1991 P Cr (PLP)

SARDAR MUHAMMAD DOGAR, J.

Allah Diya while going to Chah Chanchalwala, alongwith Muhammad Siddiq at 9-00 a.m. on 9-7-1986, noted bloodstains at 4 places in Killa No.23 of Square No.92, belonging to Dhoop Khan. On going a Bigha ahead, they noted a human foot in dry watercourse. Rest of the body was buried. He summoned Muhammad Sharif son of Asim Khan Mayo (later challaned as accused), Sufi Qamaruddin and Muhammad Ramzan. Earth was dug. A dead body of unknown person wearing shirt and Shalwar, was found. Leaving Muhammad Sharif, Sufi Qamaruddin and Muhammad Ramzan at the spot, he proceeded to the police station to lodge the report. Muhammad Ismail, S.I. (P.W.12) met him at City Chowk Kehror Pacca at 10-45 a.m. He made statement Exh. P.D. to him. The Sub-Inspector despatched the statement to the police station for registration of case, on receipt of which Ghulam Rasul, M.H.C. (P.W.3) registered formal F.I.R. Exh.P.D./1 at 11-00 a.m.

2. Muhammad Ismail, S.I., went to the spot. He despatched the dead body for post-mortem examination after preparing injury statement Exh. P.B. and inquest report Exh. P.C. During spot inspection, he collected two empties P.10/1 2 vide memo. Exh. P.K., blood-stained earth, Hawai Chappal, P.7 and an eye-ball made of stone P.8, were also collected from the spot vide memo. Exh. P.L. He recorded statements of Muhammad Hayat (P.W.9), Abdur Rahim (given up P.W.), Allah Ditta (P.W.10) and Muhammad Iqbal (given up P.W.) on 13-7-1986, (The accused allegedly had made extra-judicial confession before them).

3. On 18-7-1986 while standing in front of Dawn Factory at Lodhran Road, he stopped Jeep No.MNJ/7174 being driven by Muhammad Sharif. Aas Muhammad was sitting in the jeep. He arrested both of them and took into possession jeep vide memo. Exh. P.J. Kassi P.6 got recovered by Muhammad Sharif on the same day was taken into possession vide memo. Exh. P.G. Abdul Ghafoor was arrested on 22-7-1986. Pistol P.9 got recovered by him on the same day was taken into possession vide memo. Exh. P.H. After completion of necessary investigation, the challan was submitted to Court.

4. The accused were tried by the Additional Sessions Judge, Multan. The prosecution examined in all twelve witnesses. Positive reports Exhs. P.N., P.O. and P.P. from the offices of the Chemical Examiner, Serologist and the Forensic Science Laboratory, were also tendered in evidence.

5. The accused during their statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. Rana Muhammad Maqsood Akbar, Advocate was examined as D.W.1 by Abdul Ghafoor appellant.

6. Learned trial Judge, vide judgment, dated 11-7-1987 convicted ail the accused under sections 302/34, 201/34 and 404/34, P,P.C., and awarded sentences as follows:-- Under section 302/34, P.P.C. (i) Muhammad Sharif and Abdul Ghafoor sentenced to death; (ii) Aas Muhammad sentenced to imprisonment for life, Each of the three also sentenced to pay a fine of Rs.5,000, in default whereof to undergo R.I. for 2 years each. Under section 201/34, P.P.C. Each of the three sentenced to undergo R.I. for 2 years, plus to pay a fine of Rs.1,000 each, in default whereof to suffer further R.I. for 6 months each. Under section 404/34, P.P.C. Each of the three sentenced to undergo R.I. for one year and to pay a fine of Rs.500 each, in default whereof to suffer further R.I. for 3 months each. Half of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased.

7. Learned trial Judge has made reference for confirmation of death sentence awarded to Sharif and Abdul Ghafoor. Aas Muhammad has filed Criminal Appeal No.150 of 1987, Muhammad Sharif has filed Criminal Appeal No.151 of 1987 while Abdul Ghafoor has filed Criminal Appeal No.456-A of 1987. As all the matters have arisen out of the same judgment, they are being disposed of by a consolidated judgment.

8. The autopsy was performed by Dr. Muhammad Umar Farooq (P.W.1) on 9-7-1986 at 3-00 p.m. He had noted following injuries on the body of the deceased:-- (1) Fire-arm wound 5 c.m. x 5 c.m. on and in front of left shoulder with 6 small punctures. Tatooing was present around the punctures. On dissection there was fracture of left clavical first rib and second rib underneath this injury. There was puncture of left lung 3 led pellets were removed from this wound and handed over to the police in a sealed vial. (2) Fire-arm wound 5 c.m. x 5 c.m. in right temporal region. Tatooing was present around the wound. 1 small led pellet was removed from the wound and handed over to police in a seal vial. There was fracture of skull bone underneath this injury. This was inlet wound. (3) Fire-arm exit wound 6 c.m. x 6 c.m. on left cheek below the left eye. (4) An incised wound 11 c.m. x 4 c.m. x bone cut on left side of head just above and behind left ear. (5) An incised wound 6 c.m. x 3 c.m. muscle deep on left side of neck below and behind left ear. Underneath this injury, muscles, nerves and vessels were cut. He had noted little semi-digested food in the stomach. According to his opinion, death had occurred due to haemorrhage, shock, trauma to head and left lung, due to all the injuries. Injuries Nos.1 to 3 were opined to have been caused by a fire-arm while injuries Nos.4 and 5 were opined to have been caused by a sharp-edged weapon. Time between the injuries and death was opined to be within fifteen minutes while the time between death and post-mortem was opined to be within 3 to 5 days. During cross-examination, he stated that when the inquest report was handed over to him, columns Nos.3, 4 and 5 were blank, and that the S.I. had filled those columns in the hospital after taking back the inquest report from him. He stated that about 200 persons had gathered inside the hospital compound, which included 3/4 relatives of the deceased. According to him the dead body was partly decomposed and little putrified. He admitted that if one foot had remained unburied, the condition of that foot would have been different from the other parts of the body. He expressed opinion that if an area of 20 sqr. feet was dug with a blood-stained Kassi, the blood would have been removed from the Kassi. He denied the suggestion that he had given a false post-mortem report at the instance of the police.

9. Muhammad Hayat P.W.9 deposed that Aas Muhammad and Muhammad Sharif had come to his Dera and confessed before him in the presence of Abdur Rahim P.W. (given up) that they alongwith Abdul Ghafoor, had taken the deceased to the spot on a false pretext arid had buried his dead body there after murdering him. They disclosed that Abdul Ghafoor had fired twice with the pistol while Muhammad Sharif had caused injuries to him with Kassi. .

10. The motive for the occurrence, disclosed by them, was that Amir Khan deceased had developed illicit relations with the mother of Aas Muhammad and wives of Muhammad Sharif and Abdul Ghafoor. The confession allegedly was made by Muhammad Sharif and Aas Muhammad on 12-7-1986.

11. Allah Ditta P.W.10 stated that Abdul Ghafoor had come to his Dera on the evening of 12-7-1986 and had confessed before him the commission of murder of Amir Khan in the presence of Iqbal Khan P.W. The narration of the confessional statement of Ghafoor appellant is corroboratory to the narration of the confessional statement made by Aas Muhammad and Muhammad Sharif, before Muhammad Hayat P.W.9.

12. Muhammad Kabir Khan brother of the deceased who appeared as P.W.6, after stating that the deceased had left the house at 8-00/9-00 p.m. on 6-7-1986 on his Suzuki Jeep No.MNJ/7174. He also claimed to have identified the dead body at the time of post-mortem examination and stated that the Investigating Officer had taken the jeep (No.MNJ/7174) belonging to his deceased brother, into possession on 18-7-1986 in his presence, when the same was found being driven by Muhammad Sharif at Multan Lodhran Road near Dawn Factory. He stated that Aas Muhammad accused was sitting in the jeep at that time. He claimed that Muhammad Sharif on the same day had got recovered Kassi P.6 from his residential house which was taken into possession vide memo. Exh. P.G. He further claimed of having witnessed the recovery of pistol at the instance of Abdul Ghafoor on 22-7-1986 from his house and the taking of the same into possession vide memo. Exh. P.H.

13. Muhammad Amin, who appeared as P.W.7, corroborated the statement made by Muhammad Kabir Khan P.W. in so far as it pertained to the taking into possession of Jeep No. MNJ/7174 from Muhammad Sharif and Aas Muhammad appellants.

14. Muhammad Nawaz who appeared as P.W.8, stated that the police had taken into possession in his presence, blood-stained earth from the place wherefrom the dead body was recovered, as well as 2 crime empties P.10/1-2, pair of shoes P.7 and a stone eye-ball P.8 from around there. He claimed to have attested the relevant memos.

15. Allah Diya who had lodged the F.I.R. appeared as P.W.11. He stated that when he had noted a human foot in the watercourse, Muhammad Sharif son of Asim, Aas Muhammad, Abdul Ghafoor (appellants), Qamaruddin and Muhammad Ramzan P.Ws., were working there nearby fields. He stated that he had called them and they had dug out the dead body.

16. Muhammad Ismail, S.I. who had recorded statements Exh. P.D. on the basis of which formal F.I.R. Exh.P.D./1 was registered at the police station and had submitted the challan to Court after arrest of the accused and completion of investigation, appeared as P.W.12. He gave the details of the investigation conducted by him. (The same have been noted in the earlier part of the judgment.) During cross-examination, he admitted that there was no mention of the crime empties, eye-ball made of stone and Softy Chappal in the relevant columns of the inquest report. He stated that he had recorded the statements of the P.Ws. before whom the accused had made extra-judicial confession on 13-7-1986 on their appearance before him on that day. He stated that the deceased had also illicit relations with women other than those mentioned by the accused while making extra-judicial confession, in that, he particularly named Mst. Akbari wife of one Amrat. He admitted that Abdul Ghafoor accused had been produced before him by two Advocates, namely Maqsood Akbar and Muhammad Shafi. In answer to another question, he stated that he had not raided the houses of Aasu and Sharif after recording statements of the witnesses, before whom they had made confessional statements till 18-7-1986 when he had effected their arrest. He admitted that he had not raided the house of Ghafoor appellant till 20-7-1986. While admitting that Sharif appellant was present at the spot on 9-7-1986 and that he had noted his presence while preparing inquest report, he denied the suggestion that he had set up a false case against all the accused.

17. Muhammad Ashraf, Constable stated during cross-examination that he had taken the parcel allegedly containing empty cartridges from the police station on 22-7-1986 and delivered the same in the office of the Forensic Science Laboratory on 23-7-1986.

18. Ghulam Murtaza, Constable (P.W.4) during cross-examination stated that at the time of digging out of dead body, Abdul Ghafoor accused was present and that the dead body was dug out on his pointation.

19. We have gone through the evidence and considered the contentions raised by learned counsel for the parties. There is no ocular account of the occurrence. The prosecution case rests on the evidence of extra-judicial confession, deposed to by Muhammad Hayat (P.W.9) and Allah Ditta (P.W.10), the evidence of recovery of jeep of the deceased from the possession of Muhammad Sharif and Aas Muhammad, and evidence of recovery of Kassi at the pointing out of Sharif and pistol at the instance of Abdul Ghafoor, coupled with the evidence of recovery of empties, stone eye-ball and Chappal of the deceased, from near the place wherefrom the dead body was unearthed, and the reports from the offices of the Forensic Science Laboratory, Chemical Examiner and the Serologist.

20. Allah Ditta (P.W.10) before whom Abdul Ghafoor allegedly had confessed on 12-7-1986 at evening time of having murdered the deceased was first cousin of the deceased (he stated during cross-examination that the deceased was son of his maternal-uncle and was his personal friend also). He knew that Amir Khan had been murdered. In fact he had remained at the residence of the deceased for 2 days, i.e. 10-7-1986 and 11-7-1986 in connection with the condolence. Had Abdul Ghafoor gone to his Dera and had he confessed before him, he would not have allowed him to move away. He would immediately have taken him into custody and taken him to the police station. In fact he might have taken him to task personally also for having murdered his first cousin. His stance that he had let him go away and had gone on the following morning to Rana Taj Muhammad to inform him about the confessional statement and that thereafter he had gone to the Investigating Officer in the company of Rana Taj Muhammad, to inform him about the confessional statement, is absolutely unbelievable and not in accordance with the conduct of an ordinary prudent person. His admission that Abdul Ghafoor had come to him for the first time, further makes his claim doubtful.

21. Muhammad Hayat P.W. before whom Sharif and Aas Muhammad allegedly had made confessional statements, also knew before that, that Amir Khan had been murdered. He also would not have allowed the culprits to go away so easily. At least, he would not have slept over the matter and waited till the next day when he claims to have gone to Rana Taj Muhammad for reporting about the confessional statement. He did not claim that Aas Muhammad and Muhammad Sharif had any special relations with him. In fact he admitted that Aas Muhammad had come to him only once prior to the day he made - confession before him. A brother of this witness was a Lumberdar. If at all the accused had to go to make confession, to the village of this witness, they would have chosen to go to the Lumberdar, rather than to this witness. In the circumstances, the statement made by this witness also does not inspire confidence.

22. The claim of P.W.9 and P.W.10 further appears to be doubtful for the reason that the S.I. even after having recorded their statements on 13-7-1986 did not bother to raid the houses of the appellants to effect their arrest. Had such confessional statements been made to the P.Ws., as claimed and had the S.I. been informed of that on 13-7-1986, he would not have slept over the matter. The claim of the S.I. that he had seen Muhammad Sharif appellant driving the Jeep (No. MNJ/7174) on Multan-Lodhran Road with Aas Muhammad, sitting in it, and that he had stopped them and taken them into custody, and also took into possession the jeep, lacks inspiration, for the reason that the accused could not have been so big fools of driving the jeep on the main road, which belonged to a person, whom they had murdered and particularly so when the police was looking for them in view of confession already made by them.

23. Yet another fact worth consideration is that if the appellants had chosen to make confessional statements and had done so on 12-7-1986, why would they have not surrendered before the police thereafter or at least why should they not have gone back to the witnesses before whom they had made confessional statements, with the hope that they will gain by that. It is not the case of the witnesses that they had issued threats to anyone or had refused to extend them the help. For all the reasons noted above, no reliance can be placed on the evidence of extra-judicial confession.

24. The evidence of recovery of jeep from the possession of Muhammad Sharif and Aas Muhammad appellants as well as the evidence of recovery of Kassi at the instance of Muhammad Sharif and pistol at the instance of Abdul Ghafoor appellant, has been deposed to by Muhammad Kabir Khan real brother of the deceased. The recoveries were effected on different dates. It is strange that he was available to the police on every date. He did not belong to the place from where the recoveries were effected. His testimony, therefore, does not inspire confidence.

25. The statement of Muhammad Amin P.W.7 about the recovery of jeep from Muhammad Sharif and Aas Muhammad appellants also does not inspire confidence as he was, at the best, a chance-witness. He admitted that there were inhabited houses near about the place wherefrom the jeep was taken into possession. His statement that the police had not taken the key of the jeep from the accused, makes his claim further doubtful.

26. The evidentiary value of the report from the office of the Forensic Science Laboratory about the empties having been taken into possession from the spot to have been found fired from the pistol alleged to have been recovered from Abdul Ghafoor appellant, stands belittled by the statement made by constable Ghulam Murtaza, according to whom parcel of the empties was entrusted to him from the police station on 22-7-1986 and he had delivered the same on 23-7-1986. It is prosecution's own case that the pistol had been recovered on 22-7-1986. which would mean that the empties had neither been despatched nor deposited in the office of the Forensic Science Laboratory at Lahore before the recovery of pistol. Such a background casts shadows of doubt that despatch of the empties was kept m waiting till the recovery of pistol for malicious purposes. Apart from, what has been noted above, we would like to mention here at the cost of repetition that the evidence of recovery of pistol has also not been found confidence inspiring.

27. It is prosecution's case that a ditch, measuring 3 x 4 feet was dug out for burial of the dead body with the Kassi with which Muhammad Sharif had inflicted injuries to the deceased. We find little doubt in the argument of learned counsel for the appellants that no stains of blood could have remained on the Kassi (even if there were any), after the use of Kassi for digging the ditch. In the circumstances, reliance can also not be placed on the reports from the offices of the Chemical Examiner and the Serologist. Apart from that the evidence of recovery of Kassi has also not been found confidence inspiring.

28. Barring the fact that the evidence of extra-judicial confession, the evidence of recoveries and the evidence of reports from the offices of the Chemical Examiner, Serologist and Forensic Science Laboratory, have not been found upto the mark and confidence inspiring, the other factor which weighed with us for coming to the conclusion that the prosecution version of the occurrence did not inspire confidence, was the statement made by Allah Diya P.W.11 who had lodged the F.I.R. at the trial that the appellants were working in the nearby fields when he had noted a foot of the dead body. The fact that the complainant had seen the appellants working in the nearby fields, shows that they either owned land there, or at least were cultivating the same as tenants. If that was so, someone of them, during the intervening period (the doctor who had conducted post-mortem of the dead body, on 9-7-1986, had opined that the deceased had died between 3 and 5 days before that) would have definitely noted that a foot of the dead body was visible. They would have naturally done something so that the part did not remain visible. Their presence around the spot could not have been doubted, for being usual visitors in connection with the cultivation of land. For all the reasons enumerated above, grave doubts have arisen in our mind about correctness and truthfulness of the prosecution case. The appeals are, therefore, allowed and the appellants are acquitted by way of grant of benefit of doubt. Death sentence not confirmed. H.B.T./M-2975/L Appeals allowed.