MST. SAKINA BIBI Versus MUHAMMAD NAZIR AND 4 OTHERS
ORDER
The revision petition is directed against the order, dated 13-2-1986 of Additional Sessions Judge, Sargodha whereby learned Additional Sessions Judge acquitted the respondents, who were tried by him under section 302/149, P.P.C. for having allegedly murdered Zafar Iqbal son of petitioner on 21-6-1984.
2. Muhammad Rafiq father of Zafar Iqbal deceased made a report at Police Station, Sadar Shahpur on 22-6-1984 that Muhammad Nazir, Shafi, Muhammad Akram, Khalid and Maqsood had come to his house at 9-00 p.m. on the previous night on a tonga and had taken away Zafar Iqbal saying that they are going to take bath in the canal. and that at 1-00 a.m. (midnight) Ghulam Hussain father of Muhammad Nazir, respondent, had come to his house to inform him that Zafar Iqbal had drowned in the canal. He stated that he went to the canal alongwith Ghulam Hussain and Haji Muhammad Aslam. He also stated that they had been able to search the dead body of Zafar Iqbal with the help of Mumtaz and Nawaz divers.
3. Ahmad Yar, A.S.I. recorded report on the daily diary register and proceeded to the spot for holding proceedings in accordance with the provisions of section 174 of the Code of Criminal Procedure. He recorded the statements of Zulfiqar brother of the deceased, Mst. Sakina mother of the deceased and some other persons present there, and moved for autopsy on the dead body of Zafar Iqbal.
4. Dr. Safdar Ali who performed autopsy, opined that, 'death was due to drowning which caused asphyxia and death'. He had also noted lacerations and abrasions on the upper lips, nose and around the face. The abrasions and lacerations were opined to be simple. While appearing at the trial, during cross-examination stated that the injuries could be the result of striking against some hard thing. He further stated that the abrasions could also be the result of striking against thorny bushes.
5. The A.S.I. after holding enquiry, did not proceed further to register the case. However, Mst. Sakina moved the authorities, including the District Magistrate, levelling allegations that her son had been murdered. The District Magistrate deputed Assistant Commissioner for holding judicial enquiry. On the basis of the enquiry report, a case was registered at Police Station Shahpur on 30-12-1984.
After necessary investigations the challan was put to Court.
6. At the trial, prosecution in all examined seven witnesses Statement of Ahmad Yar, A.S.I. was recorded as C.W. 1 The gist of the statement of Dr. Safdar Ali, who had performed autopsy and who appeared as P.W.1, has been noted above.
Muhammad Husnain, Patwari who had prepared the site plan appeared as P.W.2. Mehr Muhammad Nawaz, Assistant Commissioner, who had conducted the judicial enquiry, appeared as P.W.3. Muhammad Nawaz, Malah (boatman) who had brought out the dead body from: the canal water, appeared as P.W.4. According to him, he had brought out the dead body on the pointing out of Muhammad Nazir respondent, who was brought to the canal by Haji Muhammad Aslam. Mst. Sakina mother of the deceased appeared as P .W.5, and stated that Muhammad Nazir respondent had come to their house one year seven months ago and had asked that Zulfiqar her elder son was asking for cigarettes and that Zafar Iqbal should accompany him. According to her, Zafar Iqbal went with him alongwith cigarettes on a bicycle, followed by her son Khizar Hayat. According to her, Khizar Hayat returned home half or one hour thereafter and told her that when they had reached near sugarcane field near the canal, Maqbool, Shafi. Akram and Khalid accused had joined` them and they had caught Zafar Iqbal and had taken him inside the sugarcane field. She stated that on receiving this information she went to the sugarcane field but could not find Zafar Iqbal there. She further stated that an old man named Siddiq told her that said persons had thrown a person in the canal and one of them had been taken by some other persons to Shahpur. She stated that she went to Shahpur bazar where Nazir was present alongwith many persons and on query Nazir had told her that he had not committed sodomy on Zafar Iqbal, but his co-accused namely Maqsood, Akram, Shafi and Khalid had done so and that they had thrown him in the canal. According to her, Nazir had made confession before Haji Muhammad Aslam P.W. also. She also stated about the recovery of dead body from the canal, and of her having submitted applications to the authorities against the police for not registering the case.
Ghulam Hassan P.W.6 stated that he had identified Shafi, Nazir, Akram, Maqsood and Khalid in the light of the truck, carrying a person and that when he had enquired from them, Shafi had threatened him. He stated that feeling afraid, he took shelter behind a bush and so they threw that person in the canal.
According to him, four of those persons thereafter ran away but he succeeded in apprehending Nazir who told him that the four accused who had run away had committed unnatural offence with Zafar Iqhal and thereafter had thrown h im in the canal. According to him, he took Nazir to main bazar Shahpur where 51st. Sakina was also present and Nazir made confession before her as well as Haji Muhammad Aslam.
Khizar Hayat, Inspector of Police stated about having registered the F.I.R. of having arrested the accused and of having submitted challan against them.
Ahmad Yar, A.S.I. gave the account about the proceedings conducted by him under section 174 of the Code of Criminal Procedure.
Mst. Sakina was duly confronted with her previous statement and the contradictions found therein were highlighted.
7. The respondents in their statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence.
8. Learned trial Court after discussing in threadbare the evidence of all the witnesses came to the conclusion that the prosecution had failed to prove the case.
9. Learned counsel for the petitioner conceded that the case against the respondents other than Nazir, was on a very weak footing. In fact he did not argue the petition for setting aside their acquittal. However, with regard to Nazir respondent, learned counsel contended that there was evidence of his having been seen with the deceased last, and that there was evidence of extra-judicial confession made by him before Mst. Sakina and Haji Muhammad Aslam.
10. It is clear from the resume of the prosecution evidence that there is no ocular evidence in this case neither anything incriminating was recovered from any of the respondents. No evidence of motive for the occurrence was led at the trial.
The extra-judicial confession said to have been made by Nazir respondent is contradicted by the medical evidence, in that no sign of sodomy was noted or found by Dr. Safdar Ali who had performed autopsy on the dead body of the deceased. (It may be noted that the dead body of the deceased was recovered from the canal within a few hours after his having been drowned there).
The alleged extra-judicial confession even otherwise has no legal value because it was exculpatory, in that Nazir respondent is said to have stated that sodomy was committed by the other four accused and not by him. Moreover, Nazir respondent during his statement under section 342, Cr.P.C. had denied to have ever made such a statement. In the circumstances, the evidence of extra-judicial confession, which is contradicted by the medical evidence, which is exculpatory and which was denied to have been made by Nazir respondent, carries no weight.
The contention of learned counsel that there was evidence of the deceased having been seen last in the company of Nazir respondent, again does not advance the case of the prosecution in any manner. Mst. .Sakina was found to have made a different statement earlier before the police during investigation, and even before the Enquiry Magistrate. She had named other persons as well who had taken the deceased to canal for taking bath. Nazir respondent was made a scape-goat only at the trial. The statement of Mst. Sakina, which otherwise does not inspire confidence, in this connection, does not find corroboration from anything on record.
After considering the contentions of learned counsel for the petitioner, on going through the record, and after having perused the impugned judgment, I am clearly of the view that no case for interference with the judgment of acquittal by way of exercise of revisional powers has been made out. There is no merit in this petition. The same is dismissed.
S . A . / S-125 / L Petition dismissed.