T./A-350/L Appeals accepted.