1994 P Cr (PLP)

MIR HAZAR KHAN KHOSO, CJ.

This appeal is directed against the judgment, dated 22-7-1992 passed by the learned Additional Sessions Judge, Gujranwala, whereby applicant Muhammad Boota son of Muhammad Ramzan, caste Mashki was convicted for offence under section 302, P.P.C. and section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) and sentenced as under:-- (i) Under section 302, P.P.C. Imprisonment for life, fine of Rs.20,000 urn default to suffer R.I. for one year more. Half of fine, if realised, was ordered to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. (ii) Under section 14 of the Ordinance: Seven years' R.I., fine of Rs.5,000 in default six months' R.I. more. Both the sentences of imprisonment were ordered to run concurrently. The appellant was given benefit of section 382-B, Cr.P.C.

2. It is case of the prosecution that on 22-2-1990, Muhammad Boota son of Jan Muhammad, caste Machhi, father of complainant Faqir Muhammad, P.W.3 was murdered in his house in the area of Mohallah Mehboob-e-Haq, Noorani Road, Gujranwala City. ne report of the same was lodged by Faqir Muhammad son of the deceased vide F.I.R. No.50 at Police Station Girjakh, Gujranwala City. The statement of complainant Faqir Muhammad is as under:-- According to prosecution, subsequently complainant Faqir Muhammad gave a further statement alleging that appellant Muhammad Boota Mashki had committed murder of his father. On the basis of the F.I.R. registered at the police station, Raja Javed Ahmad, S.I./S.H.O. of Police Station Girjakh started the investigation of the case. He visited the place of incident, collected blood stained earth therefrom and prepared inquest report on the dead body of deceased Muhammad Boota Machhi and sent it for post-mortem to the hospital. Dr. Ashid Hussain, P.W.6 conducted post-mortem on the dead body of the deceased. His opinion is as under:-- "A dead body of old male of seventy years lying on the table flat, mouth and eyes semi closed, wearing Lacha, Qamees and Saluka. Rigor mortis were present. No ligature marks seen on the neck. (1) Incised wound 21 c.m. x 5 c.m. deep into vertebral column on front of neck. (2) Incised wound 4 c.m. x 1-1/2 c.m. x superficial on front of right chest 3 c.m. medial to right nipple. (3) Incised wound 4 c.m. x 1 c.m. superficial on internal side of right hypochondrium upper part. (4) Incised wound 26 c.m. x 10 c.m. x deep going, gut in coming out on across the abdomen middle part 1 c.m. above umbilicus. (5) Incised wound 3 c.m. x 1 c.m. x muscle deep on approximal phalanx of right index finger. (1) Four survical vertebra cut. (2) Trachea injured through and through. (3) Muscles and vessles of the neck including carotid and jugular vessel cut through and through. (4) Interior abdominal injured with all layers of abdominal cavity full of blood about one and 1-1/2 litres, peritoneum interior injured and perforated. (5) Oesophagus. injured through and through on front of neck. (6) Stomach healthy half full. (7) Two perforations seen on illium middle part. One perforation seen on jugular middle part. (8) Ascending column perforated from middle part. Mesentery extensively injured. (9) Left lobe of liver injured. Rest of all the organs were healthy and normal." Raja Javed Ahmad, S.I./S.H.O. recorded statements of P.W.1 Ch. Khidmat Hussain, P.W.4 Haji Muhammad Siddique, P.W.12 Muhammad Yasin and other witnesses. The appellant was arrested on 10-3-1990. On 11-3-1990 he was sent for examination to hospital where P.W.5 Dr. Shaukat Khurshid examined him. He found the following injuries on his person:-- "He was right handed person with three healed scars on the palm of the right hand. Two of them were between right thumb and right index forger. One was at the base of right ring finger. Each of them 1-1/2 c.m. long. The probable duration of injury was about eighteen days." On 14-3-1990, according to the prosecution, the appellant led to recovery of golden ornaments comprising a pair of ear-rings, a Nath, Tikka, ten currency notes of the denomination of Rs.1,000 each, a photo copy of identity card of Faqir Muhammad and a black purse. He also got recovered his blood-stained clothes comprising Shalwar, shirt and sweater in presence of Muhammad Iqbal, P.W.13. On 21-3-1990 he led to recovery of blood-stained Chhuri in presence of Muhammad Arshad, P.W.15. The blood-stained earth and blood stained clothes of deceased, blood-stained clothes of appellant and blood stained Chhuri were sent to the Chemical Examiner whose report is in positive. However, after usual investigation, the appellant was sent for trial before the Court.

3. The case came up for trial before the Court of learned Additional Sessions Judge, Gujranwala where the appellant did not plead guilty to the charge under section 302, P.P.C. and section 14 of the Ordinance and claimed trial. The prosecution, therefore examined- P.W.1 Ch. Khidmat Hussain, before whom the appellant has given extra-judicial confession in respect of the offence on 10-3-1990. P.W.2 Muhammad Siddique In his presence also the appellant had given extra-judicial confession on 10-3-1990. He produced him before the police on the same day. P.W.3 Faqir Muhammad, the complainant. On his statement the F.I.R. was registered. P.W.4 Haji Muhammad Siddique. On the day of incident he had seen appellant Muhammad Boota running away with blood-stained clothes and blood-stained Chhuri. P.W.5 Dr. Shaukat Khurshid. On 11-3-1990 he examined the injuries of appellant Muhammad Boota. P.W.6 Dr. Ashiq Hussain. He conducted post-mortem on the dead body of Muhammad Boota. P.W.7 Nazir Hussain, A.S.I., He recorded the formal F.I.R. on the basis of the statement of complainant Faqir Muhammad and also kept blood-stained earth and other property in safe custody. P.W.8 Ghulam Meeran, H.C. He was given blood-stained cloths of appellant on 14-3-1990 by Raja Javed, S.H.O. P.W.9 Wakeel Khan, L.H.C. He deposited the blood-stained earth, blood-stained clothes of deceased and blood-stained clothes of appellant in the office of the Chemical Examinur. P.W.10 Ch. Arif Hussain Ayyaz, Draftsman who prepared the notes of the Wardat. P.W.11 Hamad Ali. He identified the dead body of the deceased and was attesting witness regarding the recovery of blood-stained clothes of deceased. P.W.12 Muhammad Yasin. His evidence is the same as that of P.W.1 regarding running away of appellant from the house of the deceased on the day of incident. P.W.13 Muhammad Iqbal. In his presence blood-stained earth was recovered from the Wardat. In his p:esence the appellant led to recovery of the stolen property and his blood-stained clothes. P.W.14 Muhammad lqbal, Constable. He took the dead body of Muhammad Boota Machhi for post-mortem to the hospital. P.W.15 Muhammad Arshad. In his presence the appellant led to recovery of blood-stained Chhuri. P.W.16 Mehdi Khan, Constable. He took the dead body for post mortem. P.W.17 Nazir Hussain, A.S.I. He was examined on behalf of Raja Javed, A.S.I./S.H.O. as he had died during the pendency of the case.

4. In his statement recorded under section 342, Cr.P.C. the appellant denied tile allegation and claimed innocence. He examined Noor Mvhammad, D.W.1,'Muhammad Riaz, D.W.2, Muhammad Asghar D.W.3 in his defence. However, he did not examine himself on oath. The learned Additional Sessions Judge did not believe his defence version and convicted him for the offence and sentenced him for the same as mentioned hereinabove. Hence this appeal.

5. Ch. Saeed Sabir and Mr. Ghulam Mustafa Jafri, Advocates appeared for the appellant and Mr. Sibtain Akhtar Bokhari, Advocate, for the State.

6. The learned counsel for the appellant contended that:-- (i) evidence of P.Ws. Muhammad Siddique and Muhammad Yasin is unreliable, hence should not be relied upon for the purpose of the conviction of the appellant for the offence; (ii) the fact- regarding theft and recovery of articles was not proved at the instance of the appellant. The learned counsel for the State candidly conceded that the prosecution had not proved its case beyond reasonable doubt, hence the conviction and sentence of the appellant be set aside and he be acquitted of the charge. There is indeed weight in the contentions of the learned counsel for both the parties.

7. However, with the assistance of the learned counsel for the appellant and the State, we have gone through the evidence produced by the prosecution, the statement of the appellant and the impugned judgment. Before the trial Court, the prosecution has produced evidence to prove:-- (i) motive; (ii) extra-judicial confession; (iii) evidence of Wajtakkar witnesses, and (iv) recoveries made at the instance of the appellant. The learned Additional Sessions Judge outrightly observed that the prosecution had failed to prove the motive and evidence of extra judicial confession was dubious. The evidence which impressed the learned Judge for recording conviction of the appellant for the offence was of two Wajtakkar witnesses Haji Muhammad Siddique; P.W.4 and Muhammad Yasin, P.W.12 and that of recovery witnesses Muhammad Iqbal, Muhammad Arshad and Ghulam Meeran, H.C. It may be observed that P.W.4 Haji Muhammad Siddique and P.W.12 Muhammad Yasin had seen the appellant running away from the house of the deceased on the day of incident having a blood-stained Chhuri in his hand and blood-stained clothes. They also followed the appellant who ran away. Thereafter they came back to house and saw the dead body of Bashir Ahmad lying in the house. The natural conduct of the two witnesses should have been that they should have either reported the matter to the police or they should have remained at the spot to inform the complainant regarding the incident there and then on that day. In cross-examination, both witnesses have explained that as the complainant was not in senses upto 25-3-1990, hence they could not inform him of the incident. Categorically they have stated that they informed the complainant regarding the incident on 25-3-1990. However, they have admitted that they met the complainant on the day of incident' and even thereafter. In his cross-examination, P.W.4 Haji Muhammad Siddique has admitted that he met Faqir Muhammad, complainant for the first time after the present occurrence on 22-2-1990 at about 7-00 p.m. in his house and narrated the facts to him that he had identified the murderer of Boot deceased but the complainant was not in senses. P.W.12 Muhammad Yasin has admitted in cross-examination that he met Faqir Muhammad on 22-2-1990 after the burial of his father. As the complainant was not in senses he could not talk with him. Faqir Muhammad, P.W.3 is silent regarding the meeting of the two witnesses on the day of incident. But on the contrary has said that they met him on 25-2-1990 and informed him about the incident. Thus, there is damaging contradiction between the evidence of the above-said three witnesses regarding exchange of information. Either the complainant has given false evidence in that respect or the two witnesses Haji Muhammad Siddique and Muhammad Yasin. However, who may be the liar? A serious doubt has arisen in our minds regarding contradictory statements of the abovesaid three witnesses on material point. The benefit thereof can only be extended in favour of the defence. The conduct of P.W.4 Haji Muhammad Siddique and Muhammad Yasin on face of it is unnatural and dubious. Had they seen the appellant running away they would have reported the matter to the police. They have failed to do so. They could be termed to be accomplices with the crime. Thus, no reliance can be placed on their evidence. Evidence of these two witnesses being doubtful is, therefore, discarded.

8. Besides, in F.I.R. the complainant had not disclosed name of any culprit. However, his further statement was recorded by the police. It is alleged that in his subsequent statement he disclosed the name of the appellant and theft of the articles. It is thus an introduction and improvement later on. His second statement has not been produced before the Court. We are not aware as to what were the contents thereof. We are, therefore, compelled to draw adverse presumption against the prosecution and benefit thereof would also go in favour of the defence. The stolen articles were also not produced before the Court to have been identified by the complainant. He is indeed silent thereon. In view of the two lacunas left by the prosecution in the case, no importance can be attached to the recovery of the stolen articles. The evidence produced in that respect is thus discarded. The only evidence remains in field is that of recovery of Chhuri at the instance of the appellant. The said recovery was made in presence of P.W.15 Muhammad Arshad the attesting witness of the recovery. He was employee of the police department. He was dismissed from service alongwith Raja Javed Ahmad, S.H.O. Police Station Girjakh. The witness had been termed as an independent one. And infact he is not. His evidence, therefore, cannot be given any weight. Even otherwise mere recovery of weapon used in the offence by an accused person is of corroborative nature and not by itself sufficient for basing conviction of an accused. The remaining 8 evidence produced by the Prosecution regarding injuries on the hand of the appellant is also neither satisfactory nor trustworthy. Besides, it does not connect the appellant with the offence.

9. In view of the circumstances discussed above, we are inclined to extend benefit of doubt in favour of the appellant and consequently the appeal is accepted, the conviction and sentences of the appellant recorded by the learned Additional Sessions Jadge, Gujranwala on 22-7-1992 are set aside. The I appellant is acquitted of the charge. He be set at liberty forthwith if not required in any other case. The stolen goldtn ornaments and other articles were not claimed by the appellant before the trial Court. He in clear words has said that the same were planted by the complainant party in connivance with the police. The golden ornaments and other things, therefore, belong to the complainant. The blood-stained Chhuri P.1.4 used in the crime is, however, confiscated. N.H.Q./898/FSC Appeal accepted.