1998 PLP 1371 (SCMR)

MUNIR A. SHEIKH, J.

Through this petition, leave to appeal has been sought against the judgment of the Federal Shariat Court dated 6-6-1994 by which the appeal filed by the respondents against the judgment dated 8-2-1994 of the trial Court through which they were convicted under section 302(b). P.P.C. and section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392, P.P.C. for committing Haraba for extorting a sum of Rs.18,000 from the pocket of the deceased alongwith other articles and sentenced to death and seven years R.I. plus a fine of Rs.10,000 each respectively, was accepted and they were acquitted of the charges.

2. The facts of the case briefly stated are that the petitioner who is the father of the deceased Ashfaq Ahmad made a report to the police on 25-12-1992 that his said deceased son had disappeared. He kept on'search of his son when on 31-12-1992, he alongwith Malik Masood Ahmad and Imran found his dead body lying in the bushes of reeds across the railway-crossing in Chak No.38 N.B. He was strangulated to death with the aid of nylon string which was still lying around his neck. Leaving the said two witnesses around the dead body, the complainant left for police station, Sargodha to make a report when on the way, Ahmad Khan, A.S.I, a witness met him who recorded his statement in which the petitioner held responsible respondent No. 1, Ibrarul Haq son of Muhammad Yar and Raja Muhammad Arshad Ahmad son of not known for the murder of his son on which F.I.R. was registered and the case investigated. Later on, on the same day, the petitioner made supplementary statement in which he also involved respondent No.2, Sajid Kamran son of Muhammad Nazeer in the murder of his son. After investigation of the case, the respondents were sent up for trial The trial Court after considering the prosecution evidence convicted and sentenced the respondents as stated above, mainly on the basis of extra-judicial confessions allegedly made by them, the last seen evidence and the recoveries. The appeal filed by them was accepted by the Federal Shariat Court through judgment dated 6-6-1994 and they were acquitted of the charges.

4. Learned counsel for the petitioner has taken us through the prosecution evidence in order to demonstrate that the findings of the trial Court as to the guilt of the respondents were based on evidence and cogent reasons which have been set aside by the Federal Shariat Court by taking incorrect view of the evidence of extra judicial confessions. the recoveries and the last seen evidence.

5. We have undertaken scrutiny of evidence with the assistance of. the learned counsel for the patties. Dr. Muhammad Iftikhar (P.W-1) conducted autopsy on the dead body of deceased Ashfaq Ahmad on 1-1-1993. He opined that the death of the deceased was due to strangulation leading to asphyxia and death. P.W.2 is Khalid Javed, Constable. According to his evidence, on 31-12-1992, he escorted the dead body of deceased Ashfaq Ahmad to mortuary and delivered it to the doctor for post-mortem examination. Dilbar Hussain (P.W:3) recorded the formal F.I.R. under section 154, Cr.P.C. in the relevant book. Nasrullah Khan, Patwari (P.W-4) is also a formal witness who prepared the site plan. P.W-5, Malik Muhammad Maqbool is witness of recoveries according to whom, on 9-2-1993, respondent No.1 while in police custody led to the recovery of Rs.9000 wrapped in handkerchief, a golden ring and identity card of deceased Ashfaq Ahmad. In his presence, on the same day, respondent No.2 Sajid Kamran while in police custody also led to the recovery of Rs.9,000 and a wrist watch. It may be mentioned here that according to the petitioner, his deceased son was carrying with him an amount of Rs.18,000 on the day of occurrence and his' case was that the respondents/accused persons murdered his son in order to snatch the said amount of Rs.1,8000 from him. Haji Muhammad Zahoor (P.W.6) is a witness who according to the prosecution identified the articles of the deceased. Muhammad Ramzan (P.W.7) is a witness of last seen according to whom on 22-12-1992 at about 8-30 p.m, he and Ghulam Hussain saw the deceased Ashfaq Ahmad with the respondents Ibrarul Haq and Sajid Kamran on bicycles. Javed Iqbal (P.W-8) is the witness of extra-judicial confession according to whom the respondent Sajid Kamran contacted Haji Khalil in his presence and made extra-judicial confession before him. He alongwith Haji Khalil took him to the A.S.I. before whom he was produced. Maqbool Hussain (P.W.9) is the witness of extra judicial confession of Ibrarul Haq, respondent according to whom when he was accompanied by one Qaisar Mehmood, lbrarul Haq made extra-judicial confession and they produced him before the police. Malik Masood Ahmad (P.W.10) is a witness who on 25-12-1992 presented application of Qazi Mushtaq Ahmad before the police. Dilawar Hussain (P.W.11) recorded the complaint of the petitioner in daily diary op 25-12-1992. Petitioner himself appeared as P.W.12 and supported his case as made out in the F.I.R. and supplementary statement. P.W.13, Ahmad Khan is the Investigating Officer.

6. As regards last seen evidence, according to statement of Muhammad Ramzan (P.W.7), he was also accompanied by one Ghulam Hussain at that time. Record shows that Ghulam Hussain was given up as unnecessary witness, therefore, we are left with only the evidence of Muhammad Ramzan on this point. It is in the evidence that this Muhammad Ramzan was already known to the petitioner and his family. He disappeared from the seen and returned after lapse of considerable period. There is no cogent explanation for a person known to the petitioner who was searching his missing son to inform him that he saw his son in the company of Ibrarul Haq on 22,-12-1992. Non-production of Haii Khalil as regards extra-judicial confession of Sajid Kamran, accused respondent is very significant for Javaid Iqbal (P.W.8) was the first cousin of deceased Ashfaq Ahmad, therefore, it was rightly held by the Federal Shariat Court that it could not be believed that an accused person would make confession before such a person. Haji Khalil who was not related to the deceased was kept away. Likewise, as regards extra-judicial confession of Ibrarul Haq allegedly made in presence of Maqbool Hussain (P.W.9) and Qaiser Mehmood it also became doubtful. for only Maqbool Hussain was produced who was also related to the deceased and not Qaiser Mehmood. His evidence was also rightly seen from this angle by the Federal Shariat Court and was not accepted as trustworthy for conviction. Learned counsel-for the petitioner has not been able to satisfy us as to why the other two witnesses regarding extra judicial confession who could in the facts and circumstances of this case be treated as independent witnesses were not produced and only the relatives of the deceased were examined .

7. Coming to the recoveries. we find ourselves fully in agreement with the Federal Shariat Court that the same could not be given any credence. According to the petitioner, the deceased was carrying with him an amount of Rs.1.8000. The recoveries were made after about 7/8 days of the arrest of the accused persons and from each accused person, Rs.9,000 were shown to have been recovered which is sufficient to raise inferences that it was a fake recovery and the total amount was intentionally shown to have been shared equally by the two accused persons. It is also not believable that the accused persons would retain the money for so many days after grabbing the same from the deceased. '

8. The Federal Shariat Court also took note of the fact that as regards other articles with the deceased, nothing was mentioned by the petitioner either in the original report or in the F.I.R. The recovery of other articles such like wrist watch, golden ring and, Identity card was rightly held to have been planted to create evidence.

9. Learned counsel for the petitioner made a great deal of stress on his contention that evidence of Muhammad Ramzan of last seen having been given credence and accepted by the trial Court and since conviction could be based on his evidence, therefore, interference by the Federal Shariat Court should not have been rightly made.

10. The Federal Shariat Court has given cogent reasons for not accepting the evidence of Muhammad Ramzan. It has already been observed that he was known to the family of the deceased but did not for a considerable period appeared on the scene and informed the petitioner that he saw the deceased with the accused persons. The other witness namely Ghulam Hussain who was with Muhammad Ramzan was given up as unnecessary. In our view, non-production of the said witness has material impact on the case of the prosecution as regards last seen evidence. There is no reason as to why the said witness was not produced.

11. The inferences drawn by the Federal Shariat Court from the prosecution evidence as regards confessions, recoveries and last seen evidence are based on correct appraisal of evidence and cannot be held to be illegal or perverse. Learned counsel for the petitioner has failed to point out any misreading or non- reading of material pieces of evidence. The view taken by the Federal Shariat Court could be taken from the established facts, therefore, we are not disposed to interfere in the same in particular when no evidence has either been ignored or misread.

12. For the foregoing reasons, this petition has no merits which is accordingly dismissed and leave refused. N.H.Q./M-122/S Leave refused.