2001 PLP 1384 (YLR)

4. Prosecution version unfolded in the First Information Report, authored by Abdul Rehman is that a year back he purchased Wagon bearing No.8853/PRL which was driven by Muhammad Suleman and Muhammad Siddique alias Abu Bakar and plied from Mauza Bhoon to Darya Khan. Muhammad Bilal son of Lal worked as a conductor. Previous evening when his son Suleman and Siddique his nephew reached from Darya Khan to Maker Lundi Neshaib, Muhammad Suleman his son and Bilal Conductor alighted from the wagon and told Muhammad Siddique his nephew that he should take the wagon and they would arrive after purchasing ice. Muhammad Suleman not having reached till night he alongwith his brother Malazam Hussain, and Muhammad Siddique nephew on a wagon went to the house of Bilal Conductor situated in Lundi Nashaib and inquired from Bilal about Suleman who told them that Suleman was left at Baluchanwali Pulli whereas he came back. On hearing this reply all of them started search for Suleman but could not find him. In the morning he alongwith Malazam Hussain his brother and Siddique nephew again went out in search of Suleman and when they reached Katcha Path within the vicinity of Mauza Kharal they saw at some distance from the reeds the dead body of Muhammad Suleman which had three injuries on the head and his neck was tied with a Dhooti, which used as noose with which he was killed by tightening it after which the dead body was thrown in the reeds.

5. Motive for the occurrence is stated to be illicit relations of Muhammad Suleman with the sister of Muhammad Bilal Conductor. Mumtaz son of Muhammad Khan resident of Lundi Nashaib had also illicit relations with the sister of Bilal conductor which led to a number of fights between Mumtaz and Muhammad Suleman who was stopped from visiting the house of Bilal. His suspicion centred around Mumtaz to have killed his son in connivance with others.

6. Mumtaz was discharged by the police prompting Malazam Hussain, brother of Abdul Rahman complainant to file a complaint Exh.D.F. before the Sessions Court which finally ended in a compromise Exh.D.H. on 22-3-1997 resulting in order of acquittal of Mumtaz vide order, dated 22-3-1997 which is Exh.D.I.

7. Nazir Ahmed S.-I./S.H.O. Police Station Darya Khan after recording complaint of Abdul Rehman proceeded to the place of occurrence, inspected the dead body; prepared injury statement Exh.P.1 and inquest report Exh.P.X. He took into possession Dhoti P.2 through recovery memo. Exh.P.D stated to be belonged to the appellant. He also took in possession National Identity Card P.4 and Driving Licence P.3 through recovery memo. Exh.P.F. belonging to the deceased. The dead body was sent to the mortuary for post-mortem examination. On 19-8-1995 appellant was arrested and after completion of the investigation challan was submitted in Court.

8. Dr. Easab Khan while posted as Medical Officer, District Headquarters Hospital, Bhakkar on 13-7-1995 conducted post-mortem examination on the dead body of Muhammad Suleman aged 20/22 years. He observed post-mortem stainings present. on dependent parts. Rigor mortis was fully developed, ants were present on scalp, skull, back and thighs. Dried clotted blood was found present in left ear. Following two injuries were noted by the doctor:-- (1) A legature mark 17 x 5 c.m. on the front of neck, horizentally at the level of thygight cartilade. (2) Post-mortem wound on scalp on the vartex in an area of 10 x 7 c.m. punctured by ants, again said produced by ants, present on the wounds. Area was devoid of hair and wounds were abrasins like with slight bleeding. In the opinion of the doctor death case caused by asphysia caused due to strangulation. Probable time between injuries and death was within half an hour and between death and post-mortem about 12 to 24 hours.

9. Appellant was indicted, at the trial he denied charge and pleaded not guilty. During the trial prosecution examined as many as 13 witnesses.

10. Learned counsel has bitterly 'criticised the prosecution evidence and stated that it was a case of no proof. Complainant earlier named Mumtaz as an accused but the police having discharged him the brother of the complainant Malazam Hussain filed a private complaint which resulted in a compromise because Mumtaz hailed from an affluent family and paid a huge amount to the complainant side to persuade them to compromise the matter as a result of which Mumtaz was acquitted and thereafter the whole blame centred around the present appellant as he was a poor person and could not effectively defend himself of the false charge. Conversely learned counsel for the complainant supported the conviction and sentence recorded by the trial Judge.

11. I have given my serious consideration to the argument raised by the respective sides and have also perused the record.

12. Muhammad Siddique cousin of the deceased and nephew of the first informant was examined as P. W .7. He supported the contents of the F.I.R. His evidence was treated as last seen evidence. Similarly Muhammad Ramzan appearing as P.W.9 stated that at Mauza Lundi Nashaiban he saw Muhammad Bilal, Mumtaz and an unknown person together. For last seen evidence to be trustworthy it should be in close proximity to the death of the deceased and the place from where dead body is recovered. None of these two tests conform to the facts deposed to by Muhammad Siddiq and Muhammad Ramzan. Muhammad Ramzan even does not know the name of third person, therefore, it would be too far-fledged notion to suggest that the unknown person was Suleman. Criminal law requires exactitude of evidence, which is definitely missing in the statement of Muhammad Ramzan. Last seen evidence, therefore, is of no use to the prosecution.

13. Natha son of Khadim Hussain P.W.10 and Mustafa P.W.11 deposed that on 17-7-1995 they were sitting together in the baithak of Natha in Darya Khan town when Mumtaz and Bilal arrived accompanied by Muhammad Khan father of Mumtaz. Muhammad Bilal then disclosed in presence of Mustafa P.W. that he was employee of Muhammad Suleman deceased as a conductor on his wagon and it was found out by him that Suleman deceased developed illicit intimacy with his sister and 5 days earlier he in the company of Suleman reached the vicinity of Mauza Kharal where he murdered Suleman by strangulation. It was requested from Natha and Mustafa to bring amicable settlement between him and the family of the deceased. The accused thereafter left his Baithak alongwith Muhammad Khan and Mumtaz. Natha is the brother of Abdul Rahman complainant and his sister Hussain Bano is married to Malazam Hussain P.W. Similarly Mustafa was related to the deceased who was son of his maternal uncle. It is strange that on17-7-1995 extra-judicial confession by the appellant was made to these two witnesses who made no attempt to capture Bilal although Mumtaz and Muhammad Khan were also there whose help could have been sought and they would have been too anger to render help as Mumtaz was earlier suspected to have done away the deceased. Not only this they waited for two days and thereafter on 19-7-1995 got their statements recorded with the police. The conduct of both these two witnesses seems very strange and contrary to human behaviour. Being closely related to the deceased they could have attempted to take the appellant in custody if apprehension of the appellant was considered dangerous they could have at least raised hue and cry attracting others to help them in getting hold of the appellant. They waited for two days before they informed the police and the complainant. Testimony of these two witnesses is nothing but a pack of lies and no credence can be placed upon their deposition. There is also disharmony between the ocular testimony and the medical evidence. The doctor has stated in clear words that although the deceased died because of strangulation yet Dhoti wrapped around the neck of the deceased was not tightened to kill him as it could not cause death. The Police Officer out of his anxiety to bolster the prosecution case due to his wisdom, brought in Dhoti stating the same to belong to the appellant and giving an impression that the appellant used Dhoti to strangulate the deceased. No creditable evidence has come on record identifying the Dhoti to belong to the appellant.

14. There is no other piece of evidence which connects the appellant with the commission of offence of murder. That being the case the evidence produced by the prosecution has not at all satisfied me that it in any manner proves his culpability. Resultantly I accept the appeal, set aside the conviction and sentence recorded by the trial Judge vide his judgment, dated 27-2-1998 and acquit the appellant. He shall be released forthwith if not required in any other case.

15. Criminal Revision No.116 of 1998 for the reasons rendered in this judgment is without merit and is accordingly dismissed. H.B.T./M-690/L Appeal accepted.