AKHLAQ AHMAD Versus THE STATE
Akhlaq Ahmad son of Tufail Ahmad Khan, aged 26 years, resident of Lahore, and Muhammad Ejaz son of Muhammad Ali aged 19 years, resident of Kasur City, have filed this appeal against the judgment of Additional Sessions Judge, Kasur, dated 13‑1‑1986, whereby they have been convicted for the murder of Muhammad Arif aged 28 years of Kasur City and sentenced to imprisonment for life and a fine of Rs.10,000 each or in default thereof to undergo R.I. for one year. It was also directed that the fine, if realised, shall be paid to the heirs of the deceased as compensation.
2. The prosecution story as disclosed at the trial was that Muhammad Arif (deceased) was son of Muhammad Din (P.W.21) and Mst. Imam Bibi (P.W.8) and the brother of Ashiq (P.W.9). He was class‑fellow of Akhlaq Ahmad (appellant) and was electrician by profession. In the days of occurrence, Akhlaq Ahmad (appellant) was constructing his Kothi in street No.2 Chowk Yateemkhana, Lahore, and Muhammad Arif (deceased) had undertaken its electrification work. A year before the occurrence (which allegedly took place on the night between 11/12‑12‑1983) Imam Bibi and Ashiq P.Ws. demanded hand of the sister of Akhlaq Ahmad (appellant) for the deceased. This demand was turned down by mother of Akhlaq Ahmad (appellant) who also felt insulted over it. Due to this, relations of Akhlaq Ahmad appellant with the deceased were ruptured. About 4 months thereafter, Akhlaq Ahmad (appellant) having patched up his differences with the deceased again brought him to Lahore for supervising the construction work of his Kothi. In those days Muhammad Ijaz appellant worked as apprentice with the deceased.
3. On 12th December, 1983, Rana Muhammad Sharif (P.W.17) resident of Bhai Pheroo, District Kasur, found dead body of an unidentified youngman wrapped in a gunny bag, lying on the road near his brick kiln. He reported the matter to local police whereupon S.I. Muhammad Sharif (P.W.20), S.H.O. Police Station Bhai Pheroo, drew up F.I.R. Exh.P.L. under section 302, P.P.C. and went to the spot. He took out the dead body from the gunny bag (P.1) and removed Muffler (P.2) and a string (Exh.P.3) with which hands and feet of the dead body were tied. He secured these articles under memos. Exh.P.E., P.F. and P.G. respectively. He got the dead body photographed from Muhammad Ali, photographer (P.W.3) and kept the photograph (Exh.P.C.) at his police station for identification purposes. Having prepared inquest report Exh.P.M. he got the dead body post‑mortemed by Dr. Muhammad Rafi (P.W.1). He removed blood‑stained earth from the spot and seized it under memo. Exh.P. D. He got published a news item in newspaper (not produced) about discovery of an unidentified corpse inviting people to identify the same by seeing the photograph Exh.P.C. as the dead body after its post‑mortem examination had been buried by the municipal authorities as unclaimed one.
4. Dr. Muhammad Rafi Chaudhary (P.W.1) who performed post‑mortem examination on the dead body at 5 p.m. on 12‑12‑1983, found post‑mortem staining present on the right side of the body, more marked in front of chest and front of right side of thigh, multiple abrasions on the right side of neck which join together to give the shape of ligature mark. The hyoid bone was, however, intact. The right side of heart was full (of blood) and left side was empty. He sent parts of viscera, stomach, small and large intestines, liver, spleen and kidney, to Chemical Examiner for analysis, although according to him, there was evidence of death by strangulation. He deferred his final opinion till receipt of Chemical Examiner's report but it is not known as to what report the Chemical Examiner had given. Death, according to doctor, occurred immediately due to strangulation and post‑mortem was conducted 18 hours after death.
5. Having read the news, in the newspaper about discovery of unidentified dead body, Muhammad Ashiq (P.W.9), deceased's brother felt suspicious and asked Akhlaq Ahmad on telephone to send his brother Muhammad Arif (deceased) as his mother was ailing. The appellant allegedly replied him that the deceased having quarrelled with him had gone away since Saturday last.
6. On 15th December, 1983, Muhammad' Ashiq (P.W.9) his mother Mst. Imam Bibi (P.W.8) and his father Muhammad Din (P.W.21) saw photograph (Exh.P.C.) of the dead body at Police Station Bhai Pheroo and identified it to be of Muhammad Arif (deceased). They also identified his wearing apparels in the custody of the police.
7. On 17‑12‑1983 S.I. Muhammad Sharif (P.W.20) arrested Akhlaq Ahmad and Muhammad Ijaz (appellants). As a result of interrogation Akhlaq Ahmad got recovered a woollen Chaddar (P.9) from his under construction house near Yateemkhana Chowk, Lahore, on 20‑12‑1983 which was secured vide memo. Exh.P.P. The same day he got recovered a bag containing five suits (Shalwar and Qameez) Exh.P.10/1‑5 vide memo. Exh.P.Q. These articles were identified as belonging to the deceased. Both these recoveries were witnessed by a hostile witness Faqir Muhammad (P.W.14) and Aziz Ahmad P.W. (not produced). On the same day Muhammad Ijaz (appellant) got recovered a pair of red Chappel (P.8) of the deceased from his house in Kasur, vide memo. Exh.P.J. attested by Salamat Ali (P.W.13) and Abdul Rashid P.W. (not produced). Muhammad Ijaz (appellant) also allegedly made extra‑judicial confession before Imam Din (P.W.12) to the effect that because the deceased had illicit relations with the sister of Akhlaq Ahmad, therefore, he and Akhlaq had killed the deceased by strangulating him with a Muffler and then putting the dead body in a gunny bag threw it away on the road.
8. At the trial prosecution examined 21 witnesses and relied on following pieces of circumstantial evidence against each appellant. Against Akhlaq Ahmad, appellant, it relied on:‑
(a) The evidence of motive furnished by Mst. Imam Bibi (P.W.8) and Muhammad Ashiq (P.W.9).
(b) Recovery of clothes of the deceased, namely, woollen Chaddar (P.9), a bag and 5 suits Exh.P.10/1‑5 as stated by Muhammad Sharif S.I. (P.W.20) the I.O. and
(c) 'Last seen' evidence as provided by Abdul Razzaq (P.W.10) Against Muhammad Ijaz, appellant, it relied on‑‑
(i) Extra‑judicial confession sought to be proved by Imam Din (P.W.12).
(ii) Recovery of deceased's Chappel (P.8) from his house as deposed to by Muhammad Sharif S.7./I.O. (P.W.20) and Salamat Ai (P.W.13) and
(iii) 'Last seen' evidence given by Abdul Razzaq (P.W.10).
9. The appellants when examined under section 342, Cr.P.C. controverting the allegations denied the motive and recoveries etc. and asserted that they had been falsely implicated in the case. They, however, produced no evidence in their defence.
10. Learned trial Court believing the above mentioned circumstantial evidence convicted the appellants under section 302/34, P.P.C. but awarded them lesser penalty.
11. I have heard learned counsel for the appellants as well as for the State and also perused the record.
12. There is no direct evidence in this‑ case connecting the appellants with the crime, therefore, the prosecution has endeavoured to bring home to them the murder charge by adducing circumstantial evidence enumerated above. Needless to say that in a case of circumstantial evidence the accused can be convicted only if circumstantial evidence is capable of excluding all hypothesis consistent with his innocence.
13. About motive, Mist. Imam Bibi (P.W.8) mother of the deceased and Ashiq (P.W.9) brother of the deceased stated that a year before the occurrence they approached mother of Akhlaq Ahmad appellant and had demanded the hand of his sister for deceased over which Akhlaq Ahmad's family felt insulted and therefore, the appellants had killed the deceased. Mist. Imam Bibi (P.W.8) admitted in cross‑examination that prior to the death of her son (deceased) 'there was absolutely no dispute' between him and Akhlaq Ahmad appellant. She also admitted that the two appellants did not belong to one family nor they were friend of each other. Both Mst. Imam Bibi and Ashiq P.Ws. did not give the name of the girl whose hand they had demanded for the deceased. They were unable to tell if she was literate or not. In the circumstances, I am not convinced that Akhlaq Ahmad's sister's hand was demanded by them. Assuming without conceding that they had asked for it, then the motive lay on the side of the complainant party who were refused the hand of appellant's sister and not on the side of the appellants. Furthermore this piece of evidence had not been put to the appellants when examined under section 342, Cr.P.C. for explaining the same, therefore, learned trial Court had erred in law by using this circumstance against the appellants. As for the allegation that the deceased had illicit intimacy with the sister of Akhlaq Ahmad appellant, it is admitted by Ashiq (P.W.9), that he had not stated this fact during investigation, hence it is of no significance being afterthought. For all these reasons I would ignore this piece of evidence.
14. Imam Din (P.W.12) deposed about extra‑judicial confession of Muhammad Ijaz appellant. He stated that the appellant approached him at his residence 2 miles away from appellant's place and while seeking his help confessed before him that he alongwith Akhlaq Ahmad appellant had killed the deceased by strangulating him with a Muffles and threw his dead body on the road after putting it in a sack because he had illicit relations with Akhlaq's sister. This witness admitted that the deceased was his neighbourer for 12 years and Muhammad Ijaz appellant had not dealt with him earlier in any matter. He also admitted to be a friend of the Thanedar. It does not appear to me as probable that the appellant having no previous connection whatsoever with the witness would go to him for undefined help and make extra‑judicial confession. Such evidence is always treated as weak because it can be easily concocted and procured. Again the witness being neighbour of the deceased and friend of the police would be under their influence and easily made to toe their line. He cannot, therefore, be trusted.
15. Next piece of evidence against appellants is the 'last seen' evidence. Abdul Razzaq (P.W.10) stated that on I1‑12‑1983 he did masonry work at the Kothi of Akhlaq Ahmad appellant at the instance of the deceased who was his friend and that after day's work Akhlaq Ahmad appellant paid him his wages and then both appellants and the deceased accompanied him to Chowk Yateemkhana, Lahore from where he boarded a bus for Kasur, his home town. He also stated that at that time Muhammad Ijaz appellant was carrying Muffler (P.2). In cross‑examination he admitted that he was friend of Muhammad Arif deceased and that he had appeared before the Investigating Officer on 24‑12‑1983 (13 days after the occurrence) and that, too, when called by the Thanedar through a constable. He conceded that Muffler (P.2) was of common design and was available in the market and that it did not bear any special mark of identification. Obviously, therefore, the Muffler (P.2) which was found with the dead body of the deceased is not established beyond reasonable doubt that it belonged to Muhammad Ijaz appellant. As for the claim of the witness that he saw the deceased last in the company of the appellants in the evening of 11‑12‑1983 does not inspire confidence. The parents of the deceased identified the dead body on 15‑12‑1983. It is strange that the witness despite his close relations with deceased did not disclose for about two weeks that he worked at Akhlaq Ahmad's house and that he had seen the deceased last in the company of both appellants at Bus Stand Yateemkhana in the evening of 11‑12‑1983. His silence for such a long time without any explanation makes his claim of having seen the deceased in the company of the appellants on 11‑12‑1983 highly doubtful. It also looks improbable that Akhlaq Ahmad appellant (employer) had gone to Yateemkhana Bus Stand to see off his employee (Abdul Razzaq P.W.) after paying his wages. It is well‑settled that a witness cannot be believed merely because his narration is consistent unless it also appears as probable (see Din Muhammad's case 1969 S C M R 777).
16. There now remains the incriminating recoveries. Woollen Chaddar (P.9), a bag with 5 suits P.10/1‑5 were allegedly recovered from the house of Akhlaq Ahmad (appellant) while Chappel (P.8) from the H house of Muhammad Ijaz (appellant) on 20‑12‑1983. The former recovery has been narrated only by the Investigating Officer (P.W.10) and the latter by Salamat Ali (P.W.13) besides the Investigating Officer.
Salamat Ali P.W. lived 1J miles away from the house of Ijaz, the alleged place of recovery. Admittedly, no person from the locality had witnessed these recoveries. The appellants have denied recovery of these articles from them. All these articles are also of common pattern and do not bear special mark of identification showing that they belonged to the deceased. Muhammad Din (P.W.21) father of the deceased, alone has stated that these articles belonged to the deceased. The shopkeepers who sold Chappel (P.8) and woollen Chadder (P.9) etc. to the deceased have not been produced. The tailor who stitched the suits and the washerman who washed them, for the deceased has also not appeared. Mst. Imam Bibi (P.W.8) mother of the deceased and Ashiq (P.W.9) brother of the deceased have not stated that these articles were of the deceased. I, therefore, find that not only these recoveries are doubtful but these articles are also not proved beyond reasonable doubt as belonging to the deceased. The recoveries are thus of no consequence.
17. Having heard the parties' counsel this appeal was accepted and `the appellants were acquitted and released by means of short order on 10‑6‑1987 and the above mentioned are my reasons for acquitting them.
M.Y.H./A‑306/L Appeal allowed.