1994 PLP 387 (MLD)

'This case is false and I have been involved due to suspicion. The P.Ws. are closely related to the deceased and the complainant. Moreover, they are inimical towards me and they have deposed falsely, at the instance of the complainant: He further stated in answer to the question "Have you anything else to say?"

"I am innocent. The police has involved me in this case to show Karwai and the real culprits have been let off in connivance with them." Appellant Noor Muhammad, when asked "Why this case against you and why the P.Ws. have deposed against you?" made the following statement:

"Due to enmity and suspicion. Moreover, the witnesses are related to the deceased .and they have deposed falsely at the instance of the complainant." He further stated that he was innocent. The appellants neither, made statement on oath nor produced evidence in defence.

5. After examining the evidence on record, the learned trial Court relied on the testimony of the P.Ws. and convicted and sentenced the appellants.

6. The learned counsel for the appellants vehemently contended that there is no eye-witness of the present occurrence, and only circumstantial evidence was produced by the prosecution i.e. last seen, extra judicial confession, recovery of dead body and recovery of motor-cycle, the articles and other documents of the motor-cycle and the medical evidence, which is not proved on record.

7. We have carefully considered the submissions made by the learned counsel for the parties in the light of evidence available on record. It is clear from the resume of the prosecution evidence that there is no ocular evidence in this case and only circumstantial evidence was produced by the prosecution to substantiate its case. We have to see that all the chains of the circumstantial evidence are intact or some chain is missing.

8. The motive behind the occurrence as argued was that the deceased was running the business of oil and on the alleged day of occurrence an oil tanker was expected to reach and the appellants were under the impression that the deceased must be having money with him for payment of oil. None of the P.Ws. specifically stated about the motive and only Rs.6 were allegedly found with the deceased by the accused as well as his missing motor-cycle.

9. The evidence of last seen has been stated by the complainant Habib ur-Rehman (P.W.3) in F.I.R. Exh.PC i.e. P.W.4 Muhammad Bashir, who had stated that on the fateful night he was present alongwith Faqir Muhammad P.W. (given up) on the Bridge of Murad Canal as plug of their motor-cycle stopped working and they were changing the plug. Meanwhile Muhammad Irshad deceased and P.W.9 Fiaz Ahmad reached on a motor-cycle and had talked with P.W.4 and on their asking the deceased told Faqir Muhammad P.W. (given up) that he was taking Fiaz Ahmad (P.W.9) to Chak No.175/Murad. P.W.4 Muhammad Bashir further stated that when he reached near the land of P.W.12 Aftab Ahmad Lamberdar he witnessed the appellants Muhammad Ashraf and Nooru Muhammad Irshad deceased also reached there on his motor-cycle. On inquiry of P.W.4 the deceased stated that he had left Fiaz Ahmad (P.W.9} in Chak No.175/Murad. Thereafter, snuhammad Irshad deceased told him that he had got an urgent piece of work with Muhammad Ashraf appellant and since his Oil Tanker was expected at his Agency, therefore, he should go there for looking after his expected Oil Tanker. Thereafter, Muhammad Ashraf and Nooru appellants sat behind Muhammad Irshad deceased on his motor-cycle and went towards the land of Aftab Ahmad Lumberdar (P.W.12). P.W.4 had stated that on 30-11-1990 he had narrated the above facts to P.W3 Habib-ur-Rehman complainant, and also made his statement before the police next day. P.W.4 during cross- examination stated that he was sister's brother of the wife of P.W.3 complainant. It is surprising that P.W.3 lodged F.I.R. Exh.PC on 28-11-1990 and had mentioned about the meeting of P.W.4 with the deceased at canal bridge, whereas P.W.4 had stated that he had narrated before P.W.3 in the afternoon of 30-11-1990 about his meeting with the deceased and the appellants. He further stated that he did not remember that whether he had accompanied P.W3 Habib-ur-Rehman complainant at the time of registration of the case and he also did not remember whether the F.I.R. was lodged after the said meeting of 30-11-1990. He had got no concern/acquaintance with Nooru appellant before that day. In the circumstances, we are of the view that the statement of P.W.4 is not confidence inspiring and the prosecution has not been able to prove that the deceased was last seen alive in the company of the I appellants.

10. P.W.8 Khadim Hussain narrated the alleged extra-judicial confession made by the appellants before him and Muhammad Ikram P.W. (given up). P.W.8 Khadim Hussain alongwith Muhammad Ikram P.W. (given up) was present at a petrol pump when the appellants lighted from a bus, came to them and stated in an apologetic manner that they had murdered the deceased by strangulating him with a rope. Muhammad Ashraf appellant told him that he had left Noor Muhammad alias Nooru appellant in the land of Aftab Ahmad Lamberdar (P.W.12) on 24-11-1990 and he himself had gone to the shop of the deceased at about 4-00 p.m. and asked the deceased to come to his land on motor-cycle to convey a lady somewhere. Muhammad Ashraf appellant arrived at the land of Aftab Ahmad (P.W.12) where Nooru appellant was present and started waiting for Irshad deceased who reached on a motor cycle. Nooru appellant had provided a nylon rope. Muhammad Ashraf appellant put it round the neck of Muhammad Irshad deceased and both the appellants strangulated him. Then Muhammad Ashraf appellant brought a Kassi from his Dera, dug a pit in the cotton crop near Khaal and the dead body was buried. P.W.8 further stated that Noor Muhammad alias Nooru appellant also repeated the same story and stated that they were upset and had alighted from the bus. They further told him that they had learnt that the investigation had been transferred to the CIA. and they had not travelled by motor-cycle because of fear of being arrested and in the next morning they would come alongwith the motor-cycle for being produced before the police. Thereafter, both the appellants went away but did not return the next day. P.W.8 Khadim Hussain has stated during cross-examination that he was neither a Lamberdar of the village nor a councillor of any Union Council. The appellants had not come to him after the day they made their confessional statements. He and Muhammad Akram P.W. (given up) had not apprehended the appellants when they made their confession before them, who took 1/2 - 3/4 hour in making confession and after making the same the appellants went away to dome back again. He further stated that criminals did not come to him for his assistance for producing them before the police. He also stated that he had never talked about confession of the appellants with P.W.3 Habib-ur-Rehman, complainant. He had gone to the police station early in the morning next day and the police told him that the investigation of the case was not with them and the same had been entrusted to the CIA. Staff. P.W.8 Khadim Hussain had specifically stated that the appellants had made joint extra judicial confession before him as well as P.W. Muhammad Akram (given up). He is not a person in authority. He had no connection whatsoever with the police and it is surprising that after the appellants had made extra judicial confession, they were not apprehended and produced by him before the police. In the circumstances, the extra-judicial confession made by the appellants has not been proved on record.

11. P.W.9 Fiaz Ahmad, a police constable is a witness who had seen the deceased last alive in the company of the appellants and had stated that on 24-11-1990 he went to the shop of the deceased and meanwhile Muhammad Ashraf appellant also reached, who took the deceased inside the Agency, had a talk with him and went away. P.W.9 Fiaz Ahmad wanted to go to Chak No.175/Murad and requested the deceased to take him to that village on his motor-cycle and at about 7-15 p.m. the deceased took him on his motor-cycle. They reached at Pul Murad where P.W.4 Muhammad Bashir and P.W. Faqir Muhammad (given up) met, as the P.Ws had stopped there to repair the plug of their motor-cycle which had gone out of order. P.W.9 further stated that the deceased left him at his destination from where he proceeded on foot. P.W.9 Faiz Ahmad also stated that on 25-11-1990 he met Habib-ur-Rehman complainant (P.W.3) at Chowk of 177/Moar and told him about the meeting of the deceased with the appellants. P.W.9 Faiz Ahmad during cross-examination stated that it was incorrect to suggest that since he was a police constable, therefore, the police had tried to save him and for that reason lie had deposed falsely against the appellants. He was not on leave on 24 and 25-11-1990 and had not made any entry in the Roznamcha about his departure from where he was posted. He had stated that it was incorrect to suggest that his name had been mentioned in the F.I.R. Exh.PC as a suspect. It is pertinent to mention that P.W.9 is a police constable, was suspect by the complainant and also remained associated with the investigation of the case as a suspect. His testimony does not inspire confidence.

12. P.W.8 Khadim Hussain stated that the appellants had made before him and P.W. Muhammad Akram (given up) joint extra judicial confession and also stated that they had buried the dead body in the land of P.W.12 Aftab Ahmad. Appellant Noor Muhammad alias Nooru was arrested by P.W.13 Munawar Hussain, S.I on the night between 3/4-12-1990 at about 2-00 am. Thereafter P.W.13 Munawar Hussain obtained services of P.W.6 Liaqat AIL Photographer and Noor Muhammad alias Nooru appellant was alleged to have pointed out the place of burial of dead body and led to its recovery after digging the earth with his hand in presence of P.Ws. Abdul Aziz, Abdul Sattar (given up) and P.W.12 Aftab Ahmad. P.W.13 prepared pointation memo of the place of recovery of dead body Exh.PJ. P.W.13 during cross-examination has stated that he had recorded the statements of P.W.8 Khadim Hussain and P.W. Muhammad Akram (given up) who had stated about the extra-judicial confession made by the appellants before them wherein they had also informed about the burial of the dead body and Aftab Ahmad (P.W.12) was present at that time. It is surprising that it had come to the knowledge of P.W. 13 on 1-12-1990 that the dead had been buried in the land of P.W.12, but P.W.13 made no effort to know the location and discovery of dead body and the same was allegedly recovered on 4-12-1990 on the pointation of appellant Noor Muhammad alias Nooru. Surprisingly P.W.13 Munawar Hussain had hired the services of P.W.6 Liaqat Ali, a photographer who was allegedly present at the time of recovery of dead body and took 5 snaps of the dead body, prepared 15 prints and in one of the photographs P.10 deceased was shown to be lying on the cot with Nooru appellant present near it. No negatives of the photographs were exhibited in the Court. P.W.13 only to strengthen the recovery of the dead body at the instance of Noor Muhammad alias Nooru appellant had got prepared photographs, but the same could also be prepared even without the recovery of the dead body on the pointation of appellant Nooru who could later be forced to be photographed alongwith the dead body. The evidence of the recovery of dead body at the instance of Noor Muhammad alias Nooru appellant is doubtful.

13. P.W.13 Munawar Hussain, S.I. stated that on 30-12-1990 he was present near Chak No. 129/Murad, where Muhammad Ashraf appellant reached from the side of Christian, but on seeing the police party he turned back, and was chased- and apprehended. Motor-cycle P.11 was identified by P.W3 Habib-ur-Rehman complainant as to be that of his deceased brother, which was secured by P.W.13 vide memo Exh.PE. Thereafter, Muhammad Ashraf appellant led the police party to the place of burial of the dead body and identification memo Exh.PL was prepared. On 8-1-1991 i.e. on the 10th day of the arrest of Muhammad Ashraf appellant he is alleged to have led the police party to the recovery of articles P.12 to P.20 from his house, which were secured by P.W.13 vide memo Exh.PF attested by P.W.3 Habib-ur-Rehman. The alleged occurrence took place on 24-11-1990 and appellant Muhammad Ashraf was arrested on 30-12-1990 while riding on motor-cycle P.11. It does not appeal to the reason that the appellant who had murdered the deceased would be riding the motor-cycle of the deceased in the same area knowing the fact that the police was after him. An accused shall never like that he should be arrested with the case property. It is just like an invitation to the police to come and arrest the accused which could not be imagined. Muhammad Ashraf appellant is alleged to have led to the recovery of articles P.12 to P.20 on 8-1-1991 i.e. on the 10th day of his arrest and after about 1-1/2 months of the alleged occurrence. The appellant is alleged to have got recovered the Kassi P.12 (of common patterns with which it is alleged that pit was dug was for the burial of the dead body of the deceased, the National Identity Card of the deceased, registration of motor-cycle and Insurance (not in the name of the deceased), open transfer letter from Waris Ali, two cash memos (not in the name of the deceased) from the residential Kotha of his house. It is not possible that after the commission of the offence the appellant would keep in his house the articles of the deceased only to produce the same before the police. The said articles were allegedly recovered after about 1-1/2 months of the occurrence and the appellant had every opportunity to destroy the said evidence. It was vehemently argued that National Identity Card of the deceased was also secured by the police from the house of the deceased. It was stated by the P.Ws. that the deceased was roaming on his motor-cycle in the area on the fateful night and the possibility of dropping of his National Identity Card from his pocket cannot be ruled out. The appellant might have picked up the National Identity Card of the deceased. The recovery memo Exh.PF of the above articles was attested by P.W.3 complainant, who is real brother of the deceased and P.W. Muhammad Akram (given up). No independent person from the locality was associated in the recovery proceedings. In the circumstances the recoveries at the instance of the appellant Muhammad Ashraf have not been proved on record.

14. The medical evidence furnished on record by the statement of P.W.1 Dr. Muhammad Afzal who conducted autopsy on the dead body of the deceased has no value, as the motive evidence of last seen, extra-judicial confession and recoveries have already been discarded by us.

15. From the facts and evidence on record we are of the view that the prosecution has failed to prove its case beyond doubt against the appellants and giving them benefit of doubt, we acquit them of the charge. They shall be released forthwith if not required in any other case. The death sentence is not confirmed. N.H.Q./M-1260/L Appeal allowed.