1994 P Cr (PLP)

NAZIR AHMAD BHATTI, J.

Deceased Muhammad Aqeel son of Muhammad Ismail complainant went out of his -house on motor-cycle No.MNM 5260 at about 3-00 p.m. on 11-9-1990 to have a look at the fields. He did not come back till late in the night. At about Isha time Muhammad Sharif Driver of the tractor of the complainant came to the house who was asked about the deceased and he stated that the deceased had started on the motor cycle to come to the house before him. However, he had not reached the house whereupon the complainant accompanied by Rana Ijaz Ahmad, Chairman Union Council, Muhammad Ashraf Ali and Fakhruddin, went out to search for the deceased, They found his dead body in the canal situate in Chak N0.347/W.B. with a head injury. His motor-cycle was also not present there. Muhammad Ismail father of the deceased went to Police Station Dunyapur at about 2-15 hours in the night and recorded F.I.R. No.311 on 12-9-1990.

2. P.W.12 Muhammad Yousaf; Inspector/S.H.O. Police Station Sakhi Sarwar recorded F.I.R. and then he went to the spot. He recovered one empty cartridge, Exh.P.l, from the spot and took it into possession vide recovery memo. Exh.P.D. The Investigating Officer was present at Adda Zakhara on 23-9-1990 when three persons reached there on 2 motor-cycles. He stopped them and found the motor-cycle bearing No.MNM 5260 which was being driven by accused appellant Safdar Ali. On another motor-cycle bearing registration No.MNM 8318 there were two other persons named accused appellant Shahbaz and Ijaz Ahmad. The latter motor-cycle was being driven by appellant Shahbaz while Ijaz Ahmad was sitting on his behind. The Investigating Officer took into possession both the motor-cycles and arrested the three appellants.

3. Neither any assailant was mentioned in the F.1.R. nor was there any ocular testimony. However, during the investigation P.W.5 Fateh Muhammad and P.W.8 Muhammad Tufail both deposed that on the evening of the fateful day they were silting on the tube-well of Ijaz Ahmad and they had seen the three accused going on a motor-cycle and immediately thereafter they had heard the report of fire-shots. P.W.11 Mujahid Ahmad, who is a cousin of the deceased, deposed that he had also seen the three accused on a motor-cycle after the report of fire-shots.

4. P.W.13 Dr. Riaz Ahmad had examined the dead body of deceased Muhammad Aqeel on 12-9-1990 and he found a fire-arm wound about 9 c.m. x 6 c.m. on the left and back side of the head, brain matter was coming out and there were many small pellets in the brain matter. The doctor gave the opinion that the time between the injuries and death was immediate.

5. After the arrest of the three accused the lnvcstigating Officer recovered one revolver with four bullets in the chamber from appellant Safdar Ali on 23-9-1990. On 27-9-19`70 the Investigating Officer recovered one pistol (carbine) .12 bore with one bullet inside the chamber from appellant Muhammad Shahbaz vide recovery memo. Exh.P.H. This pistil was recovered from a ditch in the canal at the pointing out of the said appellant. On 27-9-1990 the Investigating Officer recovered registration book of the motor-cycle of the deceased from the house of appellant Safdar Ali at his instance. On the same day the Investigating Officer also recovered identity card of the deceased and a silver ring inscribed with his name from the house of appellant Muhammad Shahbaz. On 30-9-1990 the, Investigating Officer also recovered one string and one pistol from the house of appellant Ijaz. At the time of inspection of the spot on 12-9-1970 the Investigating Officer had picked up some moulds of footprints. After the arrest of the three appellants the Investigating Officer also took moulds of their footprints on 29-9-1990.

6. After investigation all the three accused-appellants were sent up for trial before the Additional Sessions Judge, Lodhran who charged them under section 302/34, P.P.C. read with section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. All the three appellants pleaded not guilty to the charge and claimed trial.

7. After the conclusion of the trial the learned Additional Sessions Judge convicted all the three appellants under section 302/34, P.P.C. and sentenced each of them to death and fine of Rs.20,000 or in default to further undergo rigorous imprisonment for two years. The learned Additional Sessions Judge acquitted all the accused under section 17(4) of the Hudood Ordinance. But convicted appellant Shahbaz and Safdar under section 411, P.P.C. and sentenced each of them to undergo rigorous imprisonment for 3 years. The learned Additional Sessions Judge acquitted appellant Ijaz under section 411, P.P.C. Convicted appellants had challenged their conviction and sentence by the appeal in hand. A Murder Reference No.3/L of 1993 was also forwarded by the learned Additional Sessions Judge for confirmation of the sentence. The present judgment being written in appeal will also dispose of the murder reference.

8. We have very minutely gone through record of the case and have heard learned counsel for the parties at length.

9. As already stated earlier there was mentioned neither any assailant nor any eye-witness of the occurrence in the F.I.R. Only circumstantial evidence was produced in proof of the offence against the appellants. The circumstantial evidence consisted of some witnesses having seen the three appellants just before and immediately after the occurrence. While the evidence pertaining to recoveries consisted of the recovery of the motor-cycle of the deceased from appellant Safdar Ali, recovery of 12 bore pistol from appellant Shahbaz and one empty of .12 bore from the spot, identity card and ring of the deceased from the possession of appellant Shahbaz, registration book of the motor-cycle of the deceased from the possession of appellant Safdar Ali and string and one revolver from the possession of appellant Ijaz.

10. In so far as the last seen evidence is concerned, it may be stated that P.W.5 Fateh Muhammad and P.W.8 Muhammad Tufail were allegedly sitting at the tube-well of one Ijaz and they both saw the three accused going together. To the question as to why they were sitting at that place, P.W.5 Fateh Muhammad stated that they had gone to bring pesticides. However, Ijaz the owner of the tube-well was not present. P.W.8 Muhammad Tufail stated that he and Fatch Muhammad had gone to the tube-well of Muhammad Ijaz. But he did not disclose the purpose of his visit. P.W.11 Mujahid Hussain had stated that he heard the fire-shots and then he saw the three accused coming back. The minute perusal of the testimony of aforesaid three witnesses would show I that actually they were chance witnesses. They had not seen any weapon in the IA possession of any of the appellants. They had also not seen the motor-cycle of the deceased in the possession of any of the appellants. Not only that P.W.8 and P.W.11 were relatives of the complainant and deceased. It is also a fact that none of them saw any accused firing at the deceased. Even otherwise in so far as the timing of the occurrence is concerned, both P.W.5 Fateh Muhammad and P.W.8 Muhammad Tufail are, at variance. According to the former the occurrence took place at about Isha time whereas according to the latter the occurrence had taken place at about Maghreb time. There was brought no evidence on the record to show that any of the appellants had any animosity or grudge against the deceased. As such there was no basis for presumption by the aforesaid three witnesses to conclude that the appellants had murdered I deceased Muhammad Aqeel. It is also noteworthy that none of the aforesaid 3 witnesses had earlier seen the deceased going to the place of occurrence nor any of them was aware of his presence there. It is also noteworthy that none of these witnesses went to the place from where the report of fire-shot was heard nor any one of them saw the dead body of deceased immediately thereafter.

11. In so far as the recoveries are concerned, in this connection the recovery of empty of .12 bore from the spot, recovery of a .12 bore pistol from the possession of appellant Shahbaz, registration book of the motor-cycle of the deceased from the possession of appellant Safdar Ali and ring and identity card of the deceased from the possession of Shahbaz are of importance. The empty shell of .12 bore was recovered from the spot by the Investigating Officer on 12-9-1990, whereas pistol of .12 bore was recovered from the possession of appellant Shahbaz on 27-9-1990. However, it is very significant that both the empty shell and the .12 bore pistol were sent to the Arms Expert on 1-10-1990 and the same were received in his office on 2-10-1990, as would be evident from the report of the Forensic Science Expert dated 3-4-1991. The crime empty and the said .12 bore pistol remained in the custody of the Investigating Officer for many days after their recovery. The crime empty was sent to the Arms Expert after the recovery of .12 bore pistol. This circumstance has made the matter of recovery very doubtful and possibility of substitution of crime empty cannot be excluded. It appears that evidence was being fabricated in order to connect that appellants with the commission of the offence. Crime empty, recovered on 12-9-1990, was sent alongwith .12 bore pistol, which was recovered on 27-9-1990, to the Forensic Science Laboratory on 1-10-1990. This will clearly indicate that the crime empty recovered from the spot was retained till the recovery of the .12 bore pistol from the alleged possession of appellant Shahbaz. This appears to be a clear case of fabrication of evidence. The allegation that registration book of the motor-cycle of the deceased and his ring and his identity card were recovered from appellant Safdar and Ijaz respectively also appears to be very doubtful. No offender will afford to keep such incriminating evidence in his possession, but on the contrary his first impulse would be to destroy the same so that he should not be involved on the basis of the said incriminating evidence. We have very anxiously considered this aspect of the matter and we cannot compel ourselves to believe that such an incriminating evidence was still available with the appellants. They would be utter fools to retain such incriminating evidence in their possession. It shall also be seen that the F.I.R. does not disclose the loss of the ring and identity card of the deceased and the fact that the registration book was also kept in the motor-cycle.

12. When the Investigating Officer arrested the three appellants, only one of them Shahbaz was allegedly riding the motor-cycle of the deceased. There did not appear any nexus between all the three appellants because the other two were riding a separate motor-cycle which was not a stolen property. The allegation that the stolen motor-cycle was recovered from all the three appellants as alleged by the Investigating Officer was also proved incorrect. The deceased received one injury on his head which would also show that the offence could have been caused by one person. The Investigating Officer had taken moulds of footprints from the spot and he also took moulds of footprints of the appellants but no effort was made to show whether the earlier footprints matched with the footprints of the appellants.

13. Taking into consideration all the aforesaid circumstances we have arrived at the conclusion that the State had failed to prove the offence against all the appellants. Consequently the appeal is accepted. The conviction and sentence of all the appellants recorded on 18-7-1993 by the learned Sessions Judge, Lodhran are set aside. All the appellants are acquitted of the offence for which they were convicted and sentenced. They shall be released forthwith if` not wanted in any other case. The Murder Reference No.3/L of 1993 is not confirmed. N.H.Q./846/FSC Appeal accepted.