MUHAMMAD AKRAM Versus THE STATE

1. SAIDUZZAMAN SIDDIQUI, J.‑‑‑The appellants, Muhammad Akram son of Wali 'Muhammad and Gulzar alias Gulla son of Mian Noor Hussain, were tried alongwith 7 others by Additional Sessions Judge, Gujrat, under section 302/364/34, P.P.C. The trial Court acquitted seven co-accused in the case but found guilty only the appellants under section 302/364/34, P.P.C. The appellants were accordingly convicted by the trial Court under section 302/34, P.P.C. and were sentenced to imprisonment for life in addition to fine of Rs.20,000 each and in default of payment of fine to undergo R.I. for 2 years. The appellants were also found guilty under section 364/34, P.P.C. and were sentenced to R.I. for ten years with fine of Rs.10,000 each ' and in default of payment of fine to undergo R.I. for one year, each. On realization ot fine, half of the amount was ordered to be paid to the legal heirs of deceased in the case under section 544‑A, Cr.P.C. The sentences awarded to the appellants, under sections 302 and 364, P.P.C. were ordered to run concurrently.

2. According to F.I.R. which was lodged in the case by Bashirud Din Mahmood (complainant P.W.5) on 7‑10‑1983, the complainant alongwith his brother Zaheerud Din Babar (deceased) was coming to his Village Tarikha on a motor‑cycle from Village Kunjah. When they reached near Kainchi Chowk, Kunjah, the tyre of their motor‑cycle was punctured. While they were standing on the spot, Bus No.2871‑ST which was driven by Muhammad Aftab, acquitted accused, came from Gujrat side and stopped near them. Muhammad Akram, armed with .12 bore gun and Mian Gulzar alias Gulla armed with a Carbine (the appellants) alongwith Arshad son of Wali Muhammad armed with a revolver, Khizar armed with revolver, Arshad son of Muhammad armed with gun, Muhammad alias Muhammada armed with .7 m.m. and Sadaqat alias Kala armed .7 m.m. rifle alighted from the bus and attacked the deceased. They caused injuries on the person of deceased with the butt of their weapons and forced him to board the bus and drove him towards Mangowal. The occurrence was witnessed besides the complainant by Habib Shah, P.W.9 and Pervaiz, given up P.W., who were also going towards Mangowal on motor‑cycle. The complainant due to fear rushed to his house in village Tarikha and narrated the whole occurrence to his family members. In the meantime Mushtaq Ahmed and Ahmed Khan P.Ws. came in the village and told to complainant that the accused had taken away the deceased in the bus to Dera of Muhammad Aslam from where Muhammad Aslam and Muhammad Akbar' also joined the other accused and boarded the bus and went towards the Village Jokalian to murder Zaheerud Din Babar. The motive in the F.I.R. was disclosed as an altercation between Muhammad Aslam Butt and deceased Zaheerud Din Babar over the timings of their buses. On lodging the F.I.R. the spot from where the deceased was abducted was visited by the Police. On the same day, the Police was informed about death of deceased and they proceeded to the spot where his dead body was lying and recovered the same.

3. The incident narrated in the F.I.R. consisted of three parts. The first part related to the abduction of the deceased by the appellants and 5 others in a bus from Kainchi Chowk, Kunjah , The second limb of incident related to the joining of Muhammad Aslam ‑and Muhammad Akbar accused at the Dera of Muhammad Aslam with other accused, and then proceeding alongwith the deceased towards Jokalian, and the last part of the episode related to the murder of the deceased at Jokalian by the appellants and their co‑accused. To prove first part of incident, the prosecution examined Bashir ud Din Mahmood (P.W.5) and Habib Shah (P.W.9). The second part of the prosecution story which related to the joining of Muhammad Aslam and Muhammad Akbar accused with other accused in the case and then taking the deceased in the bus towards Jokalian for murdering him was supported by Muhammad Mushtaq and Ahmed Khan (given up P.Ws.) There was, however, no eye‑witness to support to the last and the final part of the prosecution story where the deceased was done to death by the appellants and others. The ‑ prosecution, however, supported the charge of murder against the accused ' persons through recovery of the headless body of the deceased Zaheerud Din Babar, the bones of severed head of the deceased Zaheerud Din Babar and h is hair and the recoveries of crime weapon. It is, therefore, quite clear that in so far the charge under section 302, P.P.C. against the appellants is concerned, the prosecution relied only on circumstantial evidence in the case.

4. In so far the charge under section 364/34, P.P.C. against the appellants was concerned, we may mention here that in the F.I.R. as well as in the evidence before the Court, the prosecution besides involving the two appellants had equally implicated Arshad son of Wali Muhammad, Afzal,. Khizar, Arshad son of Muhammad, Muhammad alias Muhammada and Sadaqat alias Kala in the offence. According to prosecution all the abovementioned five accused alongwith appellants got down from the bus and after beating the deceased with their respective weapons, forced him to get on the bus and took him towards Mangowal. The part attributed to the appellants and the above mentioned 5 co -accused in the case, in respect of charge under section 364/148/149, P.P.C. was identical. The trial Court while convicting the appellants under section 364/34, P.P.C. acquitted the other five c6‑accused on the same evidence and the order of trial Court was upheld by the High Court. The evidence against the appellants and the acquitted 5 co‑accused in the case on the charge under section 364, P.P.C. being the same, the case of the appellants was not capable of being distinguished from the case of acquitted 5 co‑accused in the case. The learned counsel for the respondent/State has not been able to point us any distinguishing feature in the prosecution evidence which distinguished the case of appellants from the case of acquitted accused so as to justify their conviction under section 364/34, P.P.C. It is admitted before us that no acquittal appeal has been filed in the case against the acquittal of 5 co‑accused in the case against the charge under section 364, P.P.C. Therefore, following the rule of consistency and the rule of safe administration of justice in criminal cases, we set aside the conviction of the appellants also under section 364/34,.P.P.C.

5. The second part of the prosecution story related to the joining of other two co‑accused, namely, Muhammad Aslam and Muhammad Akbar at the Dera of Muhammad Aslam with the remaining accused in the case and then taking the deceased in the bus towards Jokalian for murdering him. This part of the incident was claimed to have been seen by Mushtaq Ahmed son of Ahmed Din and Ahmed Khan son of Ghulam Muhammad P.Ws., who reported it to the complainant. Both these witnesses were not examined by the prosecution and as such this important link in prosecution case remained totally unsubstantiated at the trial and Muhammad Aslarn and Muhammad Akbar were acquitted by the trial Court and their acquittal was upheld by the High Court.

6. The third and final part of the prosecution story related to the act of murdering the deceased by the appellants and others. There are no eye‑witnesses in the case to .support this part of the prosecution case. However, the conviction and sentences awarded to the appellants were sought to be supported by the prosecution on the basis of circumstantial evidence namely, recovery of headless body of the deceased Zaheerud Din Babar, the recovery of bones of the severed head of the deceased and his hair. It may be mentioned here that the headless dead body of the deceased was recovered by the police not at the pointation on the appellants, and therefore, this recovery did not connect the appellants with the offence. The next circumstantial evidence in the case against the appellants was the bones of the severed head‑of the deceased, Zaheerud Din Babar, and some human hair which were recovered on the pointation of appellants. There is nothing in the evidence of prosecution to show that the bones which were a recovered on the pointation of appellants were that of the deceased's head. In fact, no evidence was led by the prosecution to establish that 27 bones recovered 1 at the instance of appellants were bones of a human head. No doubt, the report of chemical examiner with regard to the hair recovered from the spot did show that the hairs were of human origin but this solitary piece of evidence was not sufficient to prove the charge of murder against the appellant especially when the prosecution totally failed to establish the second part of the prosecution story which constituted an important chain in the prosecution case. It is well established rule of law that where conviction is based on circumstantial evidence alone, the facts proved must be incompatible with the innocence of ‑the accused and are incapable of being explained upon any reasonable hypothesis other than the guilt . of the accused (see PLD 1970 SC 56). The circumstantial evidence against the appellants produced by the prosecution in the present case failed to satisfy the above test. We are, therefore, of the view that the prosecution failed to establish the charge under section 302/34, P.P.C. against the appellants beyond reasonable doubt. We, accordingly, allow the appeal, set aside the conviction and sentences awarded to appellants giving them the benefit of doubt. They are directed to be set at liberty forthwith if not required by the authorities in any other case.

7. N.H.Q./M‑3208/S Appeal allowed