MUHAMMAD BASHIR Versus STATE

ORDER

ASLAM RIAZ HUSSAIN, J. ‑‑Facts of the prosecution case are briefly that the dead body of Abdul Karim was found in the graveyard known as Pir Mitha, Wazirabad on 7th of December, 1985, by Muhammad Boota (P.W.6). He informed the police about it. The police took the dead body to the house of the deceased in the evening, where his brother informed the police that the deceased had gone out of the house since the 5th of December, 1985, and they were worried but did not inform the police about it. It is, thereafter that one Nawab Din (P.W.9), a relative of the complainant, stated before the police that he had last seen the deceased alive in the company of three accused petitioners namely, Muhammad Bashir and Muhammad Arshad and Muhammad Hanif. The police arrested them two days later on the 9th of December, 1985 and on the 10th they made the following recoveries from them:‑

(i) From Muhammad Bashir petitioner a knife stained with human blood;

(ii) From Muhammad Arshad petitioner two pocket cuts from the shirt of the deceased which contained the identity card bearing the name of Abdur Rahim brother of the deceased; and

(iii) From Muhammad Hanif petitioner Currency Notes worth Rs.3, 400 belonging to the deceased alongwith a blood‑stained handkerchief were recovered from the pocket of the deceased's shirt;

Nawab Din P.W. as well as the recovery witnesses supported the prosecution case at the trial. Their testimony was supported by the extra‑judicial confession stated to have been made by Muhammad Hanif accused‑petitioner before Muhammad Ramzan (P.W.10). The trial Court believed the prosecution evidence and sentenced all the three accused‑petitioners to death under section 302/34, P.P.C. and a fine of Rs.2,000 each.

2.Their appeal before the High Court was dismissed. It, however, reduced the sentence of Muhammad Hanif petitioner from death to that imprisonment for life while it confirmed the death sentences of the remaining two accused. Hence the present petition for leave to appeal.

3. Learned counsel for the petitioners argued before us that Nawab Din is a chance witness. He is connected with the complainant party. Had he last seen the deceased alive in the company of the three accused‑petitioners he would have certainly informed the brother of the deceased when he did not return for three days and a search was being made for him. In any case the members of the family of the deceased would have reported the matter to the police and would also have made inquiries as to whether anyone had seen the deceased alive in the company of the accused.

He stated next that the recovery of the blood‑stained knife from Muhammad Bashir does not in any way connect him with the crime.

As for the recovery from Muhammad Arshad petitioner he pointed out that the alleged recovery of two pocket cuts from the shirt of the deceased found in his possession is extremely doubtful because:

(i) Investigating Officer has not mentioned in the inquest report about the two pocket cuts of the shirt of the deceased having been found cut; and

(ii) Even the doctor who performed the post‑mortem examination of the dead body did not notice that the pockets of the deceased's shirt were cut.

He submitted that this recovery had been manufactured subsequently to show that it is the accused who has been connected with the crime.

4. Similarly he argued that Rs.3,400 recovered from the deceased did not by themselves connect Muhammad Hanif petitioner with the crime and it is extremely doubtful that the accused would not have thrown away the handkerchief on which the name of the deceased had been embroidered. He submitted that this too was manufactured piece of recovery.

He submitted that if the recoveries are kept out of consideration, there is not sufficient evidence to maintain the conviction of the petitioners. He submitted further that Muhammad Hanif had hardly any reason to go and make the alleged extra‑judicial confession before Muhammad Ramzan (P. W.10) who being his neighbour does not enjoy the status which would have induced Muhammad Hanif to approach and make a confession before him. In any case the confession made by him could not be said to have supported the prosecution case against the remaining co‑accused‑petitioners.

5. In our view the above‑noted contentions raised by the petitioners counsel need further consideration. Leave is, therefore, granted to the petitioners to see whether the well‑established principles of appreciation of evidence in criminal cases have been followed in this particular case.

M.I./M‑12/S Leave granted