2004 PLP 910 (MLD)

5. Exh.P.D. Recovery memo. of crime empty P.3.

6. Exh. P. E. , Memo of pointtion of place of alleged murder.

7. Exh.P.F., Memo of identification of the dead body.

8. Exh.P.G. Recovery memo. of last‑worn clothes, P,1 and P.2.

9. Exh.P.H., Recovery memo. of pistol, P.4.

10. Exh.P.H./1, Memo of place of recovery of pistol.

11. Exh.P.J., Recovery memo. of Chhuri, P.5.

12. Exh.P.J./1, Memo. of place of recovery of Chhuri.

13. Exh.P.K. Recovery memo. of bicycle, P.6.

14. Exh.P.K./1, Memo of place of recovery of bicycle.

15. Exh.P.L., Site‑plan.

16. Exh.P.L./1, Site‑plan.

17. Exh.P.M., Post‑mortem report.

18. Exh.P.M./1, Diagram.

19. Exh.P.N., Inquest report.

20. Exh.P.O., Site‑plan of place of recovery of the dead body.

21. Exh.P.P., Site‑plan of place of occurrence without scale.

22. Exh.P.Q., Site‑plan of place of alleged murder of deceased.

23. Exh.P.R., Report of Chemical Examiner.

24. Exh.P.R./1, Report, of Serologist.

25. Exh.P.S., Report of Chemical Examiner.

26. Exh.P.S./1, Report of Serologist.

27. Exh.P.T., Report of Forensic Science Laboratory. The articles listed below were admitted into evidence through under‑mentioned exhibits:‑‑ Last worn clothes, P.1 and P.2 (Exh.P.G.). Crime empty, P.3 (Exh.P.D.). Pistol, P.4 (Exh.P.H.). Chhuri, P.5 (Exh.P.J.). Bicycle, P.6 (Exh.P.K.).

6. Statements of the accused under section 342, of the Cr.P.C. were recorded on 13‑4‑2002, in which they denied their involvement in the case and pleaded to have been falsely implicated in the case.

7. After hearing the arguments of the learned counsel appearing on behalf of the State as well as the accused, scanning the record and appreciating the evidence brought on the record, learned Additional Sessions Judge, Bahawalnagar, acquitted all the three accused persons from the charges under sections 364, 302, 34 of the P.P.C. on 25‑4‑2002. Aggrieved from this judgment, Muhammad Yousuf, informant, has filed the instant appeal.

8. Learned counsel appearing on behalf of the appellant complainant/informant has argued that the judgment in question was delivered without fully appreciating the evidence of the prosecution. According to the learned counsel, it was a fit case for conviction of the accused. When inquired as to what portion of the material evidence was not appreciated correctly by the learned trial Court, learned counsel was not able to point out any important piece of the evidence, which could form the basis of conviction. In fact the learned counsel for the appellant wants us to reappraise the evidence and to reach an independent conclusion.

9. It is settled law that to get the accused convicted in an offence of capital punishment, the prosecution is bound to prove its case, wherein no weakness could be found to give the benefit of doubt to the accused. In the instant case, we have found that edifice of the prosecution case has been built on the following foundational stones:‑‑ A. Motive B. Last seen evidence C. Extra judicial‑confessions. D. Recovery of weapons of offence at the alleged pointation of the accused.

10. To satisfy our conscience, we have also scanned the evidence produced by the prosecution in the trial Court. As far the motive is concerned, the allegations leveled in the F.I.R. by the informant were to the effect that Muhammad Hussain and Ghulam Mustafa accused had suspicion that Muhammad Latif had illicit relations with the sister of Muhammad Hussain. When this bold and bald accusation carne into the test of cross‑examination, the witnesses P.W.1, Muhammad Yousuf, informant and Muhammad Akram; P.W.2, could not point out as to which sister/lady had alleged illicit relations with Muhammad Latif deceased. It was further found from the statements of these P.Ws. that all the sisters of Muhammad Hussain were already married and residing with their husbands peacefully in different districts. So, the motive was correctly B found by the learned trial Court to be a mere throwing pebbles in the river without any justification.

11. As far the last seen evidence was concerned, the prosecution had failed to prove it up to the hilt. The last glimpses, of Muhammad Latif victim were shown to be entertaining into the Baithak of Abdul Ghaffar Mistri in the company of accused but Abdul Ghaffar Mistri had denied this assertion/version of the prosecution. It is pertinent to point out here that after the alleged last seen evidence at the house of Abdul Ghaffar Mistri, there is a gap, which has not been ably filled in by the prosecution. Accordingly, the learned trial Court had correctly appreciated the, evidence on this point and the learned trial Court having found contradictions in the statements of the P.Ws. and improbable version of the prosecution did not believe it.

12. The third portion for construction of the building of the prosecution story was the evidence of extra judicial‑confession. The learned trial Court had exhaustively dealt with this evidence and had pointed out the contradictions and had analyzed the statements of the witnesses. Statement of Muhammad Yousuf P.W.1 had rightly been discarded on this point as he was an interested witness and could not be believed as to the story, he weaved to prove the extra judicial confession. The learned trial Court had rightly pointed out without citing the authoritative judgment delivered by the Hon'ble Supreme Court of Pakistan reported in 1996 SCMR 188 (Sarfraz Khan v. The State and 2 others) that to believe extra judicial‑confession, three ingredients are essential i.e., firstly, that the extra judicial‑confession was in fact made, secondly, that it was voluntarily made and, thirdly, it was truly made. A fourth requirement is added by us which can be that to prove the extra judicial‑confession it has to be proved by the prosecution that there was a motivating force behind it, because an accused cannot be believed to open his mouth with regard to the performance of his criminal acts, unless and until there is a reason behind it. No one can be presumed to state to each and every person of his criminal actions, therefore, this important factor is missing in this alleged extra judicial confession.

13. Another piece of evidence, which the informant wants to use against the accused, is the recovery of alleged weapons of offence i.e. pistol and Chhuri. The dead body was found from the canal and it is the case of prosecution itself that some unknown persons had informed the informant with regard to it, therefore, the allegation of pointation of the corpse of the victim cannot be attributed towards the accused. As far the place of occurrence and the recovery of weapon of offence are concerned, these are also not believable on its tenor, because a prudent man cannot believe that a person, who had used a weapon for commission of an offence, would keep it in safe custody for its recovery and would not try to destroy it. The blood cannot possibly by found on a weapon like Chhuri after a month of its use. In this way the use of pistol has also not been found above board by the learned trial Court. When one crime empty was only found from the place of occurrence and the other alleged three shots to the deceased had gone away unexplained. Moreover, the place where the alleged blood‑stained earth and crime empty remained for about one month is unbelievable as it was an open place and being used as a passage. So we find that the foundation of the prosecution case is based upon implausible and incredible story and cannot attract conviction to the accused persons for the offence with which they have been charged.

14. Before parting with this judgment, we would like to add that the appeal against acquittal is a difficult job and task for the prosecution to get the acquittal converted into conviction. It is like a liberated bird, who had flown away towards the limitless space and free air, but now prosecution wants to get him back again into his cage. When rights of liberty have once been granted to an accused by the learned trial Court on sound judicial principles of appreciation of evidence and after observing and delivering cogent explanations in accordance with judicial conscience especially with regard to their acquittal, the judgment cannot be set aside, merely to satisfy the itching passion of the complainant. The judgment must be proved to have been delivered with foolish appreciation of evidence; with perverse actions while delivering the judgment or a mind of prudent man cannot accept the reasons adduced for the release of the accused. The appreciation of evidence has not raised the one and the only conclusion of guilt. So, the requirements of 1994 SCMR 1928 (Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others) having been fulfilled, the acquittal cannot be held as unsustainable. So, we have found no fault with the judgment dated 25‑4‑2002 of the learned trial Court, therefore, we dismiss this appeal. N.H.Q./M‑62/L Appeal dismissed