1998 P Cr (PLP)

(1) An incised wound 3-1 /2 c. m. x half c. m. on the left side of frontal part of head, 5 c.m. from eyebrow in vertical direction. (2) Five incised wounds 2-1/2 c.m. x 1 c.m., 3 c.m. x 1/2 c.m., 2 c.m. x 1/2 c.m., 1-1/2 c.m. x 1 c.m., 3 c.m. x 1/2 c.m. on the left tampo partial region in different directions in area 8 c.m. x 5 c.m. (3) Two incised wounds 2-1/2 c.m. x 1/2 c.m., 1 c.m. x 1/4 c.m. on the back of head occiptal region in different directions. (4) An incised wound (stabbed) 1-1/2 c.m. x 1 c.m. on the front of upper part of inguial area (Femoral) region with scratches 1-1/2 c.m. liner on the penis). The doctor opined that death in this case occurred due to shock and haemorrhage caused by injury No.4 which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon and time between the injuries and death was few minutes while between death and the post-mortem was 24 to 32 hours. On query of the police he also opined vide report EXh.P.C./1 that the injuries on the person of the deceased were caused by two different kinds of sharp-edged weapons.

5. After completion of the investigation the accused were challaned and sent up for trial before the Court of Sessions at Multan.

6. To prove the charge, the prosecution has produced fifteen witnesses in all and closed the case for the prosecution. The accused when examined under section 342, Cr.P.C. Muhammad Ali accused, in answer to question No.7 stated as under:-- "I am innocent and the case against me is absolutely false. In fact I was involved in this case after about one year of the occurrence only on the behest of the complainant because we had rented a land on which we were running a Soap Factory and the land was owned by complainant party and they wanted to get the same vacated and when I and my co accused Qadir Bakhsh were got arrested they forcibly took the possession of our factory." Almost similar statement has been made by Qadir Bakhsh accused Muhammad Ramzan accused has just stated that he was innocent while Muhammad Afzal alias Kala in reply to question No.9 has made a detailed statement which is reproduced below:-- Decased took me from my house to purchase a karaha. When we reached near the corner of the garden of Nawab sadiq Hussain Qureshi Muhammad Ali, Qadir Bakhsh and Muhammad Ramzan were already standing there. After seeing Muhammad Ali, Ramzan and Qadir Bakhsh accused Fiyaz deceased stated that they are my enemies. They encircled Fiyaz deceased and caught hold of him. The accused also caught hold of me from my back side and tied me with a tree. Ramzan accused wits armed with Tokka whereas Qadir Bakhsh was having a Chhuri and Muhammad Ali caught hold of deceased. They inflicted injuries to Fiyaz and threw him into the well. After that they untied me and asked to run away. The accused had forcibly got the possession of the land of deceased and in this regard there was some litigation. The accused murdered Fiyaz deceased on account of this motive. I am innocent. The Thanedar demanded from me 15/20,000 as bribe which I could not provide due to this reason he challaned me in this case. "

7. Ch: Faqeer Muhammad learned counsel for Qadir Bukhsh, Muhammad Ali and Muhammad Ramzan appellants and Mr. Muhammad Akhtar Khan learned counsel for Muhammad Afzal alias Kala appellant have been heard at length and with their assistance record and the evidence have been perused in minute detail and each aspect of the case has been thoroughly examined.

8. Learned counsel appearing on behalf of the State has, however, supported the judgment of the trial Court and prayed that conviction and sentence be maintained.

9. Qadir Bukhsh and Muhammad Ali are partners in business while Muhammad Ramzan appellant is an employee in the Soap Factory installed by Qadir Bakhsh and Muhammad Ali appellants. Muhammad Afzal alias Kala is not related to either of the accused. The prosecution evidence consists of last seen evidence which is only directed against Muhammad Afzal appellant and to support this last seen evidence the prosecution has produced Khalil Ahmad (P.W.7) and Muhammad Hussain (P.W.12). Khalil Ahmad was declared hostile and has been cross-examined by the learned prosecutor. The other piece of evidence against Muhammad Afzal consists of recovery of cycle (Exh.P.4), blood-stained Toka (Exh.P.5) currency notes (Exh.P.6/1-2j ands; (Exh.P.6/3) and photograph (Exh.P.7) of the deceased. He was arrested on 25-9-1992 and on 29-9-1992 the cycle (Exh.P.4) was recovered while other recoveries were effected on 2-10-1992. Muhammad Latif (P.W.6) and Abdul Razzaq Sub Inspector (P.W.13) have supported the factum of recoveries while Khadim Hussain was not produced.

10. The evidence against Qadir Bakhsh, Muhammad Ali and Muhammad Ramzan consists only of extra-judicial confession. Muhammad Ramzan appeared as P.W.8 and has not supported the prosecution case. Jan Muhammad uncle of the deceased was examined as P.W.10. He also did not support the prosecution case. Allah Ditta and Ghulam Farid P.Ws. were liven up and- not produced. These three accused were arrested on 30-7-1993 almost a year after the occurrence by Malik Dildar Ahmad, Sub-Inspector (P. W.11). Nothing incriminating has been recovered from them and no evidence of any motive has been brought on the file which could attribute any reason for their commission of the offence. However, in their statements under section 342, Cr.P.C. they have given a reason as to why they have been falsely involved but that cannot be read against them. As far as these three appellants are concerned, it is apparently a case of no evidence against them. Hence, there is no alternative but to accept the appeal filed by them and to extend them the benefit of doubt.

11. The case of Muhammad Afzal alias Kala appellant is slightly on a different footing. Though there is no evidence of extra judicial confession against him yet Muhammad Hussain (P.W.12) has supported the prosecution by saying that it was in his presence that the deceased left the house of his father on 30-8-1992 at 6-00 a.m. This evidence is corroborated by the evidence of recoveries effected from Muhammad Afzal alias Kala appellant and the recovery of Toka is also further strengthened by the positive reports of the Chemical Examiner and the Serologist. The precise question would be that whether the statement of Muhammad Hussain (P. W.12) the solitary witness of last-seen evidence could be relied and believed. It is not established from any evidence on the file that Muhammad Hussain (P.W.12) has any enmity with the accused or reason to falsely implicate him in this case. The deceased was taken from his house on 30-8-1992 at 6-00 1.m. and the dead body was discovered from Chah Boharwala, Mauza Abu'al Fateh at 9-00 a.m. the same day. The only thing which is irritating is that if Muhammad Hussain was a truthful witness then he should have on the same day come forward before the police and made a statement that it was in his presence that Muhammad Afzal alias Kala appellant took the deceased from the house of Muhammad Nawaz father of the deceased 'and that Muhammad Nawaz could have also appeared before the police and made that statement before the police in this context. It is very surprising that their statements were not recorded soon but were recorded after lapse of a considerable time. The recovery of cycle (Exh.P.4) has not been positively connected as that belonging to the deceased and the recovery of currency notes is also not identifiable as to whom they belonged. To strengthen the prosecution case the police has planted photograph (Exh.P.7) of the deceased which the accused had no reason to keep as a love sake. Thus, the recovery of Toka even if established, is not a circumstance which could warrant conviction without any other substantive evidence on record. Therefore, I find that the case against Muhammad Afzal alias Kala appellant is also not very strongly proved against him. The statement of the accused recorded under section 342, Cr.P.C, is an exculpatory statement. If the other co-accused could have done to death Fiyaz deceased then there was nothing to stop them from doing away with the accused and there was no fun to leave behind a witness against them. The prosecution cannot benefit from this statement and it has to stand on its own legs. It is the duty of the prosecution to prove its case beyond reasonable doubt to earn a conviction but in the present case I find that the prosecution has not been able to prove its case beyond reasonable doubt. Hence, appeal of this appellant is also accepted and as a result all the four convicts are acquitted of the charge against them and they shall be set at liberty if not required in any other case. H.B.T./Q-10/L Appeal accepted.