1989 PLP 2912 (MLD)

(3) Extensive post-mortem tears on whole right upper limb, right shoulder and adjacent part of chest and neck whole skin was lost. Most of the muscles were lost and underneath bones were visible. Death according to his opinion, had occurred due to shock and haemorrhage resulting from injury No.1 which was opined to have been caused by a fire-arm. Injury No.2 was opined to have resulted from a blunt weapon. The time between injury and death was opined to be 15 to 30 minutes while the time between death and post-mortem was opined to be 24 to 36 hours. During cross-examination, he stated that injury No.3 could have resulted due to dog bites after death.

7. Karam Elahi complainant (P.W.6) and Muhammad Sharif P.W.7 who were produced to prove the facts mentioned in the F.I.R. about the arrest of the accused at the spot and the confession said to have been made by them, did not support the prosecution case. Both of them denied that the accused were arrested from the spot or that they had seen them there. They also denied that any confession was made by any of the two accused, including the appellant, before them. Karam Elahi P.W. admitted his thumb-impressions on Exh.P.B. but stated that the same had not been read over to him. On confrontation, with the same, he denied that those (facts) were recorded on his statement.

8. Muhammad Sharif P.W. admitted his thumb-impression on the memos. pertaining to the articles taken into possession from the spot, including the carbine and the empty alleged to have been taken into possession from the appellant, but explained that his signatures had been obtained on blank papers by the police.

9. Shahid Hussain husband of the deceased who was examined as P.W.10 in support of the allegation that he had lodged the F.I.R. against Zafar Iqbal (appellant) for having abducted his wife, did not support the prosecution case, although he admitted that he had lodged an F.I.R. about the abduction of his wife by one Zafar Iqbal but he denied that the accused under trial was the said Zafar Iqbal.

10. Abdul Qayyum father of the deceased who appeared as P.W.11, did not say anything against the accused. He denied the knowledge that the deceased (his daughter) had been abducted. Both of them, i.e. P.W.10 and P.W.11 admitted of having identified the dead body to be that of Mst. Shakila, and of having signed Exh.P.O. (Fard Shanakhat) on 17-9-1985.

11. Muhammad Sharif, M.H.C. who had recorded formal F.I.R. Exh.P.B./11 appeared as P.W.2. He stated that the parcel of blood-stained earth was deposited with him on 15-9-1985 while the parcel pertaining to sickle was deposited with him on 17-9-1985. According to him the two parcels, pertaining to carbine and the empty cartridge were deposited with him on 19-9-1985. He further stated that the parcels pertaining to blood-stained earth and sickle were despatched by him to the` office of the Chemical Examiner on 22-10-1985 while the parcels pertaining to crime empty and carbine were sent by him to the office of the Chemical Examiner on 1-11-1985. During cross-examination he stated that Amir Abdullah A.S.I. had not stayed at the spot on 15-9-1985 and had returned to the police station on 15th, 16th and 17th September, 1985, also.

12. Muhammad Wazir, S.I. who appeared as P.W.8, stated that while on patrol duty on 15-9-1985 in a jeep he had met Amir Abdullah, A.S.I. accompanied by three constables at the bank of Gogera Branch canal and they had all seen two persons being chased by three persons. He stated that they got down from the jeep and caught Zafar Iqbal and Muhammad Akhtar with the help of those three. He also deposed about the taking into possession of two live cartridges and carbine containing an empty from Zafar Iqbal (appellant), and a bundle of clothes from Muhammad Akhtar. He also stated that they saw a dead body of a lady lying nearby clad in Burqa. Although he stated that her name was disclosed by the accused to be Mst. Shakila but he did not say anything about the accused having made any statement before P.Ws. Karam Elahi and his companions. During cross-examination he denied the suggestion that the accused were not arrested from the spot and were in fact arrested from a hotel at bus-stand.

13. Khalid Mahmud who had been entrusted the dead body of Mst. Shakila for post-mortem examination appeared as P.W.9. He stated that the dead body had been entrusted to him at night on 15-9-1985 and he had taken the same to Toba Tek Singh mourtuary. He explained that he had started from the spot to the mortuary at 12-00 noon after arranging a tractor-trolley, the tyre of which got punctured on way and so he reached in the evening. He denied that the dead body was not entrusted to him from .the spot.

14. Akhtar Ali, S.I. in whose presence Shahid Hussain husband of the deceased, Abdul Qayum father of the deceased and one Muhammad Yasin had identified the dead body, appeared as P.W.13. He stated the said fact and also stated of having prepared Exh.P.O. (Fard Shanakhat) in that regard. The Fard Shanakhat is dated 17-9-1985.

15. Sher Bahadur Constable who was accompanying Amir Abdullah, A.S.I. on the night of occurrence, while on patrol, appeared as P.W.15. He stated that they had seen three persons chasing two persons and that they had joined the persons chasing two persons. He stated that the two persons caught were Zafar Iqbal and Muhammad Akhtar accused and the three persons who were chasing were Karam Elahi, Muhammad Sharif and Azizur-Rehman. He also stated that they had seen dead body of a woman lying nearby with a rope around her neck. He further stated about Zafar 1qbal carrying a carbine and Muhammad Akhtar carrying a bundle. He denied the suggestion that the accused had not been taken into custody from the place of occurrence.

16. Amir Abdullah A.S.I. who had recorded statement Exh.P.B. and had helped Karam Elahi etc. in catching the accused, appeared as P.W.16. He stated about the recoveries effected by him from the spot and about the dead body having been sent by him for post-mortem examination after preparation of necessary papers. He also denied that the accused were not taken into custody from the bank of canal.

17. I have gone through the evidence with the assistance of learned counsel for the appellant and have considered the points raised by learned counsel for the parties. There is no ocular account in this case. The two witnesses including the complainant (P.W.6) and P.W.7 did not support the prosecution case about the extra-judicial confession said to have been made by the appellant or the acquitted accused before them. In fact they denied the factum of arrest of the accused from the spot. They rather stated that on having seen a dead body lying at the spot, they had informed the police, whereafter the police started investigation.

18. Learned trial Judge after examining the prosecution evidence had come to the conclusion that the prosecution story of the two accused having been arrested from the bank of canal during patrol duty and the recoveries effected from them, was not the correct position. I have gone through the reasons given by him in this regard and I do not find anything to differ with the same. Learned trial Judge appears to have come to that conclusion on the basis of sufficient facts.

19. It is worth mentioning here that the deposition made by Muhammad Sharif, Moharrir Head Constable P.W.2 about the parcels of pistol and crime empty, having been deposited with him on 19-9-1985, i.e. 4 days after the first parcel was deposited on 15-9-1985 in. spite of the fact that the A.S.I. had been coming to the police station, in itself is enough ground to consider that the story of arrest of the appellant from the spot and the recoveries effected from him that day, was highly doubtful. The prosecution version in this regard also appears to be shrouded in mystery for the reason that the post-mortem was done on the third day after the dead body was found and also particularly for the reason that memo. Exh.P.O. regarding identification of the dead body by husband and father of the deceased was prepared at the police station on 17-9-1985, i.e. third day of the occurrence.

20. There is no evidence on record to connect the appellant with the deceased even prior to her murder. The efforts made in this regard to prove that a case of abduction was registered against him because of illicit intimacy that he had developed with the deceased and because of his having abducted her, also failed when the husband of the deceased who had lodged the F.I.R. about her abduction, appeared at the trial and denied that the accused named by him in that F.I.R. was the one who was being tried in this case.

21. Injury No. 3 noted on the body of the deceased during post-mortem, possibility of which having occurred due to dog bites after death, further casts heavy shadows of doubt about the manner in which she might have died. That fact, rather gives a clue to the idea that dead body of the deceased was thrown at' the canal after being shot dead and it was during the period of the dead body lying there in stranded condition that the dogs might have bitten that. The judgment of the trial Judge that it was the appellant who had committed the murder, is based on surmises and conjectures. Conjectures and surmises however strong they may be, can never form the basis of conviction. The prosecution has failed to prove the case against the appellant. This appeal is, therefore, allowed and the appellant is acquitted. He is already on bail. The surties stand discharged. N.H.Q./Z-99/L Appeal accepted.