2008 PLP 841 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Petitioner seeks leave to appeal against the judgment, dated 22nd October, 2002 whereby Lahore High Court, Lahore, on accepting the appeal of the respondents against the judgment passed by the Additional Sessions Judge, Faisalabad, dated 25th October, 2001 has acquitted them from the charge of murder of Muhammad Boota son of Khan Muhammad.

2. Precisely stating facts giving rise t0 instant proceedings are that initially petitioner Mst. Irshad Bibi being real sister of the deceased Muhammad Boota lodged complaint under sections 302/364/34, P.P.C. against the respondents on the allegation that latters had proceeded accompanying the deceased on the night falling between 11/12 of August, 1995 to purchase a Truck from Faisalabad. It may be noted that the deceased was Truck driver by profession and often used Truck bearing Registration No.RIE-1661 on different route. It was further averred that deceased left his house along with these respondents having an amount of Rs.3,00,000 (Rupees three lacs) in his pocket on their assurance that they will purchase Truck for him. Later on petitioner was appraised/approached by the Police Officer about the death of the deceased by showing her photographs of the deceased. It was also informed her that the dead body of her brother was found within the territory of Police Station, Nishatabad, Faisalabad, apparently having been murdered and thrown by any killer. It may be noted that at the time of recovery of the dead body vide F.I.R. No.366 of 1995, dated 12th August, 1995, case had been registered on the complaint of one Muhammad Aslam son of Muhammad Ali. It is alleged that accused persons on coming to know that illegal act of murder done by them has been unheard, therefore, respondents Iftikhar Ahmed and Ghias one of the petitioners confessed their guilt and admitted that they along with Imtiaz and Nadeem had killed him and stolen away his money. On the basis of complaint lodged by complainant preliminary inquiry was conducted and ultimately after the arrest of the respondent they were put to trial. Learned Additional Sessions Judge, Faisalabad vide judgment, dated 25th October, 2001 found them guilty for the commission of the offence and as such they were convicted/sentenced. Concluding para. therefrom is reproduced hereinbelow:

"Now we come to the quantum of punishment, to be given to the three accused aforesaid. The three accused having abducted Muhammad Boota to murder him, each of the three accused is punished with imprisonment for life under section 364, P.P.C. along with a fine of Rs.10,000 each or six months further no direct evidence, mitigating circumstances were existing, hence the death penalty was not warranted. Each of the three accused aforesaid is punished with imprisonment for life under section 302(b), P.P.C. as Ta'zir, having regards to the facts and circumstances of the case that proof of Qatl-i-Amd liable to Qisas was not available. Each convict shall also pay Rs.1,00,000 compensation to the legal heirs of the deceased, which amount shall be recoverable, as arrears of land revenue and in case of default, the defaulter shall suffer further simple imprisonment for six months. Three convicts aforesaid shall be entitled to the benefit of section 382-B, Cr.P.C. and the period spent by each convict in detention shall be deducted from the sentence announced. All the sentences shall run concurrently." It may be noted that against four accused perpetual warrants were issued. The respondents preferred appeal before the High Court which has been accepted vide impugned judgment. As such instant petition has been filed for leave to appeal.

3. Learned counsel for the petitioner contended that prosecution has produced overwhelming incriminating evidence against the respondents consisting of inculpatory extra-judicial confession, medical evidence, recovery of incriminating articles i.e. `Chhuri' blood-stained clothes, National Identity Card and Truck bearing Registration No.RIE 1661 from the possession of respondent Imtiaz Ahmed but despite of fact they have been acquitted of the charge without any legal justification.

4. We have heard learned counsel and have also examined the material available on record to justify as to whether the judgment of the learned High Court is sustainable in law or otherwise.

5. Learned trial Court had disbelieved the circumstantial evidence in the form of last seen deceased Muhammad Boota in the company of accused for the reason that statement made in this behalf by P.Ws. Irshad Bibi and Muhammad Munawar that on 11th August, 1995 deceased Muhammad Boota left the house along with Iftikhar and Ghias at about 10-00 a.m., whereas she has contradicted the statement of C.W. Mudasar Hussain. She has herself examined the prosecution evidence on this point independently to ascertain the truth. In our opinion the story put forward by both the witnesses i.e. Mst. Irshad Bibi and Muhammad Munawar seems to be incorrect because if it is presumed that he (deceased) was in the accompany of Imtiaz Ahmed as per statement of C.W. Mudasar Hussain up to 10-00 p.m. then question arises thereafter when he left his company and went along with respondents Iftikhar Ahmed and Ghais and what the time approximately was? Therefore, in view of such contradiction it would not be safe to rely upon this evidence. As far as the confessional statement made by Iftikhar Ahmed and Ghias before P.Ws. Mst. Irshad Bibi and Muhammad Munawar is concerned, it could have been strong evidence if both the witnesses have stated in this behalf to police during the investigation. The material available on record suggests that at that time evidence was disposed with regard to making extra-judicial confession.

6. It is well-settled that conviction order based on an extra-judicial confession as well if prosecution succeeds in establishing that such statement has been made truly and voluntarily and in this case from circumstantial evidence then prosecution is bound to produce individual corroborated evidence. Reference in this behalf can be made to the case of Bahadur Khan v. The State PLD 1995 SC

336. Since in the instant case the respondents have categorically denied the allegation and extra-judicial confession, before both the witnesses P.W. Irshad Bibi and Muhammad Munawar, in the absence of corroboration, is not acceptable. Similarly the statement of P.W. Mst. Muhammad Bibi seems to be incorrect as after 15 days of the occurrence Imtiaz Ahmad appellant came to her house and handed over the Shalwar and Qameez of Muhammad Boota deceased. This act of the accused in this behalf is not a natural conduct, particularly for the reason that there is no enmity between the parties and how they approach their enemies after committing offence otherwise their involvement in the commission of offence would not prove.

7. As far as the recovery of the Truck from the possession of Imtiaz Ahmed is concerned it has also not been established because neither the Truck nor any independent witness to support the prosecution case was produced. Reference in this behalf can be made to the. statement of C.W.4 Muhammad Akbar.

8. Thus in view of the above facts and circumstances of the case we are persuaded to hold that learned High Court after having taking into consideration material available on record in accordance with law rightly came to the conclusion that the prosecution case is full of doubt and as a result whereof acquitted the accused from the charge of the commission of offence in view of the principle laid down by this Court in the case of Muhammad Akram and others v. The State 1995 SCMR 1359. In view of above discussion we see no substance in this petition, as such same is dismissed and leave to appeal is declined. M.H./I-100/SC??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.