2006 P Cr (PLP)

MUHAMMAD NAWAZ BHATTI, J.

This judgment shall dispose of Criminal Appeals Nos.347, 342, Criminal Revision No.368 and Criminal Revision No.367 of 2005 which have arisen out of the same judgment.

2. Muhammad Ramzan, Muhammad Zaman, Zawar Hussain, Manzoor Hussain and Maqsood accused were tried by the learned Additional Sessions Judge Chichawatni, in case F.I.R. No.223 of 2004 registered under section 302/34, P.P.C. at Police Station Shahkot and vide judgment dated 29-4-2005, the learned Additional Sessions Judge Chichawatni while acquitting the accused Maqsood, convicted Muhammad Ramzan and Zaman appellants in Criminal Appeal No.347 of 2005 and Zawar Hussain and Manzoor Hussain appellants in Criminal Appeal No.342 of 2005 under section 302/34, P.P.C. and sentenced each of them to life imprisonment for causing the death of Mst. Amiran Bibi. They were also directed to pay compensation of Rs.50,000 each to the legal heirs of the deceased. They were, however, given benefit of section 382-B, Cr.P.C.

3. Briefly stated the prosecution case as contained in the F.I.R. Exh.P.F./1 in that Mst. Ameeran Bibi deceased was real sister of the complainant Mst. Basan Bibi while Mst. Bashiran is also real sister while Allah Ditta is real brother of the complainant. Mst. Noor Bibi and Mst. Muradan Bibi are step-sisters of the complainant Mst. Basan Bibi. There was a dispute of land between Mst. Ameeran Bibi deceased and, Zawr and Manzoor Hussain accused. Mst. Amiran Bibi deceased was pursing the same. She used to stay out of the house for pursuing the case. Zawar Hussain and Manzoor Hussain had been threatening Mst. Amiran Bibi of dire consequences and had always been in search of her murder so that she could not follow the cases. Five days prior to the registration of the case, Mst. Amiran Bibi had gone out of the house and had not returned to her house. The complainant became conscious about her absence. She remained busy in search of her but she was not traced. On 21-9-2004 the complainant became in the knowledge that dead body of Mst. Amiran Bibi was lying in the maize crops of Muhammad Ali Lambardar resident of Deh. Upon this, the complainant along with Muhammad Saleem (P.W.) given up and Waris Ali (P.W.7) and others reached at the spot and saw that the dead body of Mst. Amiran Bibi was lying in the maize crops which was identified by the complainant and one Muhammad Saleem and Waris Ali. Her neck was cut down from the back and her pony tail was also cut down. The tooth of the upper jaw was also broken and a slight cut on the tongue was also found. The complainant had suspicion that Zawar Hussain and Manzoor Ahmad had murdered Mst. Amiran Bibi to get the property. She leaving Muhammad Saleem with the dead body came to the police station for recording the F.I.R. and on her statement, the F.I.R. was lodged.

4. Shabbir Hussain S.-I. (P.W.12) is the Investigating Officer of this case. He visited the place of occurrence and inspected the same. He also inspected the dead body of Mst. Amiran Bibi and prepared injury statement Exh.P.H. and inquest report Exh.P.I. He collected the blood-stained earth and made it into a sealed parcel and took the same into possession vide recovery memo. Exh.P.E. He also recorded statements of two P.Ws. under section 161, Cr.P.C. On 22-9-2004 Rafique constable handed over to him last-worn clothes of the deceased i.e. Chadar P.1, Salooka P.2, Dopatta P.3, Kameez P.4, Gut P.5, handkerchief P.6 and four keys P.7/1-4 and a sealed parcel along with police paper and post-mortem report which he took into possession vide recovery memo. Exh.P.A. He also recorded the statements of witnesses under section 161, Cr.P.C. On 25-10-2004, he arrested Ramzan, Zaman and Maqsood accused. On 29-10-2004, he recorded supplementary statement of the complainant Mst. Basan Bibi. On 2-11-2004, he recovered two pairs of ear-rings from Muhammad Ramzan accused. On 7-11-2004, he also recovered Kassi P.10 from Muhammad Zaman accused. After usual investigation, he submitted the challan in the Court. The charge was framed against the accused, to which they pleaded not guilty and claimed to be tried.

5. In order to prove its case, the prosecution examined as many as twelve witnesses. Mst. Basan Bibi, complainant, appeared as P.W.8 and reiterated the contents of the F.I.R. She further deposed that during the course of investigation besides Zawar and Manzoor, Zaman, Ramzan and Maqsood were also found involved in the murder of Mst. Ameerah Bibi. She also identified the recovery memo. (Exh.P.8/1-2) through which ear-rings of the deceased were allegedly recovered from the accused. Waris Ali (P.W.7) corroborated the statement of the complainant regarding the occurrence. Said P.W. also identified the dead body at the time of autopsy. He also attested the sealed parcel containing blood-stained earth. He also attested the recovery memos. of ear-rings and Kassi (Exh.P.C.) and (Exh.P.D.) respectively. Muhammad Arif (P.W.5) stated that he was present in his house along with Zulfiqar (P.W.6) when Ramzan and Zaman accused came there. They made extra-judicial confession regarding murder of Mst. Ameeran Bibi and sought pardon one after the other. Zulfiqar (P.W.6) corroborated the statement of Muhammad Arif (P.W.5). Dr. Afifa Wasim (P.W.9) who conducted the post-mortem examination on the dead body of Mst. Amiran and found that rigor mortus was absent, post-mortem staining was present, eyes were swollen and closed, tongue was swollen and protruded, skull was separated from the head, left ear lobule was not present, right ear lobule was cut 1 c.m. x 1 c.m. hanging with ear, rectal prolabs intestines protruding through anus, uterus was prolapsed and coming through interosseous and on dissection of skull he found that skull was already opened and was separated from the head and brain matter was present, on dissection of chest, she found that right and left lungs were taken, heart was present and was normal and both chambers were empty and also on dissection of abdomen, she found that kidneys, spleen, liver were liquefied and stomach was empty and bladder was empty and uterus was empty. In her opinion, cause of death was due to head injury. Probable time that elapsed in between injury and death was immediate and between and post-mortem was more than 72 hours. Statement of Shabbir Hussain S.-I./Investigating Officer (P.W.12) has already been discussed above. The remaining witnesses are formal in nature and need not to be discussed. The learned D.D.A. tendered in evidence reports of Chemical Examiner (Exh. P. K.) and (Exh. P. L.) and that of Serologist (Exh. P. M.) and closed prosecution evidence.

6. In their statements under section 342, Cr.P.C. the accused denied the allegations levelled by the prosecution and submitted that they were falsely implicated in this case. They did not opt to appear in the witness-box on oath to make the statement as required under section 340(2), Cr.P.C. nor did they opt to produce defence evidence.

7. Learned counsel for the appellants, Manzoor and Zawar, has contended that there is no evidence qua them which could connect them with the commission of the offence except that they were implicated on suspicion; that during the investigation, they were declared innocent by the police and were placed in Column 2 of the challan; that it was in fact a blind murder case in which they were found innocent but implicated falsely; that the medical evidence contradicted ocular evidence and that there was litigation pending between both the parties and the appellants were in possession of the disputed land and rather the complainant had a strong motive to falsely involve them and in this behalf he has relied upon Allah Bakhsh and another v. The State PLD 1978 SC 171 and Mutiullah and others v. The State 1998 PCr.LJ 1599. The learned counsel appearing on behalf of Muhammad Ramzan and Muhammad Zaman appellants has submitted that there is no motive against them and even no suspicion was made against them and that the evidence of extra-judicial confession before the close relatives of the deceased is of no consequences when there is no corroborative piece of evidence to support the evidence of extra-judicial confession which is otherwise a weakest type of evidence and in this behalf reliance is placed upon Umar Draz v. State 1994 PCr.LJ 1942 and Zafar Iqbal v. State 1985 PCr.LJ 1216.

8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant contended that Manzoor and Zawar appellants had a motive to kill the deceased as there was admitted litigation between the deceased and Manzoor Hussain and Zawar Hussain over a dispute regarding 6 acres of land and that the appellants could be the beneficiary of the land in question and the prosecution has produced a connecting evidence to convict the appellants beyond any shadow of doubt and in this behalf reliance is placed upon Abdul Zahir and another v. The State 2000 SCMR 406.

9. I have heard learned counsel for the parties, perused the record and reappraised the evidence.

10. Admittedly, it is an unseen occurrence and is a blind murder case. Dead body of Mst. Amiran Bibi, real sister of the complainant, was traced from the maize crop owned by Muhammad Ali and Muhammad Afzal Lambardar but those persons had not been produced by the prosecution as witnesses. Muhammad Ramzan and Muhammad Zaman, appellants, were not nominated in the F.I.R. Manzoor and Zawar appellants were involved on suspicion. Even they were declared innocent by the police during investigation and were placed in Column 2 of the challan. Only motive is attributed to them and that too remained shrouded in mystery. The complainant had involved the said appellants for the reasons that there was a dispute between them and the deceased regarding some land and Mst. Amiran Bibi deceased was following up the cases in the Courts and that they had oftenly threatened Mst. Amiran Bibi to kill her because of the dispute. Motive could play vital role against the appellants if the same had been coupled with un-improbable evidence in the shape of ocular account, or last seen evidence. So in the absence of any supporting evidence, motive alone cannot be used against the appellants. Even otherwise, motive is double-edged weapon. If it could be the reason for the accused to murder the deceased, it could well be the reason for the complainant and the P.Ws. who were close relations of the deceased to charge the accused falsely on suspicion. Motive therefore, by itself proves nothing. I am supported by the authorities relied upon by learned counsel for the appellants i.e. Allah Bakhsh and another v. The State PLD 1978 SC 171 and Mutiullah and others v. The State 1996 PCr.LJ 1599. Medical evidence contradicts the ocular evidence as Dr. Afifa Waseem (P.W.9) who conducted the post-mortem examination on the dead body of Mst. Amiran Bibi, had stated in her cross-examination that when the dead body was brought before her for the autopsy the external features had been abolished due to decomposition of the body and the identification of the dead body was not possible because of decomposition and swollen of the features of the body. Even she was not certain about the cause of death of Mst. Amiran Bibi.

11. As far as Muhammad Ramzan and Muhammad Zaman appellants are concerned, there is no motive against them and even no suspicion was made against them. Only extra-judicial confession is available against them in the shape of statements of Muhammad Arif (P.W.5) and Zulfiqar (P.W.6). I wonder as to how such a version put forth by the said witnesses can be made a valid basis for conviction of the appellants. It is well-settled that the extra-judicial confession is the weakest type of evidence and cannot be safely relied upon unless corroborated by some independent evidence of high standard. Reliance in this behalf is placed upon Umar Draz v. The State 1994 PCr.LJ 1942 and Zafar Iqbal v. The State 1985 PCr.LJ 1216.

12. The occurrence took place on 16-9-2004 and Kassi P.10 was recovered from the only accused namely Muhammad Zaman on 7-11-2004 i.e. after about two months of the occurrence. As the cause of death had not been declared by the doctor, the recovery proceedings cannot be admitted in the eye of law. Even violation of section 103, Cr. P. C. is there.

13. The upshot of the above discussion is that the appellants are not found involved in this case as there is no material available on the record to connect them with this offence. Therefore, this Appeal and Criminal Appeal No.342 of 2005 are accepted, the impugned judgment is set aside and the appellants Muhammad Ramzan, Muhammad Zaman, Zawar Hussain and Manzoor Hussain are acquitted of the charge while giving them the benefit of doubt. The appellants Muhammad Ramzan and Muhammad Zaman are on bail. Their bail bonds shall stand discharged. Zawar Hussain and Manzoor Hussain appellants shall be released forthwith unless required to be detained in any other criminal case.

14. With the acceptance of the afore-mentioned two appeals, Criminal Revisions Nos.367 and 368 of 2005 are dismissed. H.B.T./M-363/L Appeals accepted.