2000 PLP 1774 (MLD)

Date of hearing: 20th April, 2000. This judgment will dispose of Criminal Appeal No.565 of 1997 directed against the judgment, dated 11-10-1999 passed by the learned Additional Sessions Judge, Sargodha, whereby he convicted Talib Hussain and Muhammad Ijaz, appellants under seption 302(b), P.P.C. and sentenced them to undergo life imprisonment. He also convicted the appellants under section 201/34, P.P.C. to undergo R.I. for three years with a fine of Rs.10,000 each or in default to further undergo six months' R.I. They were also directed to pay Rs.30,000 each to the legal heirs of the deceased as compensation under section 544-A,,Cr.P.C.

2. The brief facts as narrated in the F.LR. lodged by Ghulam Qadir are that on receipt an information that a male dead body was lying in "Saim Nala" of Chak No.65 N.B whose head was chopped off from neck, he proceeded to the spot and found headless dead body; whose whereabouts were not known and he had been killed by unknown persons and he was buried in 'Saim Nala' to conceal. their guilt. Matter was reported to the police on the same day.

3. After completing necessary formalities Ghulam Hussain, S.-I. of Police Station Jhal Chakian went to the spot on 3-5-1994 and took into possession headless dead body alongwith piece of cloth. The dead body was identified by Mulazim Hussain and Nusrat Bibi P.Ws. The S.-I. prepared the rough sketch site plan of the occurrence vide memo Ezh.PM, he also prepared identification memo. of dead body, Exh.P.N.

4. Prosecution in order to prove its case produced 11 witnesses in all, then learned D.D.A. tendered in evidence reports of Chemical Examiner, Exh.P.T., Exh.P.U. and Exh.P.V, and that of Serologist Exh.P.W., Exh.P.K. and Exh.P.Y. Thereafter statements of the appellants were recorded under section 342, Cr.P.C. therein they pleaded innocence and claimed false implication. Then statements of three C.Ws. were recorded.

5. Learned counsel for the appellants after reading the prosecution evidence and other material available on the record submits that nobody was named in the F.LR., that it was an unwitnessed occurrence, that all the witnesses produced by the prosecution are closely related to the deceased, that the story narrated by the prosecution witnesses is cooked up story, that no motive is proved against the appellants that even the sex of the deceased whose post-mortem was conducted by Dr. Alam Khan, P.W.S, has not been identified and established on record. Learned counsel further submits that it is a case of circumstantial evidence and there is no direct evidence which connects the appellants with the crime. Learned counsel for the appellants adds that dead body was headless and could not be identified. He further submits that in the instant case, learned Additional Sessions Judge has also recorded the supplementary statements of the witnesses which is against the law i.e. also nine months after their first statements.

6. On the other hand learned Slate Counsel and learned counsel for the complainant support the judgment of the learned trial Court.

7. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case, matter was reported to the police by one Ghulam Qadir on 3-5-1994, no day' and time of the occurrence was mentioned in the F.I.R., nobody was named in the F.I.R. After disappearance of Fakhr Abbas deceased either his parents or any of his relative did not go to Police Station to lodge the F.I.R. P.W.3, is Muhammad Nawab, who is husband of aunt of the deceased and is resident of a place situated at a distance of 60/70 miles from the place of occurrence. He was examined twice as P.W. Firstly his statement was recorded on 4-3-1996 and secondly on 1-12-1996. He was witness of recoveries P.2 and P.3 (daggers) allegedly got recovered on the pointation of the appellants. He himself was involved in many criminal cases. No person from the locality was joined in the investigation to witness the recoveries. In his second statement i.e. supplementary statement recorded on 1-12-1996 he gave another story which is totally different from the facts which he had given in his first statement recorded on 4-3-1996. No reliance can be placed on such like evidence. Then there is Court statement of Mulazim Hussain P.W.4, father of the deceased Fakhar Abbas, his first statement was recorded on ' 4-3-1996 and in his other statement which was recorded on 1-12-1996 he has introduced a new story that his deceased son was taken by the appellants but in his earlier statement recorded by the learned trial Court on 4-3-1996 this fact was not mentioned and for 9 months Muhammad Nawab complainant and Mulazim Hussain remained mum and after 9 months their counsel made an application that they be summoned again to make their supplementary statements. Then there is statement of Dr. Malik Alam Khan, P.W. who, conducted the post-mortem examination on the dead body of the deceased, according to him dead body was not identifiable. Doctor P.W.5 further stated that he cannot say with certainty whether the post-mortem which he conducted on the dead body in fact was the dead body of a male or female sex. Even about the age of deceased person there is much difference in the statements of the P.Ws. As far as age of the deceased according to statement of Doctor is concerned, he while conducting post-mortem examination on the dead body of the deceased had opined that age of the deceased was 17 years. When he got a report from the Professor of Anatomy Department about the age of the deceased according to that age was about 13 to 15 years while Mst. Nusrat P.W.7, the real sister of the deceased had stated her age as 22 years. She has further stated that her deceased brother was lesser to her age by two years. Statement of Nusrat P.W.7 that both the appellants took the deceased from his house who did not return but even after passing 4 to 5 days, the matter was not reported to the police, is not confidence inspiring. Then comes statement of P. W.8, Ghulam Abbas, who is also cousin of the mother of the deceased. He stated that he saw the deceased in the company of the appellants. He has stated that his place of residence was at a distance of 2 kms. from the place where he saw the deceased and the appellants. He is also closely related to the deceased. As far as motive introduced by Nusrat P.W.7 is concerned, that is also not believable because Muhammad Ijaz appellant had got one sister who was 10/11 years of age. Story of illicit relations between sister of Muhammad Ijaz appellant and the deceased does not appeal to mind. After going through the evidence it has been established on record i that it has not been proved whether the dead body on which post-mortem examination was conducted was really of Fakhar Abbas deceased or not. This is a case of circumstantial evidence in which links are missing, and to convict, a person for a charge of capital punishment evidence must have come from B an unimpeachable source which is not present in the instant case. In view of above circumstances, capital punishment cannot be maintained or awarded in such-like cases. This appeal is, therefore, accepted and conviction and sentence awarded to the appellants are set aside They are ordered to be released forthwith if they are not required in any other case. H. B. T./T-6/L Appeal accepted.