SAEED AHMAD Versus THE STATE

This appeal is directed against the judgment, dated 28-8-1995 passed by Ch. Fayyaz Ahmad Bhutta, learned Additional Sessions Judge, Faisalabad whereby he convicted the appellant under section 302(b), P.P.C. and sentenced him to 25 years' R.I. with the benefit of section 382-B, Cr.P.C. for the murder of Munawar Ali Khan on 7-8-1994.

2. The brief facts are that a report about the occurrence was lodged by Muzaffar Ali Khan i.e. the son of the deceased on 9-8-1994 before Allah Rakha S.-I. Police Station, Sargodha Road, Faisalabad at the spot when the latter had reached there on 'receiving information about the aforesaid murder. It was contended by the complainant that his father Munawar Ali Khan deceased left the house in the morning on 7-8-1994 and did not return till evening. The complainant started searching the deceased and contacted all the relatives, but without any success. The search continued for about two days. On 9-8-1994 a paternal cousin of the complainant namely Rana Saeed Ahmad Khan P.W.5 informed the complainant that he had seen the deceased at about 2-00 p.m. on 7-8-1994 in the company of the accused Saeed Hajjam, while entering his house. The aforesaid Rana Saeed Ahmad Khan had told the deceased that he was going to Lahore and would return in a day or two. On receiving this information, the complainant went to the house of accused, but found that the same was locked. He climbed to the top of the neighbouring house of Mazhar Ali and saw a gunny bag tied with a tent, (Shamiana). Foul smell was coming front that side The complainant, his cousin Rana Saeed Ahmad Khan P.W.5, Mahmood Ahmad and Rana Abdul Marian (given up P.Ws.) and a number of persons from the Mohalla gathered there, when the police arrived at the spot. The S.-I. Allah Rakha had broken the lock and entered the house. The Shamiana was opened and a gunny bag was recovered from it. On opening the bag a hacked dead body was brought out. Both the legs and arms were cut and separated from the trunk of the body. The head was also missing from its trunk. On closer examination of the dead body, a silver ring was identified on the little finger of the right hand of the deceased. A healed up wound scar was also detected on the left shin of the deceased. The complainant thereupon identified the dead body of the deceased to be that of his father.

3. The motive alleged by the complainant showed that the accused had borrowed Rs.50,000 from the deceased on the basis of cordial relations between them. The deceased demanded the aforesaid amount from the accused, which led to the commission of his murder by the accused, his wife Mst. Kalsoom and his father Ghulam Hussain, alongwith some unknown persons. The murder was allegedly committed after the deceased was called by the accused in his house deceitfully and done to death in a cruel manner. The dead body could not bed disposed of and was left in the Dehori (Porch) of the house, before the inmates managed to escape.

4. The police investigation led to the conclusion that the murder was committed by the appellant convict whereas the other two named persons i.e. Mst. Kalsoom his wife and Ghulam Hussain his father alongwith other unknown persons were found innocent. The case was sent to the Court for trial in which Mst. Kalsoom and Ghulam Hussain aforementioned were acquitted under section 265-K, Cr.P.C. by the learned Additional Sessions Judge. The trial, however, proceeded against the appellant/convict.

5. The prosecution collected blood-stained earth from the Kotha of the appellant/convict on 9-8-1994 vide memo. Exh.P.E. in the presence of Rana Saeed Ahmad Khan P W.5 and Allah Rakha P.W 9 and Mahmood Ahmad given up P.W. The house of the appellant/convict was opened after breaking the lock of the main gate on the same day. The blood-stained 'Rassi' P.2, Shamiana P.3 1 and gunny bag P.4 were also taken into possession vide memo. Exh.P.D. on the same date, in the presence of the aforesaid witnesses. The blood-stained silver ring P.17 belonging to the deceased was removed from the dead body by Allah Rakha S.-I./Investigating Officer and taken into possession vide memo. Exh.P.G. on the same day to the presence of the aforenamed witnesses. The blood-stained clothes P.5 to P.16 were secured vide memo. Exh.P.F. on the same day. On the pointation of the appellant/convict the head of the deceased was recovered on 10-8-1994 from his residential house from a ' Deg' vide memo. Exh.P.H., which was identified by Rana Saeed Ahmad Khan and the given up P.Ws. Mahmood Ahmad and Abdul Manan. The blood-stained Bugda (Churra) P.18 was got recovered by the appellant/convict on 20-8-1994 from inside of an iron box lying in his residential Kotha. It was taken into possession vide memo. Exh.P.I. in the presence of Rana Saeed Ahmad Khan and Allah Rakha S.-I. (P.Ws.) and Mahmood Ahmad given up P.W.

6. Apart from the aforesaid circumstantial evidence the prosecution had relied upon the evidence of Rana Saeed Ahmad Khan P.W.5, who had last seen the deceased in the company of the appellant/convict The statement of Muzaffar Ali Khan (P.W.6) complainant was referred to prove the motive and recovery of the dead body from the house of the appellant/convict. The medical evidence was examined to show that the dead body was cut into pieces with sharp-edged weapon.

7. The analysis of the evidence examined at the trial by the prosecution will show that it relied upon the last seen evidence, the recovery of blood?stained earth, the weapon of offence, the blood-stained clothes and the other incriminating articles such as hacked dead body and head of the deceased, which is separated from the main trunk like two arms and two legs.

8. The learned counsel for the appellant/convict has submitted that the prosecution has miserbaly failed to prove its case against the appellant/convict beyond any reasonable doubt. Firstly he contended that Rana Saeed Ahmad Khan is a close relative of the deceased and the complainant. He had allegedly last seen the deceased in the company of the appellant/convict. However, his statement was alleged to be contradictory in its material details. In this respect, it was pointed out that during cross-examination the witness had stated that he got it recorded before the police that he had told Muzaffar Ali Khan P.W. that he had seen Munawar Ali Khan deceased entering into the house of Saeed Hajjam alongwith the latter. However, upon confrontation, it was not so recorded before the police in Exh.D.A. which showed that he had made improvement in his statement in order to make it more acceptable. He denied to have informed the police about the occurrence but upon confrontation, it was found in his statement that he had informed the concerned police station. He denied that he had stated before the police that Abdul Marian, Mahmood Ahmad and Muzaffar Ali P.Ws. had informed the police about the occurrence. However, when confronted it was so recorded in his statement Exh.D.A. It was also pointed out that according to the witness, the accused was brought at the spot on 10-8-1994 in the custody and he led to the recovery of head of the deceased placed in a ' Deg' lying in his residential room. The head was taken into possession by the police in his presence vide memo. Exh.P.H. The witness had denied that they had cordial relations with the accused except that he was a Mueen of the village and as such used to serve them. On the contrary, the complainant stated that the deceased and the accused had cordial relation and in pursuance of that a loan of Rs.50,000 was given to him by the deceased. It was also admitted that the house of the accused was situated in the Abadi Deh and was surrounded by the residential houses. The house of the accused measures 1-1/2/2 Marlas and consists of a courtyard with his residential room. He also stated that there were 25/30 Degs lying under the shade of ladders. The deg from which the head was recovered was not taken into possession by the police.

9. The learned counsel for the appellant/convict further pointed out that the statement about the recovery of the head and the number of ' Degs' is inconsistent with the site plan Exh.P.A. got prepared by the police. According to the aforesaid site plan, no'. Deg' is shown in the residential room of the appellant/convict from where the head of the deceased was recovered. On the contrary, there were four ' Degs' lying under the ladders in the courtyard According to P.W.5, there were 25/30 'Degs' lying there. It was, therefore, contended that the witness was belied by the document prepared, by the draftsman at the instance of the witnesses. Likewise the crime weapon was recovered from the same residential room from where the clothes P.5 to P.16 were recovered. The recovery was seen only by Rana Saeed Ahmad Khan P.W. and nobody from the village was associated. It was therefore, allegedly done in violation of section 103, Cr.P.C. According to the learned counsel for they appellant/convict, the last seen evidence was not only lacking in its truthfulness but was also the result of preliminary investigation at the spot and was given by an interested witness being related closely to the deceased and the complainant of the case. Since there was no plausible corroboration from the circumstantial evidence, therefore, it was highly unsafe to rely upon such evidence to send a person to gallows. The evidence of the Investigating Officer P.W.9 was also assailed on the ground that no independent person from the locality was associated with the incriminating recoveries The total reliance was placed on the closely related witness, although the place of murder was situated in a village Abadi. In such a situation,. non-association of the independent persons from the locality was fatal to the case of the prosecution allegedly when the statement of the complainant was admittedly recorded after conducting preliminary investigation and inquiry about the occurrence from the persons gathered ground. According to the Investigating Officer a large number of persons had gathered at the spot from whom preliminary investigation was conducted and then the statement of the complainant was recorded at the spot. Such a statement' had allegedly no value in the eyes of .law, because it would be deemed to be a cooked up and manoeuvred affair. It was, therefore, submitted that the prosecution had failed to prove its case beyond any reasonable doubt, against the appellant/convict particular when his co-accused were acquitted.

10. Reference was also made to the plea of the accused that his house was broken by the police in his absence, while he had gone to Badhana Police Station Wahga in order to attend the marriage ceremony of some relative. In this regard, he produced Nikah Deed of Mst. Razia with Muhammad Khalid which was solemnised on 10-8-1994. He claimed to be innocent particularly when his two co-accused being his family members were declared innocent by the police during investigation and were acquitted by, the Court under section 265-K, Cr. P.C.

11. The teamed counsel for the State defended the impugned judgment on the ground that there was last seen evidence in this case supported by the recovery of weapon. of offence, which was found to be stained with human blood according to the report of Serologist. The dead body was also recovered from the house of the appellant/convict which further linked him with the occurrence. Although the motive was not proved, but still it would allegedly not reflect adversely upon the merits of the prosecution case particularly when be-headed dead body and the head was recovered from the house of the appellant/convict, the head being recovered amt the instance of the appellant/convict, who had also led to the recovery of weapon of offence from his residential house. It was, therefore, contended that the, prosecution had proved its case beyond any reasonable doubt and that the defence taken by the appellant/convict was not only hollow but meritless.

12. I have considered the foregoing submissions raised at the Bar. It is clear from the foregoing facts that the deceased was done to death in a most brutal manner. It is, however, to be seen whether or not this awful occurrence was committed by the appellant/convict. In this respect, it may be pointed out that the deceased had left his house on the morning of 7-8-1994 and did not return till evening which raised suspicion with the members of his family, who started for his search. They remained in search for two days and inquired from different places and contacted a number of relatives but no clue was found. It was only after two days of the occurrence that on 9-8-1994 Saeed Ahmad Khan P.W. being the first cousin of the complainant allegedly returned from Lahore and informed that the deceased was last seen in the company of the appellant/convict while entering his house. However, as stated above, his statement was not consistent regarding his first version. He made certain improvements in respect of last seen evidence vis-a-vis entering of the deceased in the house of the appellant/convict. He also discredited himself by saying that the head of the deceased was recovered from a Deg (cauldron) lying in the residential room of the appellant/convict. However, the site plan did not show any such ' Deg' lying in the aforesaid room nor it was ever taken into possession by the police: On the contrary, four Degs were shown in the site plan lying under the ladders, whereas according to this witness a number of degs were lying there. There is nothing on record to show that actually Rana Saeed Ahmad Khan had left for Lahore and that he had 'returned after two days. However, two witnesses in whose presence Rana Saeed Ahmad Khan P.W. had seen the deceased entering the house of the appellant/convict have not been produced by the prosecution and were given up. As such reliance on the solitary statement of Rana Saeed Ahmad Khan P.W. would not be possible nor it would lie In the interest of safer administration of criminal justice. The appellant/convict had contended in his statement under section 342, Cr.P.C. that he was arrested by the police on 11-8-1994, whereas according to the police he was arrested on 10-8-1994. The appellant/convict as pointed out above had taken the plea that he had gone out of the village to attend the marriage ceremony for which he has placed on record Nikah Deed. However, no evidence was produced that the appellant/convict had actually attended that marriage ceremony. But it would be necessary to make a reference to a petition (Exh.D.B.) moved before the Illaqa Magistrate for, obtaining physical remand of the appellant/convict. This petition was moved by the D.S.P./C.I.A., Faisalablid on 23-8-1994. It shows that the accused was arrested by the local police on 11-8-1994 and that the weapon of offence had already been recovered from him. Since his co-accused were not yet arrested, therefore, further remand was prayed, in order to get the other accused arrested in the case on the pointation of the appellant/convict. The perusal of this petition shows that according to the local police the appellant/convict was arrested on 11-8-1994 and not on 10-8-1994 as they have claimed. This fact, therefore, lends support to the contention of the appellant/convict that he was away from his house on 10-8-1994 in connection with some marriage. It is for that reason that his house was locked * and was broken open by the police in the presence of the complainant side and the other villagers. The house of the appellant/convict was admittedly broken on 9-8-1994 and all the incriminating articles such as dead body, silver ring of the deceased, the broken lock, gunny bag, torn out tent, string and the blood-stained clothes were taken into possession the same day: It is also clear that there was a single residential room in the house. It is strange that the weapon of offence could not be recovered on the aforesaid date nor the head of the deceased was recovered from the ' Deg', which was admittedly lying there. Had these things been there, those should have been taken into possession on that very date i.e. 9-8-1994. The non-recovery .of these things, on that date would create serious doubt regarding their presence and there subsequent recovery at the instance of the accused particularly when according to D.S.P., C.I.A. (Exh.D.B.) the accused was arrested on 11-8-1994, whereas such recoveries were allegedly effected on his pointation on 10-8-1994. This makes the recoveries from him highly doubtful and cannot be relied upon particularly when these have been effected without calling any independent person from the locality and were only attested by a close relative of the deceased and the Investigating Officer. Such type of recoveries become tainted piece of evidence, which cannot be used to support another tainted piece of evidence rendered by the recovery witness Rana Saeed Ahmad Khan when he stated that he had last seen the deceased in the company of the appellant when he had allegedly left for Lahore. His evidence as already pointed out above does not appear to be truthful nor trustworthy for the inconsistencies pointed out above. The giving up of two independent witnesses further makes the prosecution case doubtful qua the appellant/convict. It is particularly so when the other two named accused i.e. wife of the appellant and his father have already been acquitted by the learned trial Court, under section 265-K, Cr.P.C, as the charge against them was found groundless. They have also been found innocent during-the police investigation. This shows that the prosecution case did not stand on sound footing and was rambling about even to involve the innocent persons against whom there was no evidence. The unknown accused were never brought to book nor it was disclosed as to who they could be. In such a situation, the entire prosecution case remains shrouded in mystery and is not based on any convincing evidence as pointed out above against the appellant/convict. The motive has already been discarded by the learned trial Court. It does not appear to be very convincing that there would be cordial relations between an elite and a Mueen of the village. Hence, the story about the loan stands- discredited particularly when Rana Steed Ahmaa Khan had denied any cordial relation between the deceased and the appellant/convict. Hence the motive against the appellant/convict has not been proved. The other circumstantial evidence such as last seen, recovery of weapon of offence and recovery of dead body from the locked house will not safely link the appellant with the occurrence beyond any reasonable doubt. This being the blind murder, having no plausible or visible link for the involvement of the appellant/convict, the case remains unproved beyond any reasonable doubt by the prosecution. The appellant/convict, therefore, deserves, benefit of doubt and the same is extended to him. Accordingly this appeal is accepted. The conviction, and sentence passed upon the appellant/convict are set aside. He is undergoing the sentence aforesaid and shall be set at liberty forthwith if no more required, in any other case.

H.B.T./F-46/L ????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.