MUHAMMAD ASHRAF Versus STATE

GHULAM MUJADDID MIRZA, J. ‑Muhammad Ashraf (28), Mushtaq (24) residents of Mahmood Booti,. Baghbanpura, arid Muhammad Ishaq (26) resident of Kalandarpura, Moghalpura, Lahore, were committed for trial to the Sessions Court by the Magistrate Ist Class vide commitment order dated 15th April, 1975. All the three accused were charged under section 302/377/34, P. P. C. whereas Muhammad Ishaq accused was also charged under section 109, P. P. C. The trial Court found all the three accused guilty under section 302/377/34, P. P. C. and sentenced them to death and a fine of Rs. 2,000 each; in default of payment of fine to undergo R. I. for a period of six months. However, there is no mention in the judgment about any sentence under section 377, P. P. C. The convicts have filed appeal against their conviction and reference is also before us for confirmation of death sentence.

2. In the year 1973, Muhammad Latif, Forester, was posted at Forest Colony, Jallo. On the morning of 9th April at about 7‑00 A.m. he was on patrol. Some foul smell was coming while he was passing near field No. 23. He left the road ; went into the plot of trees and there saw a human dead body lying upside down in a ditch. He sent a note Exh. PD to Range Forest Officer and requested that the police .be directed to take necessary action in the matter. This note was forwarded to S. H. O., Manawan by the Range Forest Officer vide Exh. PD/1 and then the duty Officer Manawan wrote Report No. 16 (EXh. PD/2) in the daily dairy, on the basis of which formal first information Exh. PD/3 .was registered.

3. Investigation in this case was partly conducted by Khan Muhammad Cheema S. I., who on receipt of the report went to the spot prepared injury statement Exh. PK and inquest report Exh. PL of the dead body, which was later on identified by Ghias‑ud‑Din to be that of Abdur Rashid alias Sheeda, his son. The police officer also took into possession pair of chappal P. 1/ 1‑2, torn jacket P2 vide memo. Exh. PA and made them into a sealed parcel. On his transfer, investigation was taken over by Muhammad Anwar S. I., who arrested Mushtaq and Muhammad Ashraf on 25th April, 1973 and Muhammad Ishaq on 29th April, 1973.

4. Post‑mortem was performed by Dr. Sabir Ali on 10th April, 1973. He deposed that the dead body was of a young adult male. Facial expressions were not recognizable. Maggots were crawling all over the body. Orbital cavities were empty and eaten away. Hair on the scalp black and almostly detached except a tuft attached to the back of right side of head. In the left upper arm only humerus bone found attached with the shoulder joint. Ribs on the both sides and back exposed. All the teeth were present in the socket and were easily detachable. The nails were loose and detached. The brain was putrefied and liquefied. Hyoid bone found in signet shape. The doctor was of the opinion that it was highly probable that the cause of death in this case was throttling. The parna wrapped around the neck probably had no part to play in the causation of death".

5. All the accused pleaded not guilty. Muhammad Ishaq, who had confessed his guilt before Akhtar Ali Moonga; Magistrate, retracted his confession and said that it was due to fear and pressure of the police.

When questioned why this case against you, his answer was:

"I divorced Mst. Shafan Bibi who is the daughter of Misar Din P. W. and Ghias Din P. W. is the son‑in‑law of Misar Din. Due to this enmity I have been falsely involved in the case."

On being asked as to whether he would like to produce any defence, he said : `yes'.

Ashraf and Mushtaq while denying the allegation said that they. had been implicated due to enmity with the police and P.Ws. Both the accused said that they would like to produce evidence in their defence,

Shamsul Hassan, a Clerk in the Railway Steel Shop, Moghalpura, and Asghar Ali H. C. No. 1693, Police Station, Moghalpura, appeared as defence witnesses.

6. Before discussing the contentions raised by the learned defence counsel, we may observe that this is a case where no direct evidence is available of the murder. , Nobody saw who killed Abdur Rashid alias Sheeda and how he was done ‑to death. The entire case hinges on circum stantial evidence. As already observed police took cognizance of the matter on the report of Muhammad Latif Forester.

The other evidence is‑ that of "last seen". Muhammad Sharrif P. W.11 said that one Thursday at about 2‑30/3‑00 p.m. while he was coming back from Harbanspura, he saw the deceased going towards Harbanspura Railway Station. On the next day. he came to know that Sheeda was missing and 4 or 5 days after that he was told that he was dead..

Ashiq Ali P.W. 14's evidence was that while he was standing at door of his baithak, he saw Sheeda standing along with 3/4 persons in street. Those persons were not known to him. This witness was declared hostile.

Bashir Ahmad P. W. 15, a Carpet Maker, resident of Rampura, deposed that in the month of April 1973 he was on duty on the $. R. B. Canal Bridge. In those days he was serving . as Mujahid in 43 Punjab Battalion and it was in that capacity that he was on duty on the Bridge. At 5‑00 or 5‑30 p.m. he saw the deceased coming from Kharian Wala village. Bashir stopped him and inquired who he was. The Mujahid was informed that he was the son of Kalandar and was going to meet his companions. Bashir allowed Abdur Rashid to proceed. Half an hour after that Rashid again came to the Bridge on a cycle. One person was sitting behind him. This time the witness did not stop him.

The other evidence is that of extra‑judicial confession and judicial confession of Muhammad lshaq. Extra‑judicial confession was made before Ch. Niaz Ahmad, a transporter resident of Old Masjid Road, Wassanpura. This witness was disbelieved by the trial Court and that was rightly done.

The judicial confession was recorded by Akhtar Ali Moonga, Magis trate Ist Class which we shall discuss later on.

The other evidence is that of recovery of two items wallet/P. 3 and photo of the deceased P. 311 which was taken into possession vide memo. Exh. P. C.

7. Mr. Minto learned defence counsel for appellants 1 and 2, at the very outset submitted that this is, a case of no evidence. He challenged the judicial confession on the ground that it did not fulfil the requisite legal formalities because the learned Magistrate did not disclose his identity before recording the confession nor did he give reasonable time to the accused to think over the matter. He was not, even told that after his confession had been recorded he would not be sent back to the police custody. In view of this learned counsel submitted that this evidence could not be used against the accused. In this sequence learned counsel submitted that if at all the judicial confession was of any value then it lost its importance because Ishaq accused retracted the same before the learned trial Judge.

With regard to the recovery learned counsel submitted that it was not sufficient in law to warrant the conviction of the appellants for the alleged crime.

8. We have also heard the learned counsel for the State who felt very uneasy to support the judgment of the trial Court.

9. None of the witnesses, who saw the deceased, ever said that the deceased was last seen in the company of the appellants. Their evidence A therefore, is of no value. So far as the judicial confession is concerned] learned counsel relied on Bhuboni Sahu v. The King (P L D 1949 P C 90) and submitted that such a statement was not substantive evidence nor could it form the basis of convict on of the appellants, especially when it had been retracted. Learned counsel further submitted that the confession of the co‑accused was the weakest type of evidence.

Reliance was also placed on the following observation made by the Supreme Court in Goygun Bibi v. The State (P L D 1960 S C 313):

"It is true that if there were no other evidence . against Joygun Bibi except the confession of Abdul Majid, then, the confession by itself being merely a matter to be taken into consideration, and not having the quality of evidence against Joygun Bibi, it could rightly be held in law that her conviction could not be sustained on the confession alone. The grounds for this conclusion would undoubt edly gain weight if the confession were also retracted.

Learned counsel then cited the case of Rehmat Ali v. Ismail (1978 P Cr. L J 504) to prove the effect of failure by the Magistrate to fulfil the essential legal formalities before recording the confession.

We have also considered the evidence pertaining to the recovery of wallet and photo of Abdur Rashid deceased. This evidence is not of much help to the prosecution because it did not connect the appellants with the alleged offence.

Even otherwise we have come across material contradictions in the evidence of the prosecution witnesses : for instance, Muhammad Awais P.W. 12 said that when he saw the dead body, hands and legs were with the body and were not lying separate, whereas, the medical evidence is contrary to this. This witness further deposed that he noticed blood. ,rains on two sides of the dead body but the investigating officer's version was that he did not see any bloodstains at the place of occurrence since grass and leaves were lying in abundance.

Muhammad Latif Forester in his cross‑examination said that only he accompanied the police party to the place of occurrence, whereas, according to P. W. 12 other persons were also with the police party.

10. We are, therefore, of the view that this is a case where sufficient evidence is not available to justify the conviction of the appellant. The prosecution has failed to prove its case against the appellant, therefore, we don't think it necessary to discuss the defence evidence.

This appeal, therefore, must succeed. We accordingly set aside the conviction and sentence of the appellants, decline to confirm the death sentence and order that the appellants be set at liberty forthwith if not required in any other case.

Appeal accepted.