MUHAMMAD ARIF Versus THE STATE
Muhammad Arif son of Karam Din was convicted and sentenced to life imprisonment under section 302/34, P.P.C. alongwith co-accused and a fine of Rs.10,000 was imposed. In default of payment of fine, he was to undergo further R.I. for one year; in case of realization of the amount of fine, half was ordered to be given to the heirs of the deceased as compensation; the appellant was also awarded two years' R.I. and a fine of Rs.1,000 under section 382/34, P.P.C. by the learned Sessions Judge, Sheikhupura in case F.I.R. No.161/91 under section 302/382/201/34, P.P.C. Police Station Bhikhi, District Sheikhupura vide judgment, dated 17-4-1993; hence this appeal by Muhammad Arif.
2. The brief facts of the case according to complaint Exh.P.1 lodged by Fazal Hussain, P.W.5 are that deceased and the complainant used to sell cloth on bicycles from place to place and used to earn their livelihood; on 9-4-1991 at about 8-00 a.m. Muhammad Hussain, deceased, Muhammad Hanif, P.W.7 and given up P.W. Muhammad Sardar, all residents of village Lagar who also used to sell cloth on bicycle went to village Feroze Wattooan for the sale of cloth. Muhammad Hanif, P.W.7 and given up P.W. Sardar returned to their village but Muhammad Hussain deceased did not return, upon which the complainant got concerned and inquired about his brother from said Muhammad Hanif and Muhammad Sardar. Both informed the complainant that they and the deceased had gone to village Dhop Sari at about 3-00 p.m. and in their presence, Muhammad Hanif and Muhammad Arif accused took Muhammad Hussain, deceased alongwith them towards their house for purchasing cloth from him. On this, the complainant took given up P.Ws. Muhammad Idrees and Rehmat Ali and Dilbar Hussain, P.W.4 to village Dhop Sari and went to Muhammad Tufail of the same village where Muhammad Hanif and Muhammad Arif, accused were called in the Baithak of said Muhammad Tufail. The accused were inquired about Muhammad Hussain but they did not give any clue in that regard. The complainant party, however, continued their efforts for the recovery of Muhammad Hussain deceased and ultimately on i1-4-1991 Muhammad Hanif, accused appellant disclosed before them that he and Muhammad Arif accused had taken the deceased to the house of Muhammad Arif where they strangulated him with an electric wire by wrapping the same on his neck resulting into his death. Muhammad Hanif appellant further disclosed that they deprived the deceased of a bundle of cloth worth Rs.3,500 and a bicycle costing Rs.1,500 and then during the darkness of night, they packed the dead body of Muhammad Hussain in a gunny bag, tied it with the said bicycle and threw it in Head Roshan Din. Muhammad Hanif appellant was accordingly captured.
3. After recording the F.I.R. Exh.PA.; P.W.10 Mujahid Raza, S.I. proceeded to Village Dhop Sari where he recorded the statement of Muhammad Hanif accused and the statements of P.Ws. Muhammad Hanif appellant led the Investigating Officer to Rajbah Head Roshan Din and pointed the relevant place and also got recovered from there the dead body of Muhammad Hussain and the bicycle of the deceased. P.W.10 prepared inquest report Exh.P.1. of the deceased on the same day i.e. 11-4-1991. He took into possession a gunny bag Exh.P.6, bicycle Exh.P.7, a pair of shoes Exh.P.B./1-2 and an electric wire Exh.P.9 on 11-4-1991 vide recovery memo. Exh.P.E. The dead body was sent by the Investigating Officer for post-mortem examination. He also recorded the statements of witnesses of the recovery of the dead body and the bicycle. The Investigating Officer then inspected the place of occurrence. He also got prepared site plans Exh.P.H. and Exh.P.H./1 and the site plans of the place of recovery Exh.P.G. and Exh.P.G./1. The S.I. also took into possession last worn clothes of the deceased Shalwar Exh.P.1, shirt Exh.P.2 and vest Exh.P.3 vide recovery memo. Exh.P.B. On 6-5-1991 Arif accused was arrested by the S.I. the accused while in custody led to the recovery of Gathri (bundle of cloth) Exh.10/1-18 on 6-5-1991 which was taken into possession vide recovery memo. Exh.P.F. Thereafter, the Investigating Officer was transferred and the remaining investigation was conducted by P.W.3 Muhammad Iqbal S.I. of the said police station. Muhammad Arif accused while in custody led to the recovery of iron rod Exh.P.4 from his residential house which was taken into possession vide recovery memo Exh.P.C. and wrist watch Exh.P.5 was also taken into possession vide the same memo The investigation was completed by him and challan of the case was submitted accordingly.
4. Muhammad Arif appellant when confronted with the prosecution case, pleaded innocence and stated that he has been falsely involved as the deceased was murdered by unknown persons.
5. At the trial, the prosecution examined as many as 12 witnesses to prove its version and gave up Muhammad Idrees, Rehmat AN, Muhammad Iqbal, Bashir Ahmad, Muhammad Sardar, Mubarak Ali and Muhammad Tufail P.Ws. as unnecessary witnesses and tendered in evidence the report of Chemical Examiner Exh.P.L. P.W.1 Muhammad Anwar, I-dead Constable Moharrir, P.W.2 Mubarak Ali, Constable, P.W3 Muhammad Iqbal, P.W.6 Muhammad Ismail, Patwari, P.W.7 Muhammad Hanif, P.W.9 Rabnawaz and P.W.13 Muhammad Jamil are the formal witnesses who have supported the prosecution version.
6. P.W.11 Dr. Shaukat Hayat, then M.O., D.H.Q. Hospital, Sheikhupura performed post-mortem examination of the dead body of Muhammad Hussain deceased on 12-4-1991 at 9-45 a.m. and found that rigor mortis was not present. Partial post-mortem staining was present on the back and two ligature marks were also present all around the neck. The following injuries were also found on the dead body:--
(1) Lacerated wound 2 c.m. x.5 c.m. muscle deep on the right eyebrow.
(2) Two ligature marks all around the neck upper part, which were 2 c.m. apart.
All the injuries were ante-mortem and caused with blunt weapon. Samples of stomach, small and large intestines, liver, kidneys and spleen etc. were taken by the doctor and handed over to the police for sending the same to the Chemical Examiner for detection of poison if any. The report of the Chemical Examiner is Exh.P.L. according to which poison was not detected in the above visceras. According to doctor death had occurred due to asphyxia and severe shock; injury No.2 was sufficient to cause death in the ordinary course of nature.
7. The statement of Muhammad Arif appellant was recorded under section 342, Cr.P.C. The appellant stated that he is innocent; they had never taken the deceased to their house and that no extra-judicial confession was ever made by him in this case before any person. The appellant also denied the recoveries as mentioned above were effected at his instance. He pleaded that he has been falsely implicated in this case due to suspicion. According to him the dead body of Muhammad Hussain deceased was found by the public floating in the canal and on the receipt of the said information the police came to the spot and recovered the dead body alongwith some articles and subsequently planted the said articles to him and co-accused. The appellant did not offer himself as his own witness for recording statement under section 340, Cr.P.C. and also did not produce evidence in defence.
8. I have heard the arguments of learned counsel for the appellant as well as of learned State Counsel and have perused the record with their able assistance.
9. The learned counsel for the appellant contended that having regard to the circumstances under which the co-accused (hence acquitted) came forward to surrender himself and made extra-judicial confession before the P.Ws. cast a serious doubt on the bona fides of prosecution case. Furthermore, the co?-accused hence acquitted retracted his extra-judicial confession; as the evidence of prosecution has already been found false in respect of the co-accused Muhammad Hanif; hence is also to be rejected in case of the appellant in hand.
10. The learned counsel for the State vehemently opposed the arguments advanced by the learned counsel contending that the statement of the co?-accused hence acquitted before the police is not only in conformity as to the circumstances of the crime, but also to the identity of the appellant and recoveries were also made from him and relied upon case Abdul Majid and another v. The State PLD 1973 SC 593.
11. Bearing in mind the dictum laid down in the aforementioned case; I now proceed to consider the corroboration that had been furnished in the case in hand. It is pertinent to observe that co-accused Muhammad Hanif is not an approver and the dictum laid down in supra case relates to the testimony of an approver. The co-accused Muhammad Hanif hence acquitted was arrested on 11-4-1991; dead body was recovered on the same day and incriminating articles were also recovered on the same date. The appellant was admittedly arrested on 6-5-1991 and while in custody as alleged led to the recovery Exh.P.F. The co-accused Muhammad Hanif neither confirmed the contents of extra-judicial confession nor mentioned the role attributed to the appellant in his statement under section 342, Cr.P.C. before the trial Court; rather retracted the so-called extra-judicial confession.
12. True, the corroboration of co-accused/accomplice need not be of all the circumstances of the crime. It is sufficient if there is confirmation as to the material circumstances of the crime and of the identity of the accused in relation to the crime. It must be evidence which implicates him that is which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner accused committed it in this case the aspect of corroboration of evidence that the appellant committed the crime is missing. ?
The learned counsel for the State conceded that is no on record against the appellant except the confessional statement made by an accused may be used against other co-accused as circumstantial evidence; which means that it can be taken into consideration as a corroboration piece of evidence. But it is a settled law that the confessional statement "alone" as held in case Arif Nawaz Khan and others v. The State PLD 1991 FSC 53 cannot form the "sole basis" for the conviction of the other co-accused and more so when the alleged confession is tainted with doubt as to its voluntary nature, and above all, retracted subsequently.
14. Resultantly, this being a case of no evidence, the appeal is accepted. The conviction and sentence passed against the appellant is hereby set aside; the appellant be released forthwith if not required in any other case.
N.H.Q./M-2542/L ?????
Appeal accepted.