SABIR HUSSAIN Versus THE STATE

This appeal has been directed against the judgment dated 29‑1‑2001 passed by the learned Session Judge, D.G. Khan in case F.I.R. No.284 of 1998 dated 31‑10‑1998 under section 302/201, P.P.C., whereby the accused/appellant was convicted under section 302(b), P.P.C. and sentenced to life imprisonment with a direction to pay Rs.50,000 as compensation to the legal heirs of the deceased and in case of default thereof to further undergo S.‑I. for six months. Also convicted under section 201, P.P.C. and sentenced to seven years R.I. with, a direction to pay Rs.20,000 as fine and in case of default thereof to further undergo S.‑I. for six months. However, both the sentences were directed to run concurrently except the sentences in default of payment of fine. Benefit of section 382‑B, Cr.P.C. was also extended to the appellant.

2. F.I.R. (Exh.P.A.) was recorded by Irshad Hussain P.W.1 on 31‑10‑1998 at about 3‑00 p.m. on the statement of Hafiz Muhammad P.W.4 son of the deceased at Police Station Drahma for an occurrence, which had taken place on 26‑10‑1998.

3. Briefly the prosecution story as it emerges from the F.I.R. is that Sabir Hussain appellant was servant of complainant's father Allah Wasaya and latter had constructed a room on his agricultural land. Sabir Hussain used to took loan from his father and Rs.8,440 were payable by him, while his brother Ashiq Hussain had also taken a loan of Rs.2,000 from his father. On 26‑10‑1998 father of the complainant went to recover the loan amount from Sabir Hussain and his brother by riding a bicycle but did not return for a long time. The complainant alongwith his real uncle namely, Allah Dad went to the house of Sabir Hussain, who' admitted that father of the complainant had come to take the amount front him but subsequently went back on the bicycle after receiving the amount. Father of the complainant ‑did not return till night and his whereabouts were not known. The complainant alongwith other witnesses again went to Sabir Hussain, who showed ignorance. The complainant continued his search without success. On 31‑10‑1998 at about 10‑00 a.m. they again approached Sabir Hussain and found bicycle of Haji Allah Wasaya deceased (complainant's father) at the baithak of Sabir Hussain, who again expressed ignorance. According to the complainant they were returning back and when they reached near Super R‑11, Fayyaz Hussain son of Ashiq Hussain met them, who told that he had seen the, dead body of Haji Allah Wasaya, father of the complainant at Super R‑11 on the Western Bank. The complainant and witnesses sent to the said place and found the dead body of Haji Allah Wasaya lying in the water and the stones were tied between the legs and around the neck. The complainant suspected that Sabir Hussain alongwith other persons had committed the murder of his father and thrown the same in water pond for causing disappearance of evidence.

4. The appellant was arrested on 11‑11‑1998 and during investigation led to the recovery of cycle through memo. (Exh.P.K.) on 13‑9‑1998; a purse of the deceased was also recovered at the instance of the appellant on 14‑I 1‑1998, which was taken into. custody vide memo. Exh.P.M. and one revolver was also recovered on pointation of the appellant on the same day, which was also taken into possession vide memo Exh.P.N. After the conclusion of investigation, report under section 173, Cr.P.C. was submitted in the Court and charge was framed, which was denied by the appellant and the prosecution in order to prove the guilt of the accused/appellant produced seven witnesses.

5. P.W.I Irshad Hussain, Head Constable and P.W.2 Muhammad Qasim, constable are formal witnesses as Irshad Hussain P. W.1 only recorded the F.I.R. and kept the parcels in the Malkhana while P.W.2 Muhammad Qasim took the dead body to mortuary, produced the last worn clothes of the deceased before the Investigating Officer and took the parcels to the office of Forensic Science Laboratory and the Chemical Examiner. P.W.3 Dr. Fayyaz Kareem Leghari, Medical Officer had conducted the post‑mortern examination of the deceased while Hafiz Hussain P.W.4 complainant supported the story of F.I.R. as well as the recoveries from the spot and from the appellant. P.W.5 Muhammad Hanif furnished the evidence of last seen while P.W.6 Muhammad Hussain stated about extra‑judicial confession made by the appellant. P.W.7 Ijaz Hussain Bukhari, S.‑I./S.H.O. had conducted the investigation. After the conclusion of prosecution evidence, the statement of accused/appellant was recorded under section 342, CC.P.C., in which he denied the allegations and claimed his innocence.

6. The learned trial Court on conclusion of the trial, after hearing the learned counsel for the parties convicted and sentenced the appellant as stated above, hence this appeal.

7. Learned counsel for the appellant contends that the statement of Muhammad Hanif P.W.5 is not plausible as according to the complainant (P. W.4) he was present at the time of recovery of dead body and F.I.R. was lodged after the recovery of the same, but it is not mentioned in the F.I.R. that Muhammad Hanif had seen the deceased in the company of deceased before the occurrence. It is further contended that P.W.4 stated that all the witnesses were present at the spot but the statement of Muhammad Hanif P.W.5 under section 161, Cr.P.C. was not recorded on the said day when the dead body was recovered and it was recorded on 3‑11‑1998. It is further contended that Muhammad Hanif P.W.5 was cousin of the deceased and his statement was subsequently recorded to introduce the story of last seen. It is further contended that Muhammad Hussain P.W.6 was also related to the deceased and the complainant and according to him, the extra judicial was made by the appellant before him but F.I.R. was lodged after six days of alleged disappearance of the deceased and it is strange rather unbelievable that he in spite of being closely related to the deceased had not told the complainant and other witnesses about the confession made by the appellant 3 days earlier to the lodging of F.I.R. It is further contended that the appellant had no concern with. P.W.6 and was also not on speaking terms with him, hence, there was no need to make extra judicial confession before him. It is further contended that Hafiz Muhammad P.W.4 had only raised suspicion and had not seen the occurrence while the articles allegedly recovered from the appellant or at his instance are easily available in the market hence the recovery of the same alone is not sufficient to connect him with the commission of the crime. It is also contended that it is strange that when the witnesses had visited his house, the cycle was found parked in the Baithak by the witnesses but it was not taken into possession and its recovery was only shown to create evidence, whereas the recovery of revolver is of no importance as no empty was recovered from the spot. Lastly, it is argued that the evidence produced by the prosecution was not sufficient to connect the appellant with the commission of crime, hence he may be acquitted of the charge.

8. Learned State counsel has opposed this appeal.

9. I have heard the learned counsel for the parties and also perused the record with due care and caution.

10. The complainant lodged the F.I.R. only on the suspicion that appellant was accused for the murder of his father. Admittedly there was no eye‑witnesses of the occurrence. The prosecution cast only rests on circumstantial evidence comprising motive last seen, extra‑judicial confession and recoveries furnished by P.Ws.4 to 6.

11. In order to prove the extra‑judicial confession, statement of Muhammad Hussain P.W.6 has been relied upon, who admitted that Allah Wasya deceased was cousin of his father and his niece was married to him. During the cross‑examination he stated that 3/4 days earlier to the arrival of Sabir Hussain he learnt about disappearance of Allah Wasava deceased. His statement was not recorded by the police at the time of recovery of dead, body in spite of that according to Investigating Officer Ijaz Hussain, S.I. P. W .7 all the witnesses were present at the place wherefrom the dead body was recovered when he visited the said place. His statement was recorded on 10‑11‑1998 while the deceased was missing since 26th of October, 1998 and if the appellant had appeared before him after 3/4 days he might have appeared on 29th or 30th of October, 1998, when no case was registered and F.I.R. was registered on 31‑10‑1998. This witness was closely related to the deceased and the complainant. It is strange that he had not informed the complainant immediately or apprehended the accused, in spite of that he was in the knowledge of disappearance of Allah Wasya. F.I.R. in this case was lodged after about six days of disappearance, but the factum of making extra judicial confession before this witness was not got mentioned therein. His statement under section 161, Cr.P.C. was recorded at a belated stage on 10‑11‑1998 after about 10 days of the registration of the F.I.R. without giving any explanation therefor He also admitted that neither he is Lamberdar nor ever contested election of Union Council and Sabir appellant was not related to him or on visiting terms with him. He had never visited his house previously and resides at a distance of 13/14 miles away from the house of this P.W. In the above circumstances, it is not believeable that there was any occasion for the appellant to make extra‑judicial confession before this P.W. It is also strange that even after making extra‑judicial confession before P.W.6, the appellant remained present in his house as according to the complainant on 31‑10‑1998, he again inquired from the appellant about his father, but he showed ignorance. In such circumstances this piece of evidence is not trustworthy and cannot be relied upon to maintain conviction and sentence.

12. Now, I come to the evidence of last seen furnished by Muhammad Hanif P.W.5. He during the cross‑examination admitted that the deceased was uncle of his father. According to the complainant (P.W.4) he was present there when the dead body was recovered before the registration of F.I.R. but this fact was not mentioned in the F.I.R. that Muhammad Hanif had seen the deceased in the company of appellant on the day of occurrence. HP was allegedly present at the place of recovery of dead body when the Investigating Officer (P.W.7) came and he had stated so but his statement was not recorded on the same day i.e. 31‑10‑1998, which was recorded at a belated stage on 3‑11‑1998 without any explanation. When the deceased was missing, why he had not informed the complainant about seeing of the deceased in the company of appellant on the same day. Seems that Isis statement was subsequently recorded in order to implicate the appellant, which cannot be relied upon.

13. The motive of the occurrence was that the deceased had given Rs.8,440 as loan to Sabir Hussain appellant while Rs.2.000 to his brother Ashiq Hussain and his father had gone to receive the said amount whereafter he was missing. The contradictory stand has been taken in this regard as on the one hand he stated that Sabir Hussain was working with his father as his servant and during the cross‑examination he stated that the appellant was removed from service about 2/2‑1/2 months before the occurrence, but in the same breath stated that he was working as temporary servant with Allah Wasaya at the time of occurrence. When Sabir was working with the deceased as his servant in the days of occurrence, it does not appeal to mind that there was any need to go to his house by the deceased to receive the money as there is nothing on the record to show that he was not coming to his job. Even otherwise, there is no evidence on the record to show that any amount was payable by the appellant and F.I.R. was also not immediately lodged if the complainant was confident that the appellant had murdered his father to avoid return of loan amount. As such the prosecution also failed to prove motive.

14. So far as evidence of recoveries is concerned, in his statement under section 154. Cr.P.C. P.W.4 stated that bicycle was found parked in the Baithak of the appellant but it is strange that why he had not inquired the appellant about its presence there and why he did not take the bicycle with him which was subsequently shown to be recovered on 14‑11‑1998 at the instance of the appellant. This piece of evidence cannot be relied upon as such type of bicycles are easily available in the market. Similarly, the recovery of purse cannot be held sufficient to hold that the purse belonging to the deceased had been recovered from the appellant, as there was no specification marks on it and these are also easily available in the market. The recovery of pistol is also of no use as no empty was recovered from the place of occurrence and it is strange that the empty, allegedly recovered from the pistol was sent to the office of Forensic Science Laboratory, which though has matched with the weapon recovered from the appellant, but there was no evidence on record that this empty was as a result of shot fired at the deceased. The, report of the Forensic Science Laboratory is of no avail to the prosecution.

15. For the foregoing reasons the prosecution has miserably failed to bring home guilt to the appellant beyond any shadow of doubt. Hence, this appeal is accepted, the impugned judgment of conviction and sentence dated 29‑1‑2001 passed by learned Sessions Judge D.G. Khan is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt. The appellant shall be released from the jail forthwith, if not required in any other criminal case.

N.H.Q./S‑124/L Appeal accepted.