FAREED KHAN Versus STATE
The present criminal appeal calls into question the legality and propriety of the judgment, dated 31-3-1991, whereby the learned Additional Sessions .fudge, Bhakkar, while acquitting the co-accused Shahbaz Khan by giving him the benefit of doubt, had convicted the appellants under section 302/34, P.P.C. and sentenced each of them to life imprisonment with a fine of 10,000 or in default thereof to further R.I. for three years. Half of the fine, if recovered, was directed to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was also awarded to the appellants.
2. The brief facts leading to the present criminal appeal are that the mother of Muhammad Ramzan, complainant, namely, Mst. Waziran deceased, had been divorced by the father of the complainant and consequently she had contracted marriage with Shahbaz accused, who had already three sons, namely, Ahmad Khan, Muhammad Khan and Matah. Out of the second wedlock, Mst. Waziran Bibi, had given birth to Mst. Shamim P.W.11. Shahbaz accused had married his daughter Mst. Shamim with Hayat Baloch, but 'due to some dispute with her in-laws, she had come back to her father. Thereafter Shahbaz accused alongwith Mst. Waziran deceased and Mst. Shamim had shifted to Nautak Daggar with Sher Khan accused. After 3/4 months Sher Khan accused alongwith Fareed Khan accused pressed upon Shahbaz accused and Mst. Waziran deceased to marry Mst. Shamim with his son namely, Iqbal, but Mst. Waziran deceased refused. Due to this refusal Fareed Khan and Sher Khan accused became annoyed. Shahbaz accused had, however, agreed to the said proposal. About one month prior to the occurrence, Mst. Shamim was confined in the Dera and Mst. Waziran deceased and Shahbaz were enticed away by Fareed accused and were taken towards Chak No.53/TDA on the pretext of seeking some girl for marriage. At the time when Mst. Waziran was taken away she was wearing two Taviz around her neck, one black ring on her foot, flowery shirt of sheet, white Chaddar and coloured Jersy. On the way Fareed Khan accused had drowned Mst. Waziran in the canal with the help of Shahbaz accused. On the next day i.e. 12-2-1989 Fareed Khan and Shahbaz accused met the complainant and Muhammad Khan P.W. in Daggar Nautak. Mst. Shamim P.W. was enquired about her mother, Mst. Waziran and she told that Mst. Waziran was taken by Fareed and Shahbaz. Consequently, Fareed Khan arid Shahbaz accused were enquired about Mst. Waziran, but firstly, they put off the matter and stated that she had gone somewhere. But the complainant developed a suspicion on the disclosure of Shamim P.W. that Mst. Waziran was done to death by Farced Khan, Shahbaz Khan and Sher Khan accused in prosecution of their common object. Resultantly, the complainant alongwith Muhammad Khan P.W. and Ejaz Khan contacted all the three accused and asked theta to satisfy them as to what happened with Mst. Waziran and all the three confessed their guilt that due to refusal of Mst. Waziran to give the hand of her daughter she was drowned in a canal, and offered a hand of a woman as well as apology but the complainant having not accepted the offer of accused got registered the instant case.
3. On the receipt of the challan the learned trial Court summoned the accused and after careful consideration of the entire case, found all of them prima facie connected with the commission of offence under section 302/34, P.P.C. and consequently framed charge. The accused did not plead guilty and demanded their trial under the law.
4. At the trial prosecution examined as many as 13 witnesses. P.W.1 Ashiq Hussain, Sanitary Inspector on 15-1-1989 had got buried an unattended dead body in his supervision in his official capacity, after receiving the same through police vide receipt Exh.PA. P.W.2 Ghulam Siddique, Draftsman on 18-2-1989 had prepared the site plan Exh.P.B. and Exh.P.B./1.
5. P.W.3 Habib Ullah had. deposed that on 11-1-1989 at about 7-30 p.m. he alongwith Muhammad Hussain P.W., while coming back from Chak No.60/61-TDA, had seen all the three accused in the company of Mst. Waziran deceased near bridge falling in between Chak No.53/54-TDA. Mst. Waziran deceased, being the sister of his mother, had told him that they were going to settle the engagement of son of Fareed Khan accused. Thereafter, he alongwith Muhammad Hussain P.W. proceeded to their houses. He had further deposed that thereafter they did not see Mst. Waziran deceased and it transpired that she was drowned in the canal. He had further deposed that in his presence, during the investigation of the case, Fareed Khan and Shahbaz accused had pointed out the place where Mst. Waziran deceased was drowned by them. P.W.4 Muhammad Hussain had deposed that he was with P.W.3 Habib Ullah, when while coming back from Chak No.60/61-TDA, they had met the accused in the company of Mst. Waziran deceased. This witness had supported the statement of P.W.3, Habib Ullah.
6. P.W.5 Zahoor Ahmad, A.S.I., on 13-1-1989 being Moharrir at Police Station City Layyah, had received statement of one Mureed Hussain Exh.P.D. through Ghulam Mustafa, Constable and had incorporated the same in the Roznamcha, On 15-1-1989 after post-mortem of the dead body of an unidentified female, he had received the clothes, phial and a sealed packet for keeping in the safe custody. On 23-1-1989 he had handed over phial as well as sealed packet to Hazoor Bakhsh, Constable for onward transmission to the office of Chemical Examiner. On 9-2-1989, he had received the clothes, two shirts P.1/1-2, Shalwar P.2, ring P.3, Koka P.4, Taviz P.5 and rubber ring P.6, from Habib Ullah, S.I., for safe custody.
7. P.W.6 Oazi Mureed Hussain had deposed that on 13-1-1989 at about 6-00 p.m. while he was going towards Chobara Road on bicycle, he saw a dead body floating over the water near bridge Angrenwali, and after pulling out and handing over the same to the persons, who were also attracted, he himself had made the report Exh.P.D. to the police. According to him the dead body was of a female aged 60/65 years. She was wearing two shirts P.1/1-2, Shalwar P.2, Taviz P.5, Koka P.4, ring P.3, rubber ring P.6, which were taken into possession vide memo. Exh.P.F., duly attested by him.
8. P.W.7 Muhammad Khan had deposed that Mst. Waziran deceased was the sister of his wife, who about four months prior to the occurrence, was living with her husband, Shahbaz accused, at the Dera of Sher Khan accused. Their daughter, Mst. Shamim was also living-with them as she had some dispute with her husband Sher Khan accused pressed upon Mst. Waziran deceased to marry Mst. Shamim with his son after getting divorce from her husband and that this fact was told to him by the deceased. According to this witness, as Mst. Waziran deceased had refused to accept this proposal, all the three accused had drowned her in the Thal Lower Canal. On 12-1-1989 when he alongwith Ramzan P.W. had visited the Dera of Sher Khan, they were informed by Mst. Shamim that all the three accused had taken Mst. Waziran deceased with them on the preceding evening, after having locked her in a room. According to this witness all the three accused had jointly confessed that they had murdered Mst. Waziran deceased due to her refusal to marry Mst. Shamim with the son of Sher Khan accused. He had further deposed that in his presence Shahbaz Khan and Fareed Khan accused had pointed out the place where they had drowned Mst. Waziran and the site plan of that place Exh.P.G. was duly thumb-marked by him, alongwith Habib Ullah, P.W.3.
9. P.W.8 Muhammad Ramzan, being complainant of this case, had reiterated the contents of the F.I.R. and testified that the same was recorded at his instance. P.W.9 Dr. Fateh Muhammad had conducted the post-mortem on the dead body of Mst. Waziran deceased on 15-1-1989. M.L.R. Exh.P.H. and sketch of injuries Exh.P.H./1 are in the hand of this witness.
10. P.W.10 Asmat Ullah, S.I. had deposed that on 13-1-1989 he had recorded the statement of Mureed Hussain Exh.P.D., regarding the information about an unidentified dead body of female lying on the western bank of the canal, and after sending the same through Ghulam Mustafa, F.C. for entry of a Rapt, conducted proceedings under section 161, Cr.P.C., prepared the injury statement Exh.P.J. and inquest report Exh.P.K. and sent the dead body to mortuary. He also got photographs of the dead body P.7/1-2. After post-mortem, he had taken into possession the clothes etc. of the deceased, vide memo. Exh.P.F. and sealed phial and packet vide memo. Exh.P.L. He had also issued proclamation about the availability of unidentified dead body, vide memo. Exh.P.M.
11. P.W.11 Mst. Shamim Akhtar had supported the case of the prosecution by stating that Mst. Waziran deceased was her real mother. Sher Khan and Fareed Khan accused, on the refusal of her mother, Mst. Waziran deceased, had beaten her alongwith her mother and had also threatened her father. Her father, Shahbaz accused had agreed to their proposal and then all the three accused, after locking her at the Dera, had taken her deceased mother alongwith them to some unknown place; and that as her father had come back all alone and her mother did not return, therefore, she developed suspicion that her mother had been murdered by Sher and Fareed accused. Thereafter she had called her brother Muhammad Khan and had narrated the incident of beating her as well as her mother, Mst. Waziran deceased, and that of taking away Mst. Waziran deceased.
12. P.W.12 Hazoor Bakhsh, Constable had escorted the dead body of an unknown woman to the mortuary and had deposed to that effect. P.W.13 .Habib Ullah, S.I. had recorded the F.I.R. Exh.P.G. and the statements of the P.Ws. under section ' 161, Cr.P.C. According to him he had recorded the statements of the P.Ws. at Layyah and got entered a Rapt in Roznamcha Exh.P.O. On 1:+-2-1989 he had arrested Fareed and Shahbaz accused, who on 18-2-1989 had pointed out the place where they had drowned Mst. Waziran deceased.
13. After tendering in evidence report of the Chemical Examiner Exh.P.P., the prosecution had closed its case.
14. In their statements under section 342, Cr.P.C. all the three accused had denied the entire prosecution case. Fareed Khan accused had deposed that as he had helped Shahbaz accused in the abduction of Mst. Waziran deceased, therefore, he has been involved in this case; whereas Sher Khan accused had deposed that due to the old enmity with the police,. he has been implicated in the case. Shahbaz Khan accused had deposed that he had abducted Mst. Waziran deceased, who was firstly married with Imam Bakhsh, and that being the relatives of her first husband, the P.Ws., due to the said enmity, got him involved in this case and have deposed against him. AV the three accused did not produce any witness in their defence nor did they record their own statements under the provisions of section 340(2), Cr.P.C. Sher Khan accused, however, tendered in evidence copy of Registrar Haqdaran Zamin coupled with Khasra Girdawari Exh.D.G. and Exh.D.H. He had also filed an affidavit on 20-3-1991 to rebut the statements of Muhammad Khan and Muhammad Ramzan P.Ws. to the effect that Shahbaz Khan accused was his tenant.
15. The learned trial Court, after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellants, while acquitting their co accused, as stated above.
16. The learned counsel for the appellants and the State were heard at length in 'support of their respective case and the evidence on the record perused with their assistance. .
17. A perusal of the evidence on the record has established that the evidence in respect of extra-judicial confession was joint, which is not admissible evidence under the law, as P.W.7 Muhammad Khan and P.W.8 Muhammad Ramzan have categorically stated that the accused had jointly confessed before them of having killed the deceased by drowning her in the canal. Furthermore, the "Wajtakkar" evidence through the testimony of P.W.3 Habib Ullah and P.W.4 Muhammad Hussain suffers from dishonest improvements and contradictions and that, therefore, the said P.Ws. cannot be relied upon as rightly held by the learned trial Court. In addition thereto, the, mere testimony in respect of the motive by P.W.11 Mst. Shamim cannot prove the charge against the appellants, even if her testimony is accepted in its entirety, as the mere proof of motive cannot form the basis of the conviction of the charge under section 302, P.P.C. Therefore, it is hereby observed that there is no evidence on the record to directly link the appellants with the offence alleged. Consequently, it is hereby held that the prosecution has failed to prove the charge against the appellants.
18. Pursuant to the above discussion, the present criminal appeal is hereby allowed. Resultantly, the appellants stand acquitted of the offences 8 charged. The appellants are on bail, their bail bonds stand discharged accordingly.
N.H.Q./F-154/L Appeal allowed.