1990 P Cr (PLP)

The dead body of Muhammad Ishfaq, (14/15 years) deceased, a student of 7th Class Government High School, Nizamabad, Wazirabad, was found lying in a paddy field on 31-10-1985 at 3-30 p.m. by Bashir Ahmad (P.W.5) and he informed Muhammad Munir complainant (P.W.6) the father of the deceased. On this information Munir complainant left for the police station, come across Mahmood Akhter (P.W.10), Inspector S.H.O. Police Station Sadar, Wazirabad at 4-00 p.m at More Bharoke and made statement (Exh.P.C.). It was sent to the police station where formal F.I.R. was registered on the same day at 4-20 p.m.

2. The version given in' the F.I.R. was that his son Ishfaq deceased was student of 7th class and so was Muhammad Mushtaq appellant of his village, the deceased had taken a pen of the appellant on loan on 29-10-1985 which was lost. So, Mushtaq appellant and Haq Nawaz slapped the deceased on the way back from the school. This information was given by the deceased to the complainant in the evening preceding the day of occurrence. On this the complainant, as per his version in the F.I.R. went to the appellant in the morning and told him that pen would be given to him and he should not enter into dispute. The appellant however, kept quiet. The story proceeds that on the day of occurrence, the deceased left for school in the morning alongwith his school bag and did not return till 2/3-00 p.m. He was anxiously waiting for his son when his cousin Muhammad Bashir (P.W.5) reached and told that the dead body of Ishfaq (deceased) was lying in the paddy field. On this the complainant alongwith Muhammad Bashir Chairman (P.W.7) reached the spot and saw the dead body which was lying in the field with the throat cut and the school bag lying near by. Strong suspicion was expressed (in the F.I.R.) that the deceased was murdered by Mushtaq appellant and Haq Nawaz.

3. Mahmood Akhter, Inspector (P.W.10) reached the spot on the same day i.e. 31-10-1985, inspected the spot and prepared inquest report Exh.P.H. and injury statement (Exh.P.J.) and sent the dead body to the hospital for post mortem. He took blood-stained earth into possession from the place of occurrence vide memo. (Exh.P.D.) and the school bag. He prepared the rough site plan of the spot (Exh.P.K.). He arrested Mushtaq appellant on 2-11-1985 and on 5-11-1985 he made a disclosure and got recovered blood-stained Chhuri (P.14) from near the spot which was taken into possession vide memo. (Exh.P.F.). He also go prepared site plans (Exhs.P.G. and P.G./1) from Nasar Ullah, Revenue, Patwari and gave his red note thereon. Only the appellant was challaned to the Court by him.

4. The autopsy on the dead body was performed by Dr. Muhammad Azam (P.W.1) on 1-11-1985 at 8-00 a.m. It was having the following injuries: -- (1) An incised wound bone deep all the neck vessels larynx, oesophagus were cut. The left part of the servical vertebrae opposite of thyroid was also cut. The wound was running across from left ear to right ear. (2) An incised wound bone deep all the neck vessels larynx, oesophagus were cut. The left part of the servical vertebrae opposite of thyroid was also cut. The wound was running across from left ear to right ear. The injuries were ante-mortem. No.1 was caused by sharp-edged weapon and No. 2 by blunt. Injury No.1 was sufficient to cause death in ordinary course of nature. The probable time that elapsed between injury and death was within two hours and that between death and post-mortem about 24 hours.

5. The appellant at the close of the trial pleaded that he had been falsely involved due to enmity and suspicion. According to him the PWs had deposed against him due to enmity and due to the compromise between k1uhamniad Bashir; Chairman, the uncle of Haq Nawaz and the complainant about Haq Nawaz.

6. The occurrence was admittedly an unwitnessed one. Circumstantial evidence in the form of last seen extra judicial confession and recovery of blood stained `Chhuri' was adduced at the trial. Bashir Ahmed (P.W.5) the cousin of the complainant, stated about the last seen while Muhammad Sadiq was given up. Muhammad Bashir Chairman and Muhammad Sharif (P.Ws.7 and 8) deposed about the extra judicial confession, made by appellant to them. Bashir Ahmad (P.W.5), and Mahmood Akhter, Inspector (P.W:10) provided the evidence as to the recovery of blood-stained Chhuri at the instance of the, appellant. Appreciating and relying upon the same the learned Additional Sessions Judge, Gujranwala vide his judgment dated 19-3-1987 concluded the charge against the appellant, convicted him and sentenced him to imprisonment for life and a fine of Rs.4,O00 or in default one year's R.I. He has come up in appeal.

7. The contention raised is that the very F.I.R. was doubtful inasmuch as Haq Nawaz who was equally alleged to be a culprit was not challaned, motive was against both the appellant and Haq Nawaz, the evidence of last seen was no evidence in the eye of law and even the evidence of extra judicial confession was of doubious nature inasmuch as Muhammad Bashir Chairman (P.W.7) was the uncle of Haq Nawaz the culprit mentioned in the I I.R. who was let off and in any case the extra-judicial confession could not be the basis of conviction unless the same was corroborated by independent evidence of unimpeachable character which was not forthcoming. After having heard the learned counsel for the parties and going through the record I am inclined to agree with the submissions.

8. It was mentioned in the F.I.R. that for the loss of the pen of the appellant both the appellant and Haq Nawaz had slapped the deceased. The motive was, therefore, equal but Haq Nawaz has not been challaned. Mahmood Akhter, Inspector (P.W.10) told in cross-examination that he (Haq Nawaz) was joined in the investigation but he failed to remember whether Muhammad Bashir Chairman was a relative of said Haq Nawaz. He admitted that Haq Nawaz was present in the school on the day of occurrence. His attendance was marked and even ventured to say that it was because of this that he found him innocent. He also told that Muhammad Bashir Chairman and Muhammad Sharif P.Ws. had informed him in their statements under section 161, Cr.P.C. that the accused had told them that he had thrown the Chhuri at the spot. He had inspected the spot. Even the recovery was effected from the paddy field from near the spot. 9encel the recovery of Chhuri on 5-11-1985 in spite of the arrest of the appellant on 2-11-1985 is of not much value. Muhammad Bashir Chairman (P.W.7) stated that on 2-11-1985 when Muhammad Sharif (P.W.8) was sitting with him at his Dera, the appellant reached there and told them that he had murdered the deceased with Chhuri whereafter he had gone to Sargodha, had come back and he be helped and produced before the police. In cross-examination he admitted that he had one relative by the name of Haq Nawaz in the village who was mentioned as culprit in the F.I.R. He denied that due to a compromise regarding Haq Nawaz he had falsely deposed against the appellant. He told that Muhammad Sharif was his friend. He also informed that the appellant had no land in the village and the same was the case with the complainant. Muhammad Sharif on the other hand told that he had no deep friendship with Muhammad Bashir. He also told that Bashir being a Chairman had produced the appellant before the police as he usually produced the persons before the police. Thus, the evidence of extra judicial confession is provided by witnesses who were interested in Haq Nawaz, a culprit mentioned in the F.I.R. who was let off but the appellant, a boy of landless family in the village, was challaned. Bashir Ahmad (P.W.5) stated that on the day of occurrence, he had seen the appellant and the deceased going to the school together. Even if his statement is accepted as correct, it cannot be said that this is evidence of last seen because we have nothing on the record to say that thereafter the deceased was not seen anywhere nor we have evidence that the deceased had not gone to the school on that day.

9. The upshot of the above appreciation is that the evidence, produced at the trial was of such a character that it could not form the basis of conviction, on a capital charge against the appellant. The appeal is, therefore, granted and the appellant is acquitted on the benefit of doubt. He is already on bail and stands discharged of the bail bond. N.H.Q./M-2050/L Appeal accepted.