MUHAMMAD AFZAL Versus THE STATE

RASHID AZIZ KHAN, J.- -- Muhammad Afzal son, of Zulfiqar (25) and Muhammad Javed son of Zulfiqar (18) alongwith Manzoor Hussain son of Muhammad Hussain (25) were sent up for trial by Police Station Saddar, Pak Pattan Sharif, District Sahiwal for an offence under section 364/34, P.P.C. and section 302/34, P.P.C. Additional Sessions Judge, Pakpattan Sharif vide judgment, dated 1-12-1990 gave the benefit of doubt to Muhammad Javed and Manzoor Hussain and acquitted them of the charge. Muhammad Afzal was, however, found guilty for an offence under section 302, P.P.C. and sentenced to death with a fine of Rs.10,000 or in default of payment of fine, undergo S.I. for two years. He was further directed to pay compensation of Rs.20,000 to the legal heirs of Bashir Ahmad in default six months' R.I. He was further convicted under section 364, P.P.C. to 10 years' R.I. with a fine of Rs.10,000 or in default suffer S.I. for two years. It was directed that the fine, if recovered, shall be paid to the legal heirs of the deceased. The convict has appealed. Case is also before us for confirmation of death sentence. The complainant has filed a Revision bearing Criminal Revision No.112 of 1991 challenging the acquittal of Muhammad Javed and Manzoor Hussain. All these matters shall be disposed of by this judgment.

2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.B./1, lodged by Niaz Muhammad, P.W.7, was to the effect that he and the accused persons belonged to the same village. On Friday Muhammad Afzal accused came to the house of the first informant's brother Bashir Ahmad and took him along on the pretext of some important work, who did not come back since then though three days had passed. First informant's brother Bashir Ahmad had entered into an agreement to purchase one square of land from one Zulfiqar Ali and registry was to be completed regarding the said sale on 30-12-1989. The first informant feared that the accused persons did not wish to sell the land, therefore, they abducted his brother who might have been done to death.

P.W.9 Khizar Hayat, Sub-Inspector, .on 26-12-1989 was given the application Exh.P.B. which he endorsed to the police station for registration of a case under section 364, P.P.C. and commenced the investigation by recording the statements of the witnesses and preparing site plan Exh.P.K. He arrested Muhammad Afzal accused, who volunteered to get the dead body recovered from Chak Katorah Forest, Village Badana Gharabi, Tehsil Hasilpur. The accused pointed out the dead body, which was taken into possession vide memo. Exh.P.F. The Investigating Officer-prepared injury statement Exh.P.E. and inquest report Exh.P.D. of the dead body and thereafter sent the same for post-mortem examination. This was done on 26-12-1989. He also secured blood-stained leaves of trees from the place, and identity Card Exh.P.1 of the deceased vide memo. Exh.P.G. on the following day, i.e. 27-12-1989' Afzal accused while in custody led to the recovery of blood-stained razor P.6 from the place where the dead body was lying, which was secured vide memo. Exh.P.J. and P.J./1. He took into possession last-worn clothes of the deceased P.2 to P.5 vide memo. Exh.P.H. After recovery of the dead body section 302, P.P.C. was added. .

P.W.5 Dr. Rashid Masood Ahmad on 27-12-1989 at 8 a.m. conuucted the post-mortem examination on the dead body of Bashir Ahmad and found the following injuries:--

(1) Incised wound measuring 10 c.m. x 7 c.m. on the anterior aspect of the neck at the level of thyroid cartilage. The wound was more on the left side. Vocal cords were visible in the wound bed. The muscles and carotid vessels on the left side were also cut. Air and food passages were also cut. Hyoid hone was found in tact.

(2) Incised wound measuring 10 c.m. x 2 c.m. x muscles deep cm the left check at the level of upper border of left pinna. It was set antero posteriorly.

(3) Incised wound measuring about 40 c.m. x 5 c.m. distally and two c.m. proximally and extending from the right scapula to the pubic spine. The wound was more deep proximally and in its distal half peritoneum was visible.

(4) Incised wound measuring about 7 c.m. x 2 c.m. x muscle deep over the left sub-costal margin.

(5) Incised wound measuring about 5 c.m. x 1 c.m. x muscle deep situated below the umbilicus.

In his opinion, all the injuries were ante-mortem, caused with some sharp?-edged weapon. Injury No.1 had caused the death, which was sufficient to cause death in the ordinary course of nature. He also opined that the probable time between the injuries and death was a few minutes and the time between death and post-mortem examination was 5 to 6 days.

3. Prosecution in support of its case produced nine witnesses in all. P.W.1 Muhammad Sadiq, S.I. had partly conducted the investigation of the case-and had arrested Manzoor Hussain and Muhammad Javed on 7-3-1990, and thereafter submitted challan. P.W.2 Muhammad Ashraf, Moharrir on 27-12-1989 received two sealed parcels from the Investigating Officer which he kept in Malkhana in safe custody. P.W.3 Ziaullah, F.C. received 2 sealed parcels on 30-12-1989 containing blood-stained leaves and a razor, which were delivered in the respective offices on 31-12-1989. P.W.6 Muhammad Arshad, Patwari, had prepared site plan Exhs.P.A. and P.A./1 on the directions of the police, P:W.7 Niaz Ahmad had got the case registered and had also deposed that the deceased was seen for the last time in the company of the appellant when he took him away. Muhammad Aslam, P.W.8 had last seen the deceased in the company of the accused persons while boarding a bus. The case was investigated by Khizar.Hayat, S.I. P.W.9.

At the conclusion of the prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He produced defence evidence as well. Syed Fazal Hussain Shah, D.W.1, stated that he was Chairman of the Union Council, Hasilpur. His Dera was 2/3 Acres away from the jungle. About eleven months ago at 8 a.m. Abdul Hamid Forest Guard, informed him about the dead body lying in the jungle. The witness asked him to report the matter to the police. He further stated that nobody could identify the dead body. D.W.2 Abdul Hamid stated that he . was posted as Forest Guard in Zakheera of Chak Katora. At 7-30 or 8 a.m. when he was passing through the Kutcha Road, he saw the dead body lying in a Sarkanda bushes. He came to the metalled road and informed the Chairman of the area who was present at his Dera. He also came to the Police Station Hasilpur and informed the Moharrir/H.C. about having seen the dead body. Sheikh Abid, S.I. and 2 Constables accompanied the witness to the place and recovered the dead body. In the meanwhile, Arshad, Patwari (P.W.) also came there.

4. It was contended by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that there was no direct evidence connecting the appellant with the occurrence. The prosecution had tried to establish its case from circumstantial evidence, which was neither convincing nor possibly could lead to the guilt of the appellant. The contentions were opposed by learned counsel for the State.

5. We have heard the learned counsel at length and gone through the evidence with his assistance. Prosecution in order to establish its case has relied upon circumstantial evidence consisting of the following:--

(i) Pointation of the dead body at the instance of the appellant;

(ii) Deceased Bashir Ahmad was last seen by Niaz Ahmad, P.W.7 when the appellant had called the deceased from his house on 22-12-1989;

(iii) Muhammad Aslam, P.W.8, had last seen the deceased in the company of the appellant boarding a bus on 22-12-1989.

As far as pointing out the body at the instance of the appellant is concerned, a memo was prepared, which is Exh.P.F. It was done on 26-12-1989 and was witnesses by Niaz Ahmad, P.W.7. P.W.7 had also deposed that on 22-12-1989 he had seen his brother going out with the appellant Muhammad Afzal and thereafter he did not come back. Therefore, he got apprehensive and got the case registered on 26-12-1989 and the same day at about 10 a.m. Muhammad Afzal accused was arrested and after interrogation he volunteered to lead to point out the dead body and thereafter at about 11 a.m. they left for the recovery of the dead body. On the other hand, the Investigating Officer in his cross-examination stated that they had reached the place where the dead body was lying at about 5 or 6 in the evening when it was recovered. Surprisingly, Muhammad Arshad, Patwari, who had prepared the site plan Exhs.P.A. and PA./1, in cross-examination stated that on 26-12-1989 he reached the place of recovery of dead body at 10 a.m. when Abdul Hamid, a Forest Guard, had informed the police with regard to the lying of the dead body near the Jungle. The witness alongwith others came to the spot and saw the dead 'body. The police arrived within half an hour and took away the dead body at 11-30 a.m. A perusal of the statement of this witness casts a serious doubt with regard to the authenticity of the prosecution version. According to the prosecution version the appellant was arrested on 26-12-1989 at 10 a.m. and at 11 a.m. He volunteered to lead to the recovery of the dead body. He was taken to the spot and the dead body was pointed out by him between 5 and 6 p.m. On the other hand, the Halqa Patwari stated that they learnt about the dead body at 10 a.m. and 11-30 a.m. the Police Station of Hasilpur had removed the dead body from the spot, and in such circumstances the prosecution evidence that it was pointed out at 6 p.m. is a big lie. The Patwari had further stated that he had recorded this fact of finding the dead body near the Forest, in his daily register as well. Learned counsel for the State, when confronted with this situation, had no answer. Another point which has not been explained by the prosecution was that the post-mortem examination on the dead body was conducted on 27-12-1989 at 8 a.m. In cross-examination, the doctor admitted that he had not mentioned the name and rank of the police officials who had brought the dead body. He admitted that in the inquest report the Investigating Officer had signed in English, but later on when the dead body was received by Khizar Hayat, S.I., he signed in Urdu. He had to admit that he had conducted the post-mortem examination and prepared the report on loose papers, whereas it was required to be done on a register. He admitted that according to his post-mortem examination it was serial No.13 but he was not aware whose post-mortem examination was conducted at serial No-12 or 14. He did not know anything about them. We have noticed that there is no plausible explanation whatsoever to show why post-mortem examination was recorded on loose papers. The only explanation which can be available is that it was conducted before the prosecution allegedly recovered the dead body and subsequently earlier post-mortem report was suppressed and subsequent report was prepared and recorded on loose papers. It was in violation of the rules. Niaz Ahmad, P.W.7 has been contradicted by Muhammad Arshad, Patwari, P.W., according to whom the dead body, was discovered at 10 a.m. on the same day. We have no reason to disbelieve the Patwari, specially when he had recorded this fact in his Roznamcha Waqiati. Since the witness has been belied on an important issue, therefore, the recovery of razor P.6 at the instance of Muhammad Afzal appellant also becomes doubtful because it was witnessed by Niaz Ahmad, P.W.7 only.

For what has been discussed above, we find that the prosecution has not been able to establish its case at all. Therefore, giving the benefit of doubt, C we accept the appeal and set aside his conviction and sentence. The appellant shall be released forthwith if not required in any other case. Death sentence is not confirmed.

For the same reasons, Criminal Revision is dismissed.

H.B.T./M-1955/L ??????????????????????????????????????????????????????????????????? Appeal allowed.