IJAZ HUSSAIN Versus STATE
RASHID AZIZ KHAN, J: ‑‑Ijaz Hussain (32), Ashiq Hussain (17) with Qamar Abbas (32) and Umar Hayat (16) were sent up for trial by Police Station Pir Mahal, District Toba Tek Singh, for the murder of Iftikhar Hussain. Additional Session Judge, Toba Tek Singh, vide judgment dated 3‑4‑1991 gave benefit of doubt and acquitted Qamar Abbas of the charge. Ashiq Hussain and Umar Hayat were also given the benefit of doubt and acquitted of the charge under section 302/34, P.P.C. They were, however, found guilty for an offence under section 201/34, P.P.C. and each of them was sentenced to 7 years R.I. with a fine of Rs. 25,000, or in default of payment of fine, undergo further R.I. for one year. Ijaz Hussain was found guilty for an offence under section 302, P.P.C. and sentenced to death with a fine of Rs. 20,000, or in default of payment of fine, undergo R.I. for two years. He was also convicted under section 201/34, P.P.C. and sentenced to 7 years R. I. with a fine of Rs. 25,000, or in default, R.I. for one year. It was directed that. the fine, if recovered from all the convicts, shall be given to the legal heirs of the deceased. Convict Ijaz Hussain has filed Criminal Appeal No. 539/91 against his conviction and sentence, whereas convicts Ashiq Hussain and Umar Hayat have assailed their convictions and sentences by way of a separate appeal (Crl. Appeal No. 498/91). Case is also before us for confirmation of death sentence of Ijaz Hussain. All these matters will be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Exh. PA/1, lodged on 23‑7‑1989, was that first informant Shakir Ali Bukhari was an employee of Forest Department at Bahawalpur. They, were five brothers, and Iftikhar Hussain Shah was the youngest, who was employed as a driver on the taxi of one Muhammad Sharif. On 27‑5‑1989 first informant's sister's husband Ghulam Abbas, who was staying with them, went with Iftikhar Hussain in the taxi towards Adda‑Taxi, Pir Mahal. Iftikhar Hussain did not come back for 2/3 days. The first informant kept on waiting and asked his brother‑in‑law, who informed that when they reached the taxi‑stand that day, he got down from the taxi and started talking to one Nusrat Ali Shah and Akhtar Ali Shah, both drivers. In the meanwhile, Ijaz Hussain, Ashiq Hussain and Umar Hayat came and asked Iftikhar Hussain Shah to take them to Mianwali in his taxi. Said Iftikhar told Ghulam Abbas to inform the first informant, and thereafter he went in his car alongwith the above said persons. The first informant kept on searching for Iftikhar Hussain Shah and the Taxi but could not find them. He seriously suspected that Ijaz Hussain Shah, Ashiq Hussain and Umar Hayat had murdered his brother Iftikhar Hussain Shah, and took away the car.
Occurrence in the case took place on 27‑5‑1989 at Taxi‑Adda Pir Mahal, District Toba Tek Singh, 1/2 K.M. from Police Station Pir Mahal. Report Exh. PA was lodged at 2‑15 p.m. on 23‑7‑1989 at Adda‑Taxi Pir Mahal on the statement of Shakir Ali Bukhad P. W.1, which was recorded by Muhammad Yaqoob, S.I., P. W.11. The F.I.R. Exh. PA/1 was recorded by Muhammad Aslam, H.C., P.W.2.
Muhammad Yaqoob, S.I., P.W.‑11; after recording statement Exh. PA sent the same to Police Station for registration of the case. On 26‑7‑1989 Ijaz Hussain, Ashiq Hussain and Umar Hayat, accused persons, appeared before him and he arrested them. On the following day, i.e. 27‑7‑1989 he left for Mianwali alongwith the above said accused and P. Ws. On 28‑7‑1989 they reached the Dera of Qamar Abbas, co‑accused, where each of the accused pointed out the place inside the Dera of Qamar Abbas, accused, as the spot where Iftikhar Hussain Shah was murdered. Then the accused persons led to the bank of the river Sindh and pointed out the place where they had buried the dead body of Iftikhar Hussain. The dead body was dug out. A silver ring on the index finger was found, which was secured vide memo Exh. PH. Shakir Ali Bukhari and Ghulam Abbas with Nusrat Ali Shah identified the dead body of Iftikhar Hussain Shah. He recorded the statement of the witnesses. He got the post‑mortem examination conducted and thereafter took into possession the last‑worn clothes of the deceased vide memo Exh. PQ. He learnt that the taxi- car was in possession of C.I.A. Staff, Rawalpindi, therefore, on 31‑7‑1989 he went to Rawalpindi and 'took into possession the said car. On 2‑8‑1989 he got prepared site‑plan Exhs. PR and PR/I from the Draftsman and gave his notes in red ink thereunder. After usual investigation, he challaned the accused.
Dr. Mohib‑ur‑Rehman, Medical Officer, D.H.Q Hospital, Mianwali, P. W.5, on 29‑7‑1989 conducted the post‑mortem examination on the dead body of Iftikhar Hussain Shah and found that it was a body of a normal built man with good physique. Head was lying separate. The scalp was absent all over the skull. Semi‑fluid material was coming out of foremen magnum. The left upper limb was totally decomposed and bones were hanging with their ligaments. Right hand was also decomposed and bones were exposed. Lower 1/3rd of the legs including both feet were decomposed and bones were exposed, attached only with ligaments. Genital organs were decomposed totally. He noted following injuries:
(1) There was horizontal furrow on the anterior aspects of neck, below the thyroid cartilage. It was blackish in colour while whole other body was dirty white. Muscles of the neck were ruptured. Hyoid, bone and first cervical vertebrae were also fractured. Skin over the face was absent and bones of the face were exposed. Eyes mouth contents including tongue, tonsils etc were absent.,
In his opinion, death had occurred due to strangulation leading to asphyxia, vasovagal inhibition and cerebral congestion which were due to injury No. 1. In cross‑examination, he, however, admitted that the dead body was decomposed to an extent that it could not be identified.
3. Prosecution in support of its case produced 11 witnesses. P. W.1 Syed Shakir Ali corroborated the version given in the FIR. He also stated that he had joined the investigation and in his presence the appellants had pointed out the place inside the house of Qamar Abbas, where Iftikhar Hussain Shah was murdered and thereafter the appellants led to the recovery of dead body from the River bank. He further stated that he had identified the dead body on the basis of silver ring, on which initial of the deceased were engraved as well as from the clothes he was wearing. P. W.2 Muhammad Aslam, H.C. had registered the formal F.I.R. Exh. PA/1 on the basis of complaint Exh. PA, received by him. Muhammad Sharif, P. W.3 was owner of car bearing No. 358 BK on which he had employed Iftikhar Hussain as driver. He had identified the car in Court. Ghulam Abbas, P. W.4, had joined the investigation. In his presence the appellants had pointed out the place of murder of Iftikhar, which was inside the house of Qamar Abbas. Thereafter, he also witnessed the pointation of the appellants, where the dead body had been buried. P. W.6 Manzoor Ahmad, H. C., P. W.6 on 28‑5‑1989 had stopped the car bearing No. DGA 3832 at Fateh Jang Check‑post, in which the appellants were sitting. He had demanded the papers. On thorough checking he found that the papers did not relate to the car in which they were sitting therefore, he took the car into possession under section 550, Cr.P.C. P. W.7 Muhammad Idrees, Constable, was present at Fateh Jang Check‑post when a car was stopped in which the appellants were sitting and the car was taken into possession. Akhtar Ali, P. W.8 was present at the taxi‑stand, Pir Mahal and in his presence the appellants hired the taxi‑car of Iftikhar Hussain and went to Mianwali. P. W.10 Muhammad Ibrahim, draftsman, had prepared site‑plan Exhs. PR and PR/1 on the directions of the police. The case was investigated by Muhammad Yaqoob, S.I., P. W.11. At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They, however, neither appeared in their defence on oath nor produced defence evidence.
4. It was contended by learned counsel for the appellants that the prosecution had miserably failed to prove its case against them beyond reasonable doubt. Contended that there was no direct evidence available and the prosecution in order to establish its case had relied upon circumstantial evidence, which consisted of: (a) evidence of last seen (b) medical evidence, (c) pointation of the place of murder, (d) recovery of dead body, and (e) recovery of stolen car.
Contended that as far as the place of murder is concerned, it was not admissible and that evidence cannot even be gone into. Argued that the medical evidence did not support the prosecution case. Instead, it made the prosecution case doubtful. Lastly it was contended that the evidence of last- seen was of no consequence because the witnesses chose to keep quiet for about 2 months before informing the police about the occurrence. In the absence of any explanation, no reliance on evidence of last‑seen could be placed. The contentions were opposed by learned counsel for the State.
5. We have heard the learned counsel and gone through the file. It is pointed out at the very outset that the occurrence had allegedly taken place on 27th of May, 1989 and the case with regard to the disappearance of Iftikhar Hussain was got registered on 23‑7‑1989 by Shakir Ali Bukhari, P.W.1, real brother of Iftikhar Hussain. The explanation with regard to the delay of about 2 months in registration of the case, or reporting the matter to the police, was that the witness had been searching for his younger brother; when failed, got the case registered. After giving careful consideration to the explanation with regard to the delay in getting the case registered, we are of the view that it is not sustainable. It is extremely unnatural on the part of the real brother to wait for 2 months after the disappearance of his younger brother and then get a case registered. Prosecution's case was that this witness came to know within two days of disappearance of his brother that he had been taken away by the appellants, yet he neither bothered to enquire from them nor informed the police that his younger brother was last seen with them. We, therefore, hold that this delay in registration of the case can be fatal to the prosecution.
Allegation against the appellants was that they while in custody led the police to the house of Qamar Abbas, acquitted accused, and pointed out the place where they had allegedly committed the murder of Iftikhar Hussain. We find there is force in the contention of the learned counsel for the appellants that this portion of the statement of the witness was not admissible, as it means confession made by the accused while in custody of police. Therefore, this evidence is ruled out of consideration.
The appellants had also allegedly got recovered the dead body from the river bank. We have noticed that all the appellants are residents of Pir Mahal, District Toba Tek Singh, but they led the police party to the. bank of the river at Mianwali, and pointed out a place where the dead body had allegedly been buried. It appears to be unnatural. They could not possibly have remembered the place where the dead body was buried by them, as they C were not the resident of the locality and could not be familiar with the surroundings.
The prosecution case, as disclosed in the F.I.R., was that Iftikhar Hussain, deceased, was driver on the taxi of one Muhammad Sharif, P. W.3. Said Muhammad Sharif on 5‑6‑1989 got a case registered under section 379, P.P.C. with Police Station Pir Mahal, District Toba Tek Singh, for the theft of his car bearing No. BK‑358 against Iftikhar Hussain, deceased. Said F.I.R. was got exhibited as Exh. DA. It is interesting to note that in the case, which was got registered on 5‑6‑1989, the first informant had asserted that he had removed Iftikhar Hussain from his service and he was not the driver of the taxi‑car on 27‑5‑1989. The witness in Court, however, stated that he had re‑employed him. But when confronted with the F.I.R., he had to admit that this fact was not disclosed in the case registered at his instance for the theft of his taxi‑car. Statement of Muhammad Sharif, P. W.3, is a serious blow to the prosecution case as it makes it clear that Iftikhar Hussain on the relevant day was not taxi- driver of Muhammad Sharif, P. W.
The evidence of last seen was furnished by P. W.4 Ghulam Abbas and P. W.8 Akhtar Ali. Both of them stated that on 27‑5‑1989 they were present at the Taxi Adda when the appellants came and hired the taxi of Iftikhar Hussain and took him to Mianwali, and thereafter he was never seen alive. As discussed earlier, prosecution has not been able to prove at all that on 27‑5‑1989 Iftikhar Hussain was working as Driver on the taxi which he had allegedly taken to Mianwali. In the absence of this important link, no reliance on the statement of witnesses about their having seen the deceased in the company of the appellants could be placed. The conduct of the witnesses even otherwise disentitles them worthy of any credence, because they saw the appellants taking the deceased away and yet they did not bother to get a case registered nor informed the police about the disappearance for almost 2 months. Therefore, we hold that no reliance on the statements of these witnesses can be placed.
As far as the medical evidence in the instant case is concerned, the doctor who had conducted the post‑mortem examination, opined that the dead body was in advance stage of decomposition therefore was not identifiable. The witnesses who had identified the dead body were put to the test of lengthy cross‑examination, wherein they stated that they had identified the dead body from silver‑ring which he was wearing as well as his clothes. This fact was not mentioned in their statements recorded before the police. Therefore, we hold that it has not been conclusively proved that the dead body recovered was that of Iftikhar Hussain. Since the dead body could not be identified, therefore, the conviction and sentence awarded to the appellants under section 201/34, P.P.C. as well as death sentence under section 302, P.P.C. of Ijaz cannot be maintained.
The upshot of the above discussion is that the prosecution has failed to prove its case beyond doubt, therefore, we accept the appeals, set aside the G convictions and direct that the appellants shall be released forthwith, if not required in any other case. Death sentence is not confirmed. Bail bonds of Ashiq and Umar Hayat, who are already on bail, shall stands discharged.
N.H.Q./1‑127/L Appeals accepted.