2007 PLP 396 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Mst. Rifat Bano, Fazal Akbar, Muhammad Afzal, accused-respondents and four others, were tried jointly by learned Additional Sessions Judge, Peshawar, in Sessions Case No.39/SC of 2005, for murder of Nusratullah deceased, allegedly committed by them on 5-6-2002, at night time, in the house of the deceased, situated near Gulbahar Chowk, Peshawar. At the conclusion of trial, vide judgment, dated 24-3-2006, the prosecution was found to have failed to establish its case against the accused. Resultantly, benefit of doubly was extended to the accused and they were acquitted of the charge.

2. Complainant Amin Jan, brother of the deceased, feeling aggrieved, has filed instant Criminal Appeal under section 417, Cr.P.C., challenging the acquittal of accused-respondents.

3. The facts which we have been able to gather from the record of the case are, that on the written report of Amin Jan complainant, case F.I.R. No.488 dated 5-6-2002, was lodged, wherein it was stated that at about 1.00 p.m., complainant received information from a co-villager at `Hashtnagri', Peshawar that his brother Engineer Nusratullah had committed suicide. The complainant rushed to the house of the deceased situated at Gulbahar, where the police had already reached and the dead-body of the deceased had been shifted to Police Station. No one was charged. Subsequently, it was found that the deceased had been murdered on the night of 4/5-6-2002 by strangulation through the wire of an electric iron of his house. Initially, at the behest of Mst. Rifat Bano, wife of the deceased, accused Abdul Jalil, Shah Faisal, Khan Gul and Waris, were charged as they were having some differences with the deceased. Thereafter, on 22-11-2002, the complainant and his father charged Mst. Rifat Bano and Fazal Akbar for the murder of Nusratullah, in their statements under section 164, Cr.P.C.

4. After submission of challan on 25-3-2005, accused were summoned. Copies were given to the accused under section 265-C, Cr.P.C. and charge was framed against them on 30-5-2005, wherein all the accused pleaded not guilty and claimed trial. Prosecution examined 19 witnesses and closed its evidence on 13-2-2006. Thereafter, statements of accused were recorded under section 342, Cr.P.C. on 6-3-2006, wherein they pleaded not guilty and claimed innocence. They neither wished to be examined on oath nor desired to produce evidence in defence.

5. Mr. Shahbuddin Khattak, Advocate appearing on behalf of the appellant, vehemently contended that overwhelming evidence was available on the record, to connect the accused-respondents with the murder of Nusratullah deceased, which has not been appreciated in its true perspective, which has occasioned in great miscarriage of justice. The learned counsel added that though it is an unseen occurrence, but the circumstances of the case are such that they fully establish the guilt of Mst. Rifat Bano and Fazal Akbar accused-respondents and prove that they had a hand in affair.

6. We have given mature consideration to the arguments of learned counsel for the appellant and have gone through the record with his able assistance.

7. The instant case reckons with the report lodged by the complainant Amin Jan in writing before the police at about 14 and 15 hours. He had reported that he received information about the occurrence through his co-villager Sajadullah son of Rizwanullah near Hashtnagri that his brother Engineer Nusratullah had committed suicide. Both of them rushed to the spot in a rickshaw. Complainant found his parents and other family members already present there. When he started towards the house he saw police present on the spot busy in investigation, whereas, the dead-body of his brother was lying in the Police Station Gul Bahar which was later on sent to P.M. He reported that death of his brother is not a suicide rather a cruel and brutal murder which is complicated and mysterious matter. He had himself stated that he and his brother-in-law Jan Muhammad had agreed that though they have named of some suspicious persons in mind but they could not expose them to the police so that the police is not misled in its investigation. In fact murder of their brother is the conspiracy of some persons whose name he could not disclose for certain reasons and that he would inform the police about the name of accused after deep thoughts. On basis of his report instant F.I.R. was registered.

8. Admittedly, this case is of circumstantial evidence. Prosecution ought to have produced a strong case based on irrebuttable line of evidence. The improvements made by prosecution witnesses especially complainant himself with poor and doubtful investigation leads the case nowhere but towards acquittal. So many motives had been attributed to four different sets of accused without mentioning link between the accused and the deceased. The entire story of the prosecution seems to be concocted and fabricated and result of manipulation and deliberations. The occurrence is of night between 4/5-6-2002 at unknown time, whereas the report was lodged on 5-6-2002 at 2.15 P.M. Complainant had neither the knowledge of the accused nor the time when the occurrence had taken place. On 8-6-2002, complainant and Mst. Rifat Bano, widow of the deceased had given statements to the police, wherein they charged accused Javed, Shah Faisal, Waris Khan and Khan Gul for the commission of the offence. On the same day i.e. 8-6-2002, their statements were recorded under section 164, Cr.P.C. In their statements, both Amin Jan and Mst. Rifat Bano had not mentioned the source of information, received by them. On 4-11-2002, after about four months and twenty days of the occurrence, complainant Amin Jan and his father Hidayatullah in their supplementary statements recorded under section 161, Cr.P.C. charged Mst. Rifat Bano and Fazal Akbar in addition to others for the commission of offence.

9. The presence of a torn lady shirt on the spot shown at point No.3 in the site-plan Exh.PB, raises a number of questions. It has been reported that this shirt belonged to the sister of the deceased, who could not control her sentiments on seeing the dead-body of her brother and torn her shirt. The entire investigation and in the evidence, the lame of the sister of the deceased has not been mentioned. Neither she was examined nor was produced to the Investigating Officer. This aspect of the matter has remained unresolved.

10. It is sell-settled that in a case of circumstantial evidence prosecution must produce series of circumstances which interlink with each other forming a complete chain which touches the dead-body and the neck of the accused. Sarfaraz Khan v. The State (1996 SCMR 188).

11. The learned trial Judge in his detailed and well-reasoned judgment has attended to the every aspect of the case, leaving no room for further examination. Cogent and valid reasons have been advanced for passing a finding of acquittal in favour of the accused-respondents, which are not open to legitimate exception. The impugned judgment is maintained and upheld. The appeal is dismissed in limine along with Criminal Miscellaneous. No.201 of 2006. H.B.T./10/P Appeal dismissed.