1999 PLP 1208 (MLD)

3. Muhammad Ahmad Gondal S.I./S.H.O. (P.W.14) left Muhammad Javed accused under the supervision of Moharrir and made for the place of occurrence. He prepared its rough site plan Exh.P-J. He found the dead body of Muhammad Saleem lying over there. He prepared statement of injuries Exh.P-I/3 and inquest report Exh.P-I/2. He despatched the dead body through Javed Iqbal Head Constable (P.W.9) for post-mortem examination, secured blood through cotton swab and made a sealed parcel of the same vide memo. Exh.PE attested by Muhammad Zaman (P.W.6). He secured cycle P-4 vide memo. Exh.PC, attested by Muhammad Asghar (P.W.3), secured cot. P-5, string of Shalwar P-6, rope P-7 and clothes of the deceased P-8/1-6 vide memo. Exh. P-F attested by Muhammad Ilyas P.W.7. On 16-6-1992, Javed Iqbal Head-constable produced the last worn clothes of the deceased P-9/1 to 12 which he secured vide memo. Exh.PK. On the same day the accused Muhammad Javed led to the recovery of two empty bottles of Tops P-2/1-2 and a Kassi P-3 which were secured vide memo Exh.P-B attested by Muhammad Akhtar (P.W.2). He also prepared site plan of place of recovery Exh.P-L. On 23-6-1992 he directed the draftsman Akhtar Naqqash (P.W.12) to prepare the site plan of the place of occurrence who delivered the site plans Exhs.P-H and P-H/1 on 2-7-1992. On 28-6-1992 the accused Muhammad Javed led to the recovery of a Churri P-1 which was made into a sealed parcel vide memo. Exh.PA attested by Muhammad Saleem (P.W.1). He also prepared rough site plan of the place of recovery Exh.P-N. As the accused could not produce any valid licence of Chhuri P-1, so he lodged a complaint against him under section 13 of the Arms Ordinance 1965. On 30-6-1992 the accused Muhammad Javed led to the recovery of Rs.7,000 consisting of two currency notes of Rs.1,000 each and 10 notes of Rs.500 Exh.P-13/1-2 which he secured vide memo. Exh.PD attested by Shabbir Hussain (P.W.5) and Muhammad Sadiq A.S.I. (P.W.17). He also prepared a memo of place of recovery Exh.P-D/l. On 9-8-1992, accused Ghulam Abbas appeared before him and produced his service record Exh.P-14 which was secured vide memo Exh.P-N attested by Muhammad Hanif Head-constable (P.W.16). On 26-1-1993, complete challan was submitted by P.W.15 Rana Muhammad Sarwar S. I. /S. H. O.

4. A charge under section 302/34, P.P.C. was framed against both accused Muhammad Javed and Ghulam Abbas, to which they pleaded not guilty and claimed to be tried.

5. To establish its case prosecution examined P. W.1 Muhammad Saleem who identified the dead body at the time of post-mortem and attested memo. Exh.P-A, pertaining to the recovery of Chhuri P-1, at the instance of accused. P.W.2 Muhammad Akhtar and P.W.3 Muhammad Asghar are attesting witnesses of memos. Exh.P-B and Exh.P.C. pertaining to recovery of empty bottles of Tops Exh.P-2/1-2 and Cylcle P-4 respectively. P.W.4 Muhammad Tufail Constable transmitted parcels of blood-stained cotton and that of Chhuri to the office of Chemical Examiner, whereas P.W.5 Shabbir Hussain Head-constable attested memo. of recovery of Rs.7,000 Exh.PD. P.W.6 Muhammad Azam and P.W.8 Muhammad Ilyas are attesting witnesses of Memo Exh.PE of blood-stained swab and blood-stained cot etc. Exhs.P-5 to P-8/1-6 vide memo Exh.P-F. P.W.8 Dr. Shakil Ahmad conducted post-mortem of Muhammad Saleem and found four incised wounds on his person, caused by sharp-edge weapon. In his opinion death had been caused due to injuries Nos. l to 4 collectively resulting in haemorrhage, shock and cardio respiratory failure which was sufficient to cause death in the ordinary course of nature. He issued P/M Exh.P-1 and signed inquest report Exh.P-1/2. P.W.9 Javed Iqbal H/C escorted the dead body to hospital for post-mortem purposes and later on delivered his last worn clothes P-9-12 to the Investigating Officer P.W.10 Muhammad Ahmad is the complainant and P.W.11 Amanat Ali is eye-witness and both of them supported the prosecution version. P.W.12 Akhtar Naqsh draftsman prepared site plan Exh.P-H and P-H/1. P.W.13 Sanaullah M.H.C. deposed about receipt of different parcels and its onward delivery to Muhammad Tufail Constable (P.W.4). P.W.14 Masood Ahmad Gondal S.I./S.H.O. is the main Investigating Officer, whose evidence has been discussed above. P.W.15 Rana Muhammad Sarwar S.I./S.H.O. submitted challan whereas P.W.16 Muhammad Hanif H.C. and P.W.17 Muhammad Sadiq A.S.I. attested memos. P-N and P-A respectively. Thereafter the learned D.A. closed prosecution ease after producing reports of Chemical Examiner Exhs.P-O, P-Q and P-R and of Serologist Exhs.P.S and P-T.

6. When examined under section 342, Cr.P.C. the accused Muhammad Javed admitted that he used to work in the factory of Amanat Ali and stated that Ghulam Abbas has not been working with him. He further controverted the prosecution version and stated that he never got recovered any amount as well as other articles. He stated that dead body was recovered from the house of Amanat Ali (P.W.11) who, in order to save his skin, got him involved in this case. He neither produced any defence evidence nor chose to record his statement under section 340(2), Cr.P.C. The accused Ghulam Abbas also denied the prosecution version and stated that he was declared innocent by the Police and had been involved in this case falsely.

7. After going through evidence adduced by the prosecution, the trial Court acquitted Ghulam Abbas accused, but convicted the accused Muhammad Saleem vide judgment under appeal.

8. Arguments have been heard and record perused.

9. It is contended by the learned counsel for the accused/appellant that the only evidence implicating the accused/appellant for the murder of deceased Muhammad Saleem is that of extra-judicial confession made in the presence of Muhammad Ahmad complainant (P.W.10), Amanat Ali (P.W.11), Muhammad Hussain and Karamat Hussain (given up P.Ws.), recovery of dead body from the house of Amanat Ali (P.W.11), alleged to have been acquired on rent by the accused/appellant and of recovery of Rs.7,000 lying near the dead body. That so far as extra-judicial confession is concerned, it is not corroborated by any independent witness, as Muhammad Ahmad complainant (P. W.10) is father of the deceased, whereas Amanat Ali (P.W.11) is the person from whose house dead body was recovered. Thus, both P. Ws. are interested and inimical towards the accused/appellant. The only independent and uninterested witnesses Muhammad Hussain and Karamat Hussain were given up. Accordingly, no credence can be attached to so-called extra judicial confusion. He further canvassed that as per prosecution contention, the accused made extra judicial confession on 15-6-1992, then why his confession was not got recorded in accordance with law. This lapse on the part of Investigating Agency makes the story of extra-judicial confession highly doubtful. He next argued that prosecution has also tried to connect the accused/appellant with the murder of deceased on the ground that he led to the recovery of dead body from a house alleged to have been taken on rent from Amanat Ali (P.W.11). His stand is that prosecution has failed to prove that the alleged house was ever rented out to the accused. As per admission of P.W.11, the property stands in his (P.W.11) name in the record of Excise and Taxation Department. That no rent deed was ever executed between Amanat Ali (P.WA1) and the accused, as no such rent deed has been brought on record. Again if the house had been rented out to the accused, what was the necessity of breaking the lock, as alleged by prosecution, though this contention is also not proved, as no lock was also secured at that time. That non-recovery of lock also suggests that premises (house) was lying open at that time, as such recovery of dead body as well as that of recovery of Rs.7,000 is of no legal consequence, which is alleged to have been made at the instance of accused on 30-6-1992, when he is said to have already led to the recovery of Chhuri P-1 on 28-6-1992. He posed a question, at to what was the logic for keeping the sum of Rs.7,000 over there, when the deceased was murdered for the sake of money. He submitted that since the dead body had been recovered from the premises owned by Amanat Ali (P.W.11), so he got the accused/appellant as well as Ghulam Abbas accused (since acquitted) involved in this case to save his own skin. That prosecution has failed to establish its case against the accused/appellant beyond reasonable doubt, as such appeal may be accepted.

10. Conversely the judgment under appeal has been supported by the learned counsel for the State.

11. I have given my anxious considerations to the arguments addressed at the Bar and have gone through the evidence brought on record. Prosecution has tried to connect the accused/appellant with the commission of this offence on the basis of so-called extra judicial confession leading to the recovery of dead body from the premises owned by Amanat Ali (P.W.11) and rented out to the accused/appellant. Alleged confession is stated to have been made in presence of Muhammad Ahmad complainant (P.W.10), Amanat Ali (P.W.11), Muhammad Hussain and Karamat Hussain (given up P. Ws.). Prosecution has examined P.W.10 and P.W.11 only and their evidence, unless corroborated by any independent evidence, can't be believed, as P.W.10 and P.W.11 are interested witnesses being father of deceased and being owner of the premises out of which dead body of Muhammad Saleem deceased was recovered. The only independent and uninterested witnesses have been given up, as such, no reliance can be placed on such extra judicial confession, which has, been held to be the weakest type of evidence by the pronouncement of Superior Courts.

12. Prosecution has also tried to involve the accused on the ground that disputed premises was rented out to him. Admittedly no rent deed was ever executed between Amanat Ali (P.W.11) and Muhammad Javed accused/appellant regarding this premises which still exists in the name of Amanat Ali in the relevant record of Town Committee. In absence of any documentary evidence to prove that said premises was rented, out to the accused, it can't be held that the same was taken on rent by the accused/appellant. It appears that as the dead body was recovered from the premises owned by Amanat Ali (P.W.11), so he with the connivance of complainant got the accused involved showing them to be his (P.W.11) tenant over said property. It is, thus held that prosecution has miserably failed to prove that premises were rented out to the accused/appellant.

13. Prosecution has also tried to, connect the accused/appellant with the crime by adducing evidence regarding recovery of two empty bottles of Tops Exh.P-2/1-2, a Kassi P-3 at the instance of accused on 19-6-1992, as well as recovery of Chhuri P-1 on 28-6-1992 and of recovery of Rs.7,000 on 30-6-1992. According to prosecution own stand the accused/appellant made extra judicial confession on 15-6-1992 that he with the assistance of other murdered the deceased, and led the police to the place of occurrence and led to the recovery of dead body. The question arises, what make the Investigating Officer not to recover that two empty bottles of Tops Juice P-2/1-2, a Kassi P-3, on 15-6-1992 and why this recovery was made on 19-6-1992. Accordingly, the recovery of Chhuri P-1 was made on 28-6-1992 and that of Rs.7;000 on 30-6-1992. It is very strange that accused is said to have committed murder for the sake of money, but allowed the said amount lying in that very premises till 30-6-1992. This aspect of the prosecution evidence does not appeal to reason and is brushed aside.

14. The irresistible conclusion which emerges as a result of scanning, analysing and dissecting the Prosecution evidence, is that prosecution has failed to prove its case beyond reasonable doubt. Accordingly, appeal is accepted, judgment under appeal is set aside and accused/appellant is hereby acquitted. He is ordered to be released forthwith, if not required in any other case.

15. Since the appeal has been accepted so the Criminal Revision No. 194 of 1994 has become infrucrtuous and is dismissed. N.H.Q./M-735/L Appeal accepted.