1997 P Cr (PLP)

Lal Bakhsh, Nizam, Habib, Sharif, Abdul Ghafoor and Mehan were tried in a case F.I.R. Exh.P.A./1 registered under section 302/364/148/149, P.P.C. with Police Station Zahir Pir District Rahim Yar Khan, on the statement Exh.P.A. made by Ghulam Sarwar (P.W.4) recorded by Muhammad Saeed, S.-1. (P.W.10) at Khai Khair Shah for an occurrence which took place on 2-1-1990 at 4-00 p.m. in the fields of Abdul Shakoor within the area of Village Jaga Abasian at a distance of 11 k.m. from the said police station.

2. The learned Additional Sessions Judge, Khanpur, vide the impugned judgment, dated 16-6-1994 recorded acquittal of all the accused/respondents herein while giving them benefit of doubt. ,

3. The instant judgment has been assailed through this revision petition.

4. The facts, in brief, of the prosecution case are that on 2-1-1990, the complainant at about 4-00 p.m. was on his way to meet with one Abdul Shakoor. He was going straight through the fields of the said Abdul Shakoor and when reached near a watercourse No. 14050 of Lakhoo Minor, he saw a dead body of unknown person lying in the cotton crops of Abdul Shakoor. He also saw various injuries on the head and the left hand of the dead body. He raised hue and cry. Abdul Hameed, Abdul Shakoor alongwith many others attracted the place of occurrence but nobody could identify the dead body. Unknown persons had committed that murder. The blood was present at the spot. The complainant was going to the police station after leaving behind the P.Ws. for the report, when he met with Saeed Ahmed, Inspector/S.H.O. on the way who recorded his statement Exh.P.A. and the same was sent to the police station for the registration of formal F.I.R. through a constable.

5. After recording statement Exh.P.A., the Inspector/S.H.O. assumed the investigation and proceeded to the place of occurrence. He prepared the injury statement Exh. P.J. and he also prepared the inquest report Exh. P.K. The dead body was despatched under the escort of Ghulam Qasim, Constable No.5 to the mortuary for its post-mortem examination. He inspected the place of occurrence. The blood-stained earth was collected from the spot and was taken into possession vide memo. Exh. P.F. He prepared the rough site plan Exh. P.L. of the place of occurrence. He collected foot-wears P.11/1-2, the cap P.12 and spectacles P.13 and were secured in possession vide memo. Exh. P.H. On the same day Ghulam Qasim, Constable after having conducted the post-mortem examination of the dead body produced the last-worn clothes of the deceased, shirt P.8, Chaddar P.9 and Ajrak P.10 which were taken into possession through recovery memo, Exh. P.G. On 3-1-1990 the dead body was identified by the relatives of the deceased and their statements under section 161, Cr.P.C. were recorded. The place of abduction of the deceased was also visited by him on 3-1-1990 and site plan Exh. P.M. was prepared. Thereafter, the statements of other P.Ws. were recorded under section 161, Cr.P.C. Maulvi Mutehur Rehman on 30-1-1990 produced the accused Lal Muhammad, Nizam Uddin, Habib and Sharif and all of them were arrested on the same day. On 7-2-1990, Habib accused while in custody made a disclosure and led to the recovery of blood-stained hatchet P.1 and National Identity Card of the deceased P.2 from within the cluster of date palm trees near the canal and the same was taken into possession vide memo. Exh. P.B. Nizam Din on the same day, while in custody led to the recovery of blood-stained hatchet P.3 and Patri (Pazaib), of gold P.4 of the deceased from the cluster of the palm trees and was secured into possession vide memo. Exh. P.C. Sharif accused, while in custody, led to the recovery of hatchet P.5 and wrist-watch P.6 of the deceased from the cluster of palm trees, which were taken into possession vide memo. Exh. P.D. All the recoveries were witnessed by Bashir Ahmed (P.W.5), Allah Wassaya (P.W.), Lal Bakhsh accused on 11-2-1990, while in custody led -to the recovery of blood-stained hatchet P.7 from the bushes, which was taken into possession through memo. Exh.P.E. and after recording statements of the remaining witnesses, the Investigating Officer prepared the incomplete challan against the accused. The investigation was, thereafter, conducted by C.I.A. Bahawalpur and on the finalisation of the investigation Abdul Ghafoor and Mehan were also challaned to face trial.

6. It is very essential to point out that previously a charge against the accused persons was framed under section 302/148/149, P.P.C. on 8-5-1991 and statements of P. Ws. were recorded up to 17-2-1993 when an application for the addition of charge under section 364, P.P.C. was accepted by the learned Additional Sessions Judge, Rahim Yar Khan and the charge was reframed on 13-4-1993 for the offence under section 302,/364/148/149, P.P.C. and the de novo trial of the six accused was conducted.

7. Dr. Muhammad Rafi Shahid (P.W.11), C.M.O., T.H.Q., Hospital Khanpur, on 3-1-1990 conducted the post-mortem examination on the dead body of deceased and found the following injuries on his person:-- (1) An external wound 2 c.m. x 0.5 c.m. x bone cut on right side of central (parietal) area of head. (2) An incised wound 1.5 c.m. into 0.5 c.m. x bone cut on right temporal parietal area of head 6 c.m. about the right ear. (3) An incised wound 1.5 c.m. x 0.5 c.m. x bone cut on the right temporal area of head. (4) An incised wound 2 c.m. x 0.5 c.m. x bone deep on the right side of forehead. . (5) An incised wound 3 c.m. x 0.5 c.m. x bone cut (Maxilla) just below the outer angle of right eye. (6) A continuous ligature mark 2 c.m. wide all around the neck. The neck just below the thyroid cartilage seen after removing the Ajruk tied around the neck. In his opinion the death had caused on account of head injury and brain damage leading to shock and comma due to injuries Nos. l to 5 and asphyxia caused by strangulation vide the injury No.6. All the injuries were sufficient to cause death individually as well as collectively in the ordinary course of nature.

8. The prosecution in support of its case produced as many as thirteen witnesses. Bashir Ahmed, A.S. -I. (P.W.1) deposed that on 2-1-1990 he received complaint Exh. P.H. on the basis of which he correctly recorded formal F.I.R. Exh.P.H./1. He was handed over a sealed parcel containing blood-stained earth, which he further handed over to Muhammad Hanif for onward transmission to the office of Chemical Examiner. On 7-2-1990, he was again handed over three sealed parcels containing weapons of crime and another parcel on 11-2-1990 containing crime weapon, by Inspector/S.H.O. All the parcels remained intact with him in the Malkhana, Muhammad Hanif, H.C. (P.W.2) appeared and deposed that on 21-1-1990 he was given a sealed parcel containing the blood stained 'earth which he delivered intact to the office of Chemical Examiner, Lahore, Ali Akbar, D.S.P., Range Crime Bahawalpur, (P.W.3) had conducted investigation of the case partly. He gave the details of the same. He also arrested Mehan and Abdul Ghafoor accused, and after the investigation directed the S.H.O. concerned to challan both the said accused. Ghulam Sarwar (P.W.4) deposed that he saw a dead body lying in a cotton field belonging to Abdul Shakoor. He reported the matter Exh. P.H. to the police and thumb-marked the same in token of its correctness, Bashir Ahmed, (P.W.5) deposed that all the recoveries contained in Exhs. P.B., P.C,., P.D. and P.E. were witnessed by him and Allah Wassaya P.W. and both of them attested the memos., Abdul Ghafoor (P.W.6) gave ocular account regarding abduction of deceased. He also narrated the motive behind the occurrence, Shamsuddin (P.W.7) also gave ocular account with respect to the abduction of his son. He also gave motive of the murder of his son, Muhammad Shafi, (P.W.8) deposed about the confession of accused persons before him and thereafter he got recorded his statement before the police, Abdul Shakoor (P.W.9) appeared and deposed that he joined the investigation and recoveries contained in Exhs. P.F., P.G. and P.H. were witnessed by him and he signed' the memos. as an attesting witness, Said Ahmad, Inspector, (P.W.10) had conducted investigation of the case partly. He gave the details of the same, Pr. Muhammad Rafi Shahid, C.M.O., T.H.Q., Hospital Khanpur (P.W.2) made the statement as detailed in para. 7 above, Muhammad Nawaz, Patwari (P.W.12) deposed that on 15-4-1990, he prepared the site plans of the place of occurrence on the pointation of P.Ws. and that plans Exhs. P.N. and P.N./1 bore his signatures and Noor Muhammad, S.-I. (P.W.13) stated that on 3-5-1990 he was directed to visit the place of occurrence and investigate the matter. He accordingly, complied with the orders and visited the place of occurrence and place of abduction. The accused did not join the investigation whereupon he returned the police file to Ali Akbar, D.S.P.

9. The accused when examined under section 342, Cr.P.C. denied the incriminating circumstances and raised the plea of false implication and professed their innocence.

10. On the conclusion of the trial, the accused were acquitted of the charge under section 302/148/149/364, P.P.C.

11. Learned counsel has vigorously argued that the deceased was abducted on 1-1-1990 by the accused persons within the view of the P.Ws. and were duly identified by them. The witnesses tried to rescue the deceased but they were threatened not to come near. The matter was verbally reported to the D.S.P. Khanpur who advised the complainant to continue the search of the abductee and thereafter matter was also reported to him in writing. The respectables, according to the custom, were also approached who convened the meeting. Further argued that though the occurrence of the murder was not witnessed by any person, yet the deceased was not seen alive after the abduction. Vehemently argued that no link was found missing from the time of the abduction till the time of the murder. There was a strong motive behind the murder of Shafi Muhammad. The recoveries were effected on the pointation of the accused and have also been proved through evidence. The national identity card was also recovered alongwith crime weapon and it was a strong proof of the involvement of accused in this murder. Learned counsel further stressed that other articles belonging to the deceased have also been recovered from the accused persons on their pointation which connect them with commission of crime and is a very strong piece of corroboration. Further pointed out that learned trial Court did not decide the case with full application of judicious mind and has committed an error in appreciating the evidence. The inculpatory evidence of the prosecution has wrongly been discarded by the learned trial Court. Lastly he requested for notice to the respondents,'

12. I have heard the learned counsel at full length and have also perused the record with their assistance. I have also given my anxious consideration to the facts and law.

13. It is the case of the prosecution that the dead body of an unknown person was, for the first time, seen by the complainant, who reported the matter to the police, which was later on identified by Shams Din (P.W.7) father of the deceased Shaft Muhammad, in the mortuary. The deceased was abducted three days before by Lal Bakhsh Nizam Uddin, Sharif, Abdul Ghafoor, Habib and Mehan when the father of the deceased (P.W.7) was busy in conversation with Ameeruddin, Abdul Ghafoor and Ghulam Qadir, P.Ws.

14. First of all I advert to the occurrence of the abduction of Muhammad Shafi deceased from his place of residence within the view of Ameeruddin, Shamas Uddin, Abdul Ghafoor and Ghulam Qadir. Shams Din, according to him, immediately contacted the respectables of the village, who asked him not to worry. On the following morning, he alongwith Mehan son of Kheta went to the office of D.S.P., Khanpur and informed him about the occurrence who asked him to continue the search of the abductee and he would inform the police of Islam Garh Police Station. Again on the third day of occurrence, the D.S.P. was approached when he asked them to see a dead body of one unknown person lying in the mortuary. It was a dead body of his son Shafi who was abducted by the accused persons. He thereafter proceeded to the Police Station Zahir Pir, alongwith P.Ws. where he got his statement recorded under section 161, Cr.P.C.

15. In order to prove the occurrence of the abduction the prosecution produced Abdul Ghafoor (P.W.6) and Shams Din (P.W.7). Both the witnesses categorically stated that they were present and had witnessed the abduction of Muhammad Shafi. Shams Din (P.W.7) stated before the Police of Zahir Pir that Lai Bakhsh, Habib, Sharif and Nizam Uddin armed with hatchet came on the jeep and forcibly abducted Muhammad Shafi but during the trial he named six persons including Mehan and Abdul Ghafoor as accused. This improvement made in the statement was confronted with his previous statement Exh. D.D. This was a deliberate and dishonest improvement to his previous statement, as he admitted in the cross-examination that the names of Abdul Ghafoor and Mehan were mentioned for the first time in an application made for the transfer of investigation. It is obvious that he had not mentioned anywhere the name of Abdul Ghafoor and Mehan previously. On the other hand P.W.6 in his examination-in-chief stated that there were seven persons at the time of the abduction. He named six persons and one was not known to him. This statement of the P.W. was got confronted with his previous statement Exh. D.C. made under section 161, Cr.P.C. wherein he had named only four persons and this was a deliberate improvement during the trial. Both the P.Ws. narrated before the trial 'Court that they were threatened by Lai accused when they tried to rescue the deceased. It was an improvement to the previous statement. There are many other major discrepancies in the statements of the P.Ws. made during the trial.

16. The disquieting feature of the case is that the occurrence of abduction of the real son of Shamas Uddin had taken place in the daylight and the accused according to them were seen and were previously known to them and were also apprehending the murder of the abductee but they did not even bother to inform the police. Had the information in writing been given to the Police Officer at the level of D.S.P., it would have been conveyed by him to the concerned police station for the registration of the case. The assertion that he did not inform the concerned police station for the registration of the case does not appeal to ordinary prudence of man. The witnesses who are closely related instead of informing the police started approaching the respectables of the area who never joined the investigation nor they were summoned to join the investigation to prove the factum of abduction.

17. The motive behind the abduction and murder of the deceased was that one man of the accused party had disappeared and Shamas Uddin P.W. was held responsible but was later on exonerated in Panchayat of the respectables of the area. This occurrence, according to them, had taken place 21/22 years before and Shamas Uddin was never threatened nor any untoward incident had taken place during such a long period. No independent witness was produced to prove the motive nor the name of the disappeared person was mentioned by Shamsuddin, father of the deceased.

18. Another aspect of the case that a vehicle was used to commit the crime of abduction. The vehicle was neither recovered nor the owner or driver of the vehicle was associated during the investigation. All the ingredients regarding the abduction, which were necessary to be proved, could not be proved by the prosecution through independent, reliable trustworthy and undiluted testimony.

19. Muhammad Shaft (P.W.8) was the only witness produced by the prosecution to prove the factum of extra-judicial confession made by Muhammad Sharif, one of the accused on the same day immediately after committing the murder of Muhammad Shafi deceased. According to Exh. D.E., his statement was recorded by the police on 9-1-1990 and on the same day he stated that confession was made before him a day before previous day i.e. 7-1-1990. In his cross-examination, he admitted that confessioner had named Nizam Din, Lala, Habib and one driver of jeep who had abducted Muhammad Shafi but before the Court he made inculpatory statement regarding Abdul Ghafoor and Mehan as accused persons. It was got confronted with Exh. D.E. It was found a dishonest and deliberate improvement to his previous statement Exh. D.E. He made various improvements in his statement. The witness categorically stated that Sharif accused had confessed before him that he alongwith his co-accused had committed the murder of Muhammad Shafi five days back. If his statement is to be taken to be correct, then the murder was committed on 4-1-1990 whereas corpse was seen by the complainant on 2-1-1990 and the post-mortem was conducted on 3-1-1990. The witness seems to have been introduced to strengthen the case of the prosecution. Such-like evidence could not be relied upon without independent corroboration from any other source.

20. So far as the recoveries are concerned, Abdul Ghafoor P.W.6 had very plainly admitted in his cross-examination that the identity card of the deceased was already in the possession of the police before they were asked to identify the dead body lying in the mortuary. The death of Muhammad Shaft was confirmed from the identity card whereas Muhammad Bashir P.W.5 stated that identity card was got recovered by Habib accused on 7-2-1990. This contradiction. is sufficient to belie the recoveries and truthfulness of the witnesses. In these circumstances, recoveries also do not appear to be free from doubt. The statement of the witnesses do not inspire confidence particularly when they were confronted with their statements recorded under section 161, Cr.P.C. and were contradicted on a number of material points. The P.Ws. tried to make improvements on the material points of the prosecution story at numerous places. The law requires unimpeachable source of evidence to carry conviction on capital charge or it must be supported by some strong and independent source, which is not forthcoming in this case.

21. In addition to the above, the interference in the revisional jurisdiction in a criminal case against the acquittal order can only be made if the reasons given by the trial Court are found to be perverse or wholly illegal and unsustainable or artificial. In the present case, the reasons given for the acquittal of respondents 1 to 6 are justified and the impugned judgment being unimpeachable, does not call for any interference.

22. In view of what has been discussed above, this revision petition fails and is dismissed. N.H.Q./S-443/L Revision dismissed