1999 PLP 1240 (MLD)

(2) Multiple abrasion in area of 8 c.m. x 4 c.m. on front of neck. (3) Multiple contusion marks 10 c.m. x 8 c.m. all around lower part of right forearm, with wrist joint. (4) Multiple contusion marks in an area of 9 c.m. x 8 c.m. all around the lower part of right forearm and wrist joint. (5) Multiple abrasions in an area of 7 c.m. x 4 c.m. on the posterior side of right elbow joint. (6) Multiple abrasion 1.5 c.m. x 1 c.m. on lateral and upper part of right thigh. (7) Multiple abrasions in an area of 4 c.m, x 1.5 c.m. on medial and upper part of right thigh, (8) Multiple abrasion in an area of 4 c.m. x 1 c.m. on medial and upper part of the left thigh. Death in his opinion was caused by asphyxia due to suffocation. All the injuries were ante-mortem caused by blunt weapon. Time between death and injuries was immediate while between the death and post-mortem was 5/6 days. He obtained three anal swabs and sent the same to the chemical examiner which were found stained with semens vide report Exh.PM.

7. The accused were arrested on 3- 3-1993 by Abdul Karim, Inspector S.H.O. (P.W.9). Safdar Shah accused while in police custody led the police party and got recovered horse PI from his house which was taken into possession by the police vide metro. EXh.PB. Similarly on the same day Muhammad Ashraf Accused while in police custody led the police and got recovered Tonga Exh. P2 from its residential house which was taken into possession vide memo. Exh. PC. Both the recoveries and memos were attested by Mumtaz Ahmed P.W.2, Niaz Ahmed (given up P.W) and Abdul Karim P.W.9. After completion of the investigation the accused were challaned and sent up for trial.

8. To prove the charge, prosecution produced 11 witnesses while Muhammad Ashraf and Safdar Shah accused were examined under section 342, Cr.P.C. and they denied the prosecution case and stated that they had been falsely implicated in this case. They did not appear as their own witnesses as required under section 340(2), Cr.P.C. nor did they produce any defence evidence.

9. With the assistance of the learned counsel for the appellants the record of the case has been perused and I have been taken through evidence recorded by the learned trial Court. The learned counsel for the appellants lave been heard at length and the learned counsel for the State has also been heard . . . .

10. The prosecution to prove the tact that the deceased had left in company of the accused relied on the evidence of Muhammad Ashiq P.WA, Mumtaz Ahmed P.W.2 while Niaz Ahmed was not produced. All these three persons are very closely related to the deceased. Muhammad Ashiq P.W.1 being his father while Mumtaz Ahmed P.W.2 and Niaz Ahmed (given up P.W) being the brothers of Muhammad Ashiq. The deceased left the tonga stand with the accused at 2-00 p.m. but none from the locality or any independent tonga driver has substantiated the case that the deceased actually left with the accused on that date, Furthermore, it is also not understandable that if the father was nut fit to ply the tonga then why did he allow his young minor son to accompany the accused when he could have asked one of his brothers to take his tonga and drop the accused at their destination which inevitably forces me to draw this inference that none of these P.Ws., were present thereat the relevant time and it is yet to be' proved whether the deceased was plying tonga or not. To strengthen the last seen evidence Muhammad Ramzan has appeared as P.W.3 who states that he had seen the deceased in company with the accused on that day. No doubt that Muhammad Ramzan P.W.3 has no relation either with the complainant, the deceased nor he has any enmity with the accused but the question is that how he happened to know the accused by name and how he happened to recognise the deceased when there is no evidence of knowing them personally and, thus, it was just by chance that he was there at that specific time on that day. Thus, his evidence cannot be accepted. Furthermore, he appeared before the police on 21-2-1993, his statement was recorded belatedly by the police which, too, in spite of that delay is incomplete, insufficient and not worth reliance.

11. Muhammad Islam appeared as P. W.4 and he stated that on that fateful night he was watering his field and he saw a tonga standing on the road and two persons going across the Rajbah and throwing a bag into wheat filed which own his query he was told that it was waste grass in the bag and it was from that very place that the dead body of the deceased was recovered by the complainant. Though the witness states it to be a moonlit night yet he had seen the tonga from a distance of 4 Kanals from where under this light the identification of a person cannot be made easily and relied upon. Thus, the evidence of this P.W. is also full of infirmities and not worth reliance.

11. Shah Bahrain P.W.10 states that both the accused made an extra-judicial confession before him while he was getting his car filled with petrol at the Petrol Station. The confession is a joint confession which is nullity in the eye of law and cannot be considered as legally admissible evidence. Hence this evidence is ruled out of consideration on the legal plane as well as factual one as the accused have stated in their statements that they were not having very cordial relations with this witness prior to this occurrence.

13. Further the prosecution has not charged the accused under section 377 P.P.C. and thus the anal swabs taken by the doctor and found stained with semens by report Exh.PD, brings no guilt towards the accused.

14. The last incriminating evidence against the appellants is that horse EXh.PI was recovered at the instance of Safdar Shah accused while tonga Exh.2 was recovered at the instance of Muhammad Ashraf. For the sake of arguments even if it is believed that horse and the tonga were recovered and that the recovery stands proved beyond doubt, it may be, however, strong yet it cannot be alone made a basis for conviction, but I am afraid that this recovery appears to have been planted to strengthen the prosecution case. The evidence collected to prove case against the accused is that they were found getting rid of the dead body of the deceased by disposing it of in a wheat field at night time then the question is why should they keep the horse and the tonga of the deceased in their house. They could have easily left the tonga and the horse in some uninhabited area to be found later on and not kept it as souvenir for police to recover the same from them and to implicate them for an offence which was not witnessed by anybody.

15. Thus, from the above discussion it precipitates that the prosecution has miserably failed to bring home the guilt of the accused, and, therefore, the appeals of the appellants are accepted and they are acquitted of the charge. They shall be released forthwith if not required in any other case. H.B.T./S-192/L Appeal accepted.