2000 P Cr (PLP)

This is a jail appeal filed by Abdul Shakoor appellant. I appoint Mr. S.D. Qureshi, Advocate to defend the appellant on State expense.

2. Appellant was convicted and sentenced by learned Additional Sessions Judge, Okara on 2-10-1997 under section 364/34, .P.P.C. to undergo 10 years' R.I. He was further directed to pay fine Rs.20,000, in default of payment of fine six months' R.I. The appellant was further convicted under section 302/34, P.P.C, and was awarded life imprisonment. He was also directed to pay Rs.25,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased Muhammad Sultan, in default six months' R.I. It was further ordered that compensation, if paid, be distributed amongst the legal heirs of the deceased Muhammad Sultan. Appellant was also granted the benefit of section 382-B, Cr.P.C. According to the judgment of learned trial Court, appellant was also convicted in the above terms in a connected Case No.49 of 1995 vide a judgment of even date. It was .ordered that the sentences in both the cases should run concurrently.

3. Brief facts of the case are that one Zulfiqar Ali son of Sher Muhammad submitted a written complaint Exh.P.D. stating therein that he was Lumberdar of Chak No.39/G.D. and distributory runs towards the eastern side of their village. On 17-2-1995 at about 2-00 p.m. when he reached the house of Haji Niaz Ahmad, he saw the dead body of a male, present in the distributory. He further, reported that the dead body was in an unidentifiable position and his intestines had come out from the right side of his abdomen. On this report F.I.R. Exh.P.D./2 was recorded.

4. Muhammad Anwar, Sub-Inspector, P.W.14 recorded the F.I.R. Exh.P.D./2 and visited the spot and he prepared rough site plan Exh.P.I of the place from where the dead body was recovered. On 16-3-1995 he recorded the statements of Muhammad Hanif, Muhammad Ramzan, Muhammad Siddique, Amanat Ali, Noor Ellahi and Faqir Muhammad P. Ws. Muhammad Ramzan and Muhammad Hanif identified the dead body which was of their brother Muhammad Sultan. The witnesses also identified last worn clothes of their brother. He arrested the accused Abdul Shakoor and on his personal search, photo copy of I.D. Card of Sultan deceased alongwith currency notes, golden chain were recovered. Statements of Noor Ellahi And Amanat Ali P.Ws. regarding the recovery were recorded by him. He prepared site plan of place of arrest of the accused. Since the P.Ws. also nominated Shamshad accused for the murder of Muhammad Sultan, therefore, the warrant of his arrest were obtained by Investigating Officer and completed all the formalities under sections 87 and 88, Cr.P.C. He completed the investigations and sent the challan to the extent of Abdul Shakoor accused while Shamshad accused was declared absconder.

5. Prosecution produced Pervaiz Akhtar, photographer as P.W.1, Faqir Muhammad, Head Constable as P.W.2, Muhammad Nawaz, Constable as P.W.3, Muhammad Iqbal, Patwari as P.W.4, Muhammad Ameer, A.S.-I. as P,W.5, Dr. Mehr Irshad Ahmad, who conducted post-mortem examination as P.W.6, Zulfiqar Ali, P.W.7, Muhammad Ramzan witness or extra judicial confession of Shamshad and of last-seen as P.W.8, Muhammad Siddique witness of last-seen as P.W.9, Muhammad Ibrahim witness of last seen and recovery of pistol and wrist watch as P.W.10, Muhammad Hanif the witness of extra judicial confession of Shamshad accused as P.W.11, Faqir Muhammad witness of extra judicial confession of Abdul Shakoor as P.W.12, Noor Ellahi witness of extra judicial confession of Abdul Shakoor as P.W.13 and Muhammad Anwar, Sub-Inspector as P.W.14: The prosecution closed its evidence.

6. P.W.6 Dr. Mehr Irshad Ahmad found the following injuries on the person of deceased:-- (i) A fire-arm oval shape lacerated wound 6 c.m. x 4 c.m. x deep going on front upper left chest 8 c.m. above the nipple and close to mid line and margins inverted.. (ii) Fire-arm lacerated wound 10 x 6 c.m. x deep going on outer middle right side of abdomen close to coastal margins, gutt with omentum was coming out from the wound. Margins were everted.

7. It may be noted here, that the appellant in his statement recorded under section 342, Cr.P.C. stated that he had been falsely implicated in the instant case due to suspicion and party faction in the village.

8. Prosecution evidence rests upon, last-seen, extra judicial confession and recovery of pistol at the pointation of the appellant, wrist watch, golden chain and National Identity Card of the deceased. Learned counsel for the appellant has read before me the prosecution evidence. He submits that according to settled law by the superior Courts last-seen evidence is a weak type of evidence. He further, submits that both the P.Ws. in this regard ire. P.W.8 Muhammad Ramzan and. P.W.9 Muhammad Siddique are real brothers of the deceased and they have not given any date and month when they saw the deceased in the company of the appellant, that no reliance can be placed on their testimony. He further, submits that extra judicial confession, which was allegedly made by the appellant before Faqir Muhammad P.W.12 and Noor Ellahi P.W.13 and in this regard, learned counsel for the appellant submits that there was no earthly reasons for the appellant to approach the abovesaid P.Ws. and to make extra judicial confession. He further, submits that as far as recovery of abovesaid articles are concerned that the place from where these, articles were alleged to have recovered was accessible to public. Moreover, no accused person after committing such-like offence would keep these articles with him which allegedly stood proved against the appellant. He further submits that learned trial Court has wrongly appreciated the prosecution evidence which does not inspire confidence. He further submits that the Investigating Officer while appearing before the learned trial Court did not give any reasons whatsoever that under what circumstances and on what basis he had arrested the appellant. Lastly, he submits that it was a case of acquittal and not for conviction as held by the learned trial Court.

9. On the other hand, learned counsel for the State submits that although the witnesses of last-seen are closely related to the deceased but they have no enmity with the appellant so there was no question of false implication of the appellant in the instant case. He further, submits that prosecution has proved its case against the appellant beyond any shadow of doubt through last-seen, corroborated by extra judicial confession and recovery of different articles belonging to the deceased like his National Identity Card, wrist watch and golden chain.

10. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court with their assistance. In the instant case, nobody is named in the F.I.R., it was an unwitnessed occurrence, that there was no eye-witness in this case. The evidence of last-seen was furnished by the real brothers of the deceased Muhammad Ramzan P.W.8 and Muhammad Siddique P.W.9, their testimony is not confidence inspiring. They have not mentioned any date when they had seen the deceased person lastly in the company of the appellant. No independent witness has been produced from cattle market of Okara or from the hotel where both the P.Ws. had allegedly seen the deceased in the company of appellant. To base conviction on such evidence is not safe. As far as evidence of extra judicial confession is concerned, which has been furnished by Faqir Muhammad P.W.12 and Noor Ellahi P.W.13, from their evidence it is not proved that why the appellant had to approach both of them and to admit his guilt. Further, it has not come on record that how much influence the said P.Ws. had on the complainant party, in order to secure pardon for the appellant. Both these witnesses are also witnesses of recovery of pistol and wrist watch. They both do not belongs to the place from where these articles were allegedly got recovered by the appellant. This is a clear violation of section 103, Cr.P.C. Both the P.Ws. belong to brotherhood of the deceased. No reliance can be placed on their testimony. As far as, recovery of cash of Rs.15,287, P.5, golden chain, P.6 and identity p card P.7 coupled with the recovery of National Identity Card P.8 'are concerned, the witness of these is Noor Ellahi P.W. He belongs to Chak, No. 105/12-L while the recovery has taken place from another Chak. His evidence is also not confidence inspiring and there is a clear violation of section 103, Cr.P.C. It is a settled law, that in the case of circumstantial evidence, the prosecution evidence should be of a such nature that all the links of the chain should be connected with each other and there should not be any missing in those links. Moreover, the evidence should be very reliable and confidence inspiring which in the present case is not forthcoming. While extending the benefit of doubt, I accept this jail appeal. Conviction and sentence awarded to the appellant by the learned trial Court /8 is set aside. He shall be released forthwith if not required in any other case. N.H.Q./A-125/L Appeal accepted.