2023 PLP 79 (YLRN)

MUHAMMAD WAHEED KHAN, J.

Appellants Sajid alias Sajju and Muhammad Rafique have challenged their convictions and sentences awarded to them by the learned Addl. Sessions Judge, Sahiwal vide judgment dated 04.05.2011 in case FIR No.192/2008 registered under sections 302/364/201/34, P.P.C. at Police Station Harappa, District Sahiwal, whereby they were convicted and sentenced as under;- i) Under section 302 (b), P.P.C. awarded life imprisonment each with compensation of Rs.2,00,000/- each in terms of section 544-A, Cr.P.C. to be paid to the legal heirs of deceased Muhammad Faheem, recoverable as arrears of land Revenue, in default thereof, to further undergo six months' simple imprisonment each. (ii) Under section 364, P.P.C. awarded rigorous imprisonment for ten years each and fine of Rs.50,000/-, each in default thereof, to further undergo six months' simple imprisonment each. Both sentences were ordered to be run concurrently and benefit under section 382-B, Cr.P.C. was also extended to them. Whereas, co-accused Falak Sher was acquitted of the charge vide the same judgment by the learned trial Court.

2. Succinctly, facts of the prosecution case are that on 12.09.2007 at about 1:00 p.m. (noon) Sajid alias Sajju (appellant), Falak Sher (since acquitted) and Muhammad Rafique (appellant) along with one unknown person came at the house of the complainant Nizam Din (PW-1), when Younis and Saeed Ahmad PWs were present in the Bethak. Sajid alias Sajju who was friend of his son Muhammad Faheem (deceased) aged 21/22 years, called him for accompanying a piece of work at Lahore, therefore, they took his son Muhammad Faheem along with them. When Muhammad Faheem did not contact about 6/7 days, the complainant contacted father of Sajid and inquired about his son Muhammad Faheem but he failed to reply satisfactorily. The complainant suspected that the accused persons along with an unknown accused abducted his son with intention to kill him. The motive as stated by the complainant was that a quarrel had taken place between Muhammad Rafique son of Muhammad Ramzan and his son Muhammad Faheem wherein Muhammad Rafique received injuries but the matter was patched up through a Punchait but Muhammad Rafique had kept grudge in his mind, due to which, the accused persons abducted his son with intention to murder him, hence, this case. On conclusion of the investigation, report under section 173, Cr.P.C. was submitted before the learned trial Court while declaring the appellants as guilty. Thereafter, formal charge was framed against them, to which they pleaded not guilty and claimed trial. The prosecution in order prove its case produced as many as nine witnesses and after producing certain documents closed its evidence. Nizam Din complainant of the case appeared as (PW-1), Younas Ali eye-witness appeared as (PW-2), Rana Muhammad Latif and Talib Hussain witnesses of extra judicial confession appeared as (PW-4 and PW-5 respectively), Taj Muhammad eye-witness of the occurrence appeared as (PW-6), Muhammad Siddique SI and Ghulam Mustafa SI Investigating Officers of the case appeared as (PW-8 and PW-9 respectively). Thereafter, the prosecution after producing certain documents closed its evidence. After completion of prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C., in which they denied all the allegations levelled against them by the prosecution. They neither opted to appear as their own witnesses under section 340(2), Cr.P.C., nor produced any evidence in their defence. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt, which resulted into convictions and sentences of the appellants in the afore stated terms.

3. In support of the instant appeal, learned counsel for the appellants contends that the impugned judgment whereby, the appellants were convicted and sentenced is based on misreading and non-reading of evidence as the prosecution has miserably failed to adduce credible evidence, therefore, the impugned judgment could not be maintained; that case of the prosecution mainly hinges upon circumstantial evidence as the alleged eye-witness firstly made his statement after about nine months of the occurrence; that even the factum of homicidal death of Muhammad Faheem has not been proved as his dead body was not recovered till date; that the recoveries of pistols are rendered to be inconsequential as there were no matching reports of the same and the prosecution failed to prove the motive part of the incident. So under the circumstances, convictions and sentences of the appellants awarded to them by the learned trial Court cannot be allowed to maintain, hence, by accepting the instant appeal, the appellants may be acquitted of the charge.

4. On the other hand, learned Deputy Prosecutor General has vigorously opposed the arguments advanced by learned counsel for the appellants and faithfully defended the impugned judgment and prayed for dismissal of the instant appeal.

5. I have heard learned counsel for the appellants, learned Deputy Prosecutor General and perused the record and noticed that Muhammad Faheem son of the complainant went missing from his home on 12.09.2007 at 01:00 p.m., whereas the said incident was firstly reported to the police with a delay of about eight months on 01.05.2008. According to the prosecution story as set forth in the complaint (Ex-PA) on the basis of which, formal FIR has been lodged, was that accused persons/ appellants Sajid alias Sajju and Muhammad Rafique along with co-accused Falak Sher (since acquitted) along with an unknown person came in the house of the complainant at 1:00 p.m. on 12.09.2007, called Muhammad Faheem and took him along Complainant Nizam Din (PW-1), on failure to trace out his son, filed an application (Ex-PA) to the police for registration of case on 01.05.2008 and on going through the same, it is noticed that such a noticeable delay has not been plausibly explained by him. Apart from the complainant, the prosecution has adduced another witness Younas Ali (PW-2), who also deposed that he was available in the house of the complainant, when Muhammad Faheem deceased departed with the appellants and other co-accused. This witness (PW-2) has also admitted during the course of cross-examination that he had made statement to the police first time after about seven and half months since the departure of the deceased from house of the complainant. This witness also admitted that during the interregnum, he had not made any effort to search the deceased and the dead body of Muhammad Faheem deceased has not been recovered so far. He also deposed about the factum of recoveries of pistols from both the accused persons.

6. The next piece of evidence relied upon by the prosecution is extra judicial confession. Two prosecution witnesses, namely, Rana Muhammad Latif (PW-4) and Talib Hussain (PW-5) deposed in this regard by stating that on 20.05.2008, at evening time in the house of PW-4, the appellants (Sajid alias Sajju and Muhammad Rafique) approached them and confessed their guilt by stating that they had murdered Muhammad Faheem and then his dead body had been thrown in SOHAG CANAL and also begged pardon. On going through the testimony of Rana Muhammad Latif (PW-4), I have noticed that this witness had never got his statement recorded in terms of section 161, Cr.P.C. before the police in this regard. While answering to a question put to him during the course of cross-examination, he stated as under;-- "I did not make any statement before the police regarding this occurrence. I have made statement for the first time regarding this occurrence on 17.04.2010 in the Court." The other witness, namely, Talib Hussain (PW-5) had admitted during the course of cross-examination that both the appellants/accused persons had jointly confessed their guilt. He deposed as under;- "I had mentioned in my statement Ex-DA that Sajid and Rafique accused jointly disclosed that they committed blunder and they be get pardoned from Nizam Din (sic)" Meaning thereby that this piece of evidence (extra judicial confession) hardly advanced the case of the prosecution as observed above one of the witnesses Rana Muhammad Latif (PW-4) had never recorded his statements under section 161, Cr.P.C., whereas second witness Talib Hussain (PW-5) admitted that both the appellants had jointly confessed their guilt. Reliance in this regard is placed on the judgments passed by the august Supreme Court of Pakistan in cases of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), "Sarfraz Khan v. State and 2 others" (1996 SCMR 188) and "Imran alias Dully and another v. The State and others" (2015 SCMR 155).

7. At the first impression, I feel that the prosecution case is based on circumstantial evidence but when the fact and evidence of the prosecution have been perused in detail, it is noticed that the prosecution has adduced one Taj Muhammad as PW-6, who claimed that about two and half years back at about Maghrib Wela, he and Khadim Hussain (PW not produced) were coming from Mouza Lali and when reached near canal bridge, they saw 4/5 persons, namely, Rafique, Falak Sher, Sajid and one Faheem present there. Rafique accused fired with his carbine which hit on the leg of Faheem, Sajid accused fired with his carbine which hit on front chest of Muhammad Faheem deceased, who fell down and succumbed to the injuries at the spot. The witnesses tried to rescue the deceased but accused persons threatened them of dire consequences. The accused persons had thrown the dead body of the deceased in the canal. Record further reflects that in fact these PWs i.e. Taj Muhammad (PW-6) and Khadim Hussain (not produced) did not disclose the occurrence, to any one including the complainant of the case and remained silent till 11.6.2008 for about nine months. On going through their statements recorded under section 161, Cr.P.C. to the police, it is noticed that they claimed to be eye-witnesses of the incident but admittedly, they did not nominate any accused in their statements and PW-6 named the appellant and other co-accused first time before the learned trial Court while recording his evidence and admittedly the accused persons were never put to test identification parade. Out of these two witnesses, the prosecution had only produced Taj Muhammad (PW-6), whereas other eye-witness Khadim Hussain was given up being unnecessary. On going through the testimony of Taj Muhammad (PW-6), I have noticed that this witness has claimed that Muhammad Faheem deceased and the complainant were previously known to him but despite this fact, he did not disclose the incident for about nine months. While replying to these queries during the course of cross-examination, he deposed as under;- "We remained mum for about 8/9 months after the occurrence and we did not disclose about the occurrence to any one for about nine months till 11.06.2008. I did not visit Jail in order to identify the accused in any identification parade. No identification parade was held in this case. The accused persons were not previously known to me." The said witness further deposed as under;-- "The police after arresting the accused persons had shown to me and thereafter directed me to make statement against them."

8. So, I feel that the testimony of this self-proclaimed eye-witness is inherently flawed and no implicit reliance can be placed on him and as discussed above, the circumstantial evidence in shape of last seen evidence provided by Nizam Din (PW-1) and Younas Ali (PW-2) and evidence of extra judicial confession adduced by Rana Muhammad Latif (PW-4) and Talib Hussain (PW-5) being very week type of evidence is also not worthy of credit.

9. As far as the evidence of recoveries of weapons of offence from the appellants are concerned, case of the prosecution is that during the course of investigation, both the appellants got recovered pistols but according to the eye-witness Taj Muhammad (PW-6), both the appellants fired at the deceased with carbines. Even otherwise, admittedly, no crime empty was secured by the police from the crime scene. So, the alleged recoveries of pistols at the instance of the appellants carry no weight.

10. As far as motive part of the incident is concerned, the prosecution also remained failed to prove this aspect of the case, as the previous incident of quarrel between Muhammad Faheem deceased and Muhammad Rafique appellant has not been proved during the trial as except oral assertions of PWs, no documentary evidence whatsoever is available on record.

11. For the foregoing reasons, I have reached to an irresistible conclusion that the prosecution remained failed to prove its case against the appellants "beyond reasonable doubt", resultantly, the convictions and sentences awarded to the appellants by the learned trial Court cannot be allowed to stand. Hence by allowing the instant appeal, the impugned judgment dated 04.05.2011 passed by the learned trial Court is set aside and the appellants are hereby acquitted of the charge. They are on bail, so, their sureties stand discharged from the liability of bail bonds. JK/S-46/L Appeal allowed.