2005 PLP 2301 (YLR)

This judgment will dispose of Criminal Appeal No.50 of 2002 and Criminal Revision No. 124 of 2002 which have been directed against the judgment, dated 18-1-2002 passed by the learned Additional Sessions Judge, Vehari in case F.I.R. No.30 of 1998, dated 12-1-1998 under section 302/34, P.P.C. registered at Police Station, Mitroo District, Vehari, whereby he acquitted co-accused Ghulam Fareed and Ghulam Muhammad of the charge whereas the appellant namely Shaukat Ali-appellant was convicted under section 302(b), P.P.C. and sentenced to life imprisonment for committing the "Qatl-e-Amd" of Allah Ditta. He was further ordered to pay compensation worth Rs.1,00,000 (rupees one lac) to the legal heirs of deceased under section 544-A, Cr.P.C: in default thereof he has to suffer simple imprisonment for six months. He was however, given the benefit of section 382-B, Cr.P,C.

2. Through this Criminal Appeal No.50 of 2002 Shaukat Ali appellant has challenged his conviction and sentence, whereas Khuda Yar complainant has sought for enhancement of sentence awarded to Shaukat Ali accused through Criminal Revision No. 124 of 2002.

3. The prosecution story as narrated by the complainant Khuda Yar (P.W.2) through F.I.R. Exh.PB, dated 12-1-1997 is that on 1-1-1998 his deceased son namely Allah Ditta aged about 24/25 years left the house at "Maghrib Wela" on bicycle for Garh More. The deceased had also Rs.8,000 (rupees eight thousand) with him and he never came back. The complainant made efforts to trace him and on 12-1-1998 it was informed that a dead body of a man was lying in Canal 7-R. The complainant along with Muhammad Akram and Muhammad Ikraam reached there and identified the dead body as that of his son. After identification, injuries were found on the face and head of dead body. According to the complainant his son Allah Ditta had been murdered by Ghulam Fareed, Shaukat (appellant) and Ghulam Muhammad. The motive was that accused Ghulam Fareed and Ghulam Muhammad had purchased land measuring two and a half acres from one Daud Khan Pathan in the year, 1997 but complainant filed a suit for pre-emption against the accused persons being joint owner of 12 Marlas,.in the said land. The complainant obtained stay order but the accused party illegally possessed the land belonging to the complainant. After taking possession, the accused had threatened the complainant that they would teach him a lesson for filing the pre-emption suit and due to this reason they had murdered his son of complainant.

4. After having completed usual formalities and investigation of the case, the police submitted challan against accused persons before the learned counsel of competent jurisdiction.

5. The prosecution in order to prove its case produced as many as nine witnesses namely Riaz Hussain P.W. Khuda Yar P.W.2, Muhammad Ikraam P.W.3, Muhammad Hussain P.W.4, Muhammad Amin P.W.5, Doctor Rana Abdul Ghaffar, Medical Officer P.W.6, Muhammad Saleem, Sub-Inspector Investigating Officer P.W.7, Nazar Abbas P.W.8 and Muhammad Iqbal P.W.9. Riaz Hussain P.W. prepared the site-plan of place of occurrence. Khuda Yar complainant P.W.2 reiterated the contents of F.I.R. and denied that prior to the occurrence one person namely Ghulam Fareed had remained stayed at his house for about four months and further denied that this deceased son had developed illicit relations with the wife of that person. Muhammad Ikraam P.W.3 corroborated the statement of P.W.2. Muhammad Hussain P.W.4 is the witness of last seen occurrence. He stated that on 1-1-1998 at evening time he along with Manzoor P.W. was going from Garh More to Chak No.74/15-L when they saw in the way Ghulam Farid; Ghulam Muhammad and Shaukat accused persons conversating with Allah Ditta deceased. They asked Allah Ditta about his presence with the accused persons and he replied that they were talking about the disputed land. During his cross-examination P.W.4 admitted his relationship with the complainant. He also stated that there had been a dispute of land between accused and complainant party before the incident of murder. Muhammad Amin P.W.5 stated that after about 4/5 days of the recovery of dead body, he was present at Garh More at a medical store along with Muhammad Shafi about 9/10 a.m. Meanwhile, Ghulam Farid, Shaukat Ali and Ghulam Muhammad accused came in front of the shop and called him and said Muhammad Shafi and they confessed that they had murdered Allah Ditta deceased due to the dispute of land. During the course of his cross-examination P.W.5 stated that he knew the family members of the accused persons and the story of murder was stated to him by the accused persons.

6. Dr. Rana Abdul Ghaffar, Medical Officer P.W.6 conducted the post mortem examination of Allah Ditta deceased. He opined that death was caused due to injury to brain which was due to fracture of skull. ti According to the Doctor all the injuries were ante mortem and caused by sharp-edge weapon. Duration between injury and death was within few minutes while the probable duration between the death and post-mortem examination was within two weeks. During the course of his cross-examination P.W.6 stated that he could not state the exact time of death of deceased. However, he gave the approximately time of death within two weeks. Muhammad Iqbal S.I. P.W.9 stated that on 12-1-1998 he recorded the, statement of complainant Exh.PB while he was present in Chowk Mitroo on his official duty. He went to the place of occurrence. He prepared the injury statement Exh.PE/2 and inquest report Exh.PE/3. The dead body was sent for post mortem examination through Shamas ud Din constable and he also prepared rough site-plan Exh.PF. He also recorded the statements of P.Ws under section 161, Cr.P.C.

7. Statement of Shaukat Ali accused was recorded under section 342, Cr.P.C. in which he denied the prosecution case. He further stated that Akram one of the prosecution witnesses was demanding thorough fare from their land which was refused so due to this grudge he was involved falsely in this case.

8. The accused also produced another Investigating Officer of the case namely Muhammad Afzal, Sub-Inspector in defence evidence as D.W.1 who stated that he was directed by the Superintendent of Police, Vehari to investigate the case under his supervision so, he recorded the version of both the parties. In his investigation the accused were found innocent. He denied the recovery of bicycle from the accused persons and also extra-judicial confession. This D.W. was cross-examined by the prosecution wherein he stated that he neither visited the place of occurrence nor the place of recovery of cycle. He did not record the statements of recovery witnesses and the then Investigating Officer namely Muhammad Hussain Inspector who effected the recovery and prepared the recovery memo. He stated that he relied the statements of some persons and children of Chak No.92/WB regarding the recovery of bicycle and all the above said persons were called by him at his office situated at Vehari. He also stated that Muhammad Hussain and Manzoor Hussain P.Ws. who were the witnesses of Waj-Takkar, verified their statements but he did not believe them.

9. Learned counsel for the appellant submits that it is a blind murder and the appellant/accused has been involved in this case due to admitted civil litigation between the parties. The evidence of last seen in a weak type of evidence which could not be based for conviction in this case. The evidence of joint extra-judicial confession allegedly made by accused persons has no value in the eye of law. Recovery has been planted against the accused falsely against the accused/appellant and lastly that appellant/accused has been declared innocent in the last investigation hence the accused/appellant is entitled for acquittal. Further submits that motive as alleged by the prosecution could also be the reason for false involvement of the appellant as motive in such like cases is a double-edged weapon which could cut both ends. Adds that the prosecution has not been able to prove the case against the appellant beyond any shadow of doubt and it is not safe to rely on such evidence. He has relied on "Ali Muhammad v. Bashir Ahmed and others" (2003 SCMR 868) and "Muhammad Arshad v. State" (2005 YLR 1248).

10. On the other hand learned counsel appearing on behalf of the State has vehemently opposed the instant appeal and submitted that this is a case of circumstantial evidence and the evidence of last seen, extra-judicial confession and recovery of bicycle of the deceased from the accused persons fully implicate the accused person/appellant in the case. Further submits that sufficient material and evidence on the record to connect the accused person/appellant with the commission of offence and the conviction had rightly been based upon it as the prosecution has proved its case.

11. I have heard learned counsel for the parties and carefully perused the record. While deposing in his statement recorded under section 342, Cr.P.C. the appellant/ accused denied the allegation of Qatl-e-Amd of Allah Ditta deceased in furtherance of common intention of the co-accused. He also denied the company of deceased along with other co-accused near the bridge on 1-1-1998 at Maghribwela. He further belied the extra-judicial confession and disclosure and recovery of bicycle from his possession. He stated that P.Ws. were inimical towards him and falsely involved him in this case due to their enmity and personal grudge. Muhammad Afzal, Sub-Inspector D. W.1 stated that he had conducted the investigation and found the accused/ appellant innocent. He also denied the recovery of bicycle of the deceased from the appellant/accused and his extra judicial confession. During his cross-examination D.W.1 stated that he never visited the place of occurrence or the place of recovery of cycle. He did not record the statements of recovery witnesses and also the statement of the then Investigating Officer.

12. Appellant has been declared innocent during the course of last investigation and he has also denied the allegation levelled against him. So far as motive is concerned, no doubt that there is civil litigation between the parties yet it could be the reason for false implication of the accused party so that they could be pressurized. There is no direct evidence available on record to connect the appellant/accused with the omission of offence. Moreover, no recovery has been effected from the possession of appellant/ accused. Joint extra-judicial confession allegedly made by the appellant and acquitted co-accused is of no credence having been made before a person at the same time. Further more, this is blind murder. No corroborating evidence was available in respect of last seen evidence and mere recovery of bicycle from the possession of appellant/accused, which was also denied during the course of last investigation would not prove the case and ipso facto would not connect the appellant/accused with the commission of offence. Case was of circumstantial evidence and in such cases and in the case of last seen evidence prosecution evidence should have been cogent and confidence-inspiring. Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be awarded or maintained to accused. In a case which is based on circumstantial evidence, no link should be missing and all circumstances must reach to guilt of accused. Moreover, prosecution had not been able to prove its case against accused beyond shadow of doubt and the prosecution evidence was not such confidence-inspiring which could lead to only conclusion that accused was guilty of murder of deceased namely Allah Ditta. Co-accused had already been acquitted by the learned trial Court on the same evidence. All these circumstances make prosecution case highly doubtful, the benefit of which must go to the accused.

13. For what has been discussed above the instant Criminal Appeal is accepted and the conviction and sentence awarded to the appellant/accused Shaukat Ali by the learned trial Court is set aside. The appellant be released forthwith if not required in any other case. Resultantly Criminal Revision No.124 of 2002 filed by the complainant for enhancement of sentence awarded to the appellant is hereby dismissed. N.H.Q./S-381/L Appeal accepted.