1999 PLP 3421 (MLD)

IFTIKHAR HUSSAIN CHAUDHRY, J.

Muhammad Latif son of Wali Muhammad was convicted for offences under section 302/377, P. P. C. for commission of murder of and for criminal assault on Muhammad fahir lqbal deceased, and vide judgment dated 27-6-1992 passed by Additional Sessions Judge, Toba Tek Singh, was sentenced to death and a fine of Rs 10,

000. In case of default, the convict was to undergo 5 years rigorous imprisonment. The convict was also directed to pay compensation amounting to Rs. 10,000 to legal heirs of the deceased. Muhammad Latif was also sentenced to imprisonment for life and a fine of Rs. 5,000 for offence under section 377, P. P. C.

2. Case F. I. R. No. 172 of 1988 (Exh. PW/1) was registered at Police Station Chutiana on 12-11-1988 at 12.05 p.m. on the statement of Mubarik Ali P. W. 10 (Exh. PD). According to the complainant he was resident of Chak No. 332/G. B. and was an Agriculturist. A day earlier i.e. on 11-11-1988 at about 3.00 p.m. his son Tahir lqbal aged about 12/13 years went to the field to fetch spinach. He did not return home. A search was launched for him and at 11.00 p.m. the dead body was found lying in maize crop standing it Killa No. 11 of square No. 78 which belonged to the complainant. String of the Shalwar of the deceased was tied around his neck and his throat was sit The witness arrived at the spot on raising of alarm by complainant. Later, the matte was reported to the police. None was suspected as having committed the offence.

3. Subsequently, Muhammad Latif was traced to be the accused in the case and later was sent up to face trial before Special Court for Speedy Trial. Faisalabad and was convicted by judgment dated 11-6-1989. The Conviction of Muhammad Latif was set aside by this Court and thereafter, Muhammad Latif was tried in the Court of Additional Sessions Judge, Toba Tek Singh.

4. Sultan Ali Patwari, prepared site-plait Exhs. PA and PA/

1. Haji Abdul Majeed P. W .2 had seen the deceased and the accused together in the land Mubarik Ali, father of the deceased. Inayat Ullah P. W.3 had also -yen t; deceased and the accused together on the day when he had gone to fetch to spinach. Nazar Hussain P.W. 4, Mushtaq Ahmad, M. H. C., P. W.6 are form witnesses.

5. Mehr Ali P: W.7 is also. a witness of ' Waj Takkar'. He was shepherd and had seen both the deceased and the accused together while the deceased was cutting spinach from his field. Anwarul Haq P. W. 8 has stated that the accuse came to him on the night between 12/13-11-1988 and confessed before him that he had committed sodomy on Muhammad Tahir Iqbal and then had murderer him. Mubarik Ali P. W. 10 is complainant in the case. Faqir Muhammad has witnessed the recovery of blood-stained earth from the shot where the dead body was found lying. Saeed Ahmad, Inspector, P. W.12, the Investigating Officer, testified about various steps taken by him during the investigation of the case.

6. The accused in his statement under section 342, Cr. P. C, controverted the allegations levelled against him. He denied having made any extra-judicial confession or to have committed the offence.

7. Learned trial Court believed the prosecution case on the basis of evidence of last seen, extra judicial confession, the recoveries and proceeded to convict Muhammad Latif for offence under section 302/377, P. P. C. and sentenced him in the above terms. Muhammad Latif submitted appeal through Jail, while the complainant filed Cr. Revision No. 44 of 1993, which was directed to be heard alongwith the criminal appeal submitted by Muhammad Latif.

8. The defence counsel appointed at State expenses to prosecute Jail Appeal submitted by Muhammad Latif, did not enter appearance. The record was seen with the assistance of learned counsel for the State and the learned counsel for the complainant.

9. Learned counsel for the complainant submitted that the case against the convict stood proved on the basis of testimony of Haji Abdul Majeed, Inayat Ullah, Mehr Ali and Anwarul Haq and he was duly connected with the commission of offence. It was contended that the deceased was seen in the company of the convict in the field where he was to cut spinach and thereafter, he made extra-judicial confession before Anwarul Haq, and this confession could form the basis for recording conviction of the appellant and the same was rightly done by the learned trial Court. Reference in this regard was made to Habib Ullah v. The State (1992 SCMR 398).

10. The case against the appellant rests entirely on circumstantial evidence. Muhammad Tahir Iqbal left his house on 11-11-1988 at 3.00 p.m. to fetch spinach from the field. He was carrying a sickle for the purpose as well. He did not return home and thereafter, a search was launched for him and his dead body was found lying in a field which belonged to Mubarik Ali, complainant, father of the deceased. The matter was reported to the police next day at about 12 0' Clock, but in the F. I. R. none was made as suspect by the complainant. Subsequently, at trial Haji Abdul Majid appeared as P. W. 2: He testified that he was returning from Chak No. 330/G.B. to his village and he had seen Muhammad Tahir Iqbal present in the field belonging to his father and at that time Muhammad Latif was also following the deceased at a distance of one acre and that he also came there and both started talking to one another. The witnesses came home and the accused and the deceased also went away. The witness in his examination-in-chief clearly stated that he had gone to the spot and had informed the people about having seen the deceased in the company of the accused and that at that time Mubarik Ali was going to the police station to get the case registered. Had this witness informed the complainant about the factum of the deceased being in the company of Muhammad Latif, Mubarik Ali in all likelihood would have mentioned this fact in the report made to police. This, of course, was not done. According to F. I. R., Muhammad Nasim Akhtar, Naseer Ali, Ghulam Nabi and Abdul Ghaffar alongwith others had come to the spot. Name of Haji Abdul Majid does not find mention in that part of the first information report.

11. Inayat Ullah P. W.3 is second witness of last seen. According to him he had seen the deceased in the company of Muhammad Latif and that on the same evening when Muhammad Tahir lqbal was found missing he had gone to the complainant' and informed him about the fact of seeing the accused with the deceased. The complainant has made no mention of Inayat Ullah having informed him about the fact of lastly seeing the deceased in the company of Muhammad Latif. Mehar Ali, a shepherd, appeared P. W.7, but he also kept mum for quite some time and stated that he disclosed this fact to the police after registration of the case and prior to that he had not informed anybody; His testimony appears to be wholly tainted and not worthy of any credence. Anwarul Haq, P. W.8, is witness of extra-judicial confession, made by Muhammad Latif before him. According to this witness, Muhammad Latif came to him at about 9.00 a.m. on 12-11-1988 and confessed his guilt before him. The witness stated that he refused to help the accused and then the accused left his house and went away and that he got his statement recorded before the police next day. Muhammad Latif is resident of Chak No. 332/G. B. and his age is about 20 years. Anwarul Haq is aged 40 years and is resident of Chak No, 331/G.B. This witness did not know any other member of the family of the accused. His testimony does not show that the accused had any special relationship with him as they were resident of different villages. The material trough on record by the prosecution does not show that till 12-11-1988, Muhammad Latif was suspected of having committed that offences. Neither the complainant was after Muhammad Latif nor the police was after him and he was not suspected in the case at that time and there was no occasion or reason for Muhammad Latif for having gone to a stranger and to have confessed his guilt. The testimony of this witness shows that this witness was set up. He had absolutely no relation with the accused. His conduct at the time of making of confession by the accused whereby he had neither apprehended the accused nor had informed the complainant or the police, makes him absolutely untrustworthy witnesses. Obviously this witness was set up to frame in the accused with the Case.

12. After having gone through the record with care, it is found that the evidence on record was fabricated subsequently: The witnesses were procured and Muhammad Latif was made accused in the ease apparently without any justification. The evidence on record does not connect Muhammad Latif with the commission of offence in any manner. There was no justification for recording his conviction for offence under sections 302/377, P. P. C

13. Criminal Appeal No. 69-J of 1992 consequently is allowed. The conviction and sentence awarded to the appellant is set aside. He shall he released from custody, if not wanted in any criminal case.

14. Criminal Revision No. 44 of 1993 has teen found to be without any substance and is dismissed. 15 Murder Reference No. 243 of 1992 is answered in the negative. H.B.T./M-748/L/ ??????????????????????????????????????????????????????????????????????????????? Appeal allowed.