MUHAMMAD AKRAM alias KALA Versus State

This appeal is directed against the judgment, dated 16-12-2004 passed by the learned Additional Sessions Judge, Arifwala, District Pakpattan, whereby, having tried the appellant (both in police challan case and the complaint case), he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a direction to pay a compensation of Rs.1,00,000 to the legal heirs of the deceased in default whereof to further undergo S.I. for six months. He was further convicted under section 201, P.P.C. and sentenced to seven years' R.I. Both the sentences were directed to run concurrently.

2. The prosecution story, as unfolded through private complaint case filed by Bashir Ahmad complainant, briefly stated is that his son Muhammad Yaseen was married with Mst. Shahnaz Bibi accused and was residing in Mauza Qabula; that accused Akram and Ismail were on visiting terms with the said son Yaseen and Akram accused developed illicit liaison with Mst. Shahnaz accused and deceased used to forbade them; that one year and three months ago Yaseen deceased informed the complainant that the accused had been extending threats of dire consequences to the deceased; that after some time, Yaseen deceased was missing; that the complainant inquired from Mst. Shahnaz to which she told that the deceased had gone to Lahore for labour and would return soon; that the deceased was lastly seen in the company of accused Akram alias Kala and Ismail alias Meela by P.Ws. Yaseen son of Nazir Ahmad and Shafi son of Ghulam Hussain; that the P.Ws. inquired from the accused who replied that they were going to Lahore; that he doubted that the above accused in consultation with Mst. Shahnaz Bibi abducted the deceased and had committed his murder and also caused disappearance of his dead body; that Muhammad Amin son of Bashir Ahmad, Muhammad Maqbool son of Muhammad Ramzan and Nazir Ahmad son of Ghulam Muhammad informed the complainant about six months ago that accused Akram had made extra-judicial confession before Muhammad Amin and accused Ismail before Muhammad Maqbool regarding the murder of the deceased; that both of them also admitted that they had committed murder in consultation with Mst. Shahnaz Bibi, they took the deceased from Qabula on the pretext of labour to Lahore and about 8-30 p.m. at night both the accused along with the deceased arrived at Jamber Stop, tied his hands and legs and threw him in the canal nearby; that the said Shahnaz intoxicated the deceased whereafter the deceased had become senseless; that accused Akram and Ismail waited for half an hour but his dead body did not come out of the canal and that they sought forgiveness from the P.Ws.

3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the accused to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 5 witnesses.

4. The accused, when examined under section 342,Cr.P.C. denied the prosecution case and attributed involvement to false implication and claimed trial.

5. Learned counsel for the appellant, in support of this appeal, submitted that there is a delay of 10/11 months in lodging the F.I.R.; that there is no mention of the witnesses of extra-judicial confession in the F.I.R. in spite of the said delay; that the complainant had also submitted an application Exh.D.A. but the names of the witnesses of last-seen were not mentioned; that as far as pointation of the place where the dead body was allegedly thrown the same is not admissible in evidence; that it was a case of no evidence; that on the same set of evidence Muhammad Ismail and Mst. Shahnaz Bibi have already been acquitted from the case and rule of consistency demands that the said benefit be also extended to the appellant; that no incriminating article was recovered at appellant's pointation; that the conviction and sentence awarded to the appellant is against the weight of evidence on record; that the judgment of conviction has been passed on surmises and conjectures; that the prosecution has failed to prove its case against the appellant beyond an iota of doubt and that, in the afore referred circumstances, , after having accepted the appeal, appellant be acquitted from the case.

6. On the other hand, learned counsel for the State while defending the impugned judgment of conviction submitted that there is no enmity between the parties to falsely involve the appellant in this case; that the appellant was found guilty during the investigation; that the prosecution case is corroborated by the evidence of last-seen and extra-judicial confession; that it is a well-reasoned judgment; that the same is in accord with the weight of evidence on record; that since it does not warrant interference by this Honourable Court, therefore, the appeal filed by the appellant against the said judgment is liable to be dismissed after having maintained the sentence so awarded through the impugned judgment.

7. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.

8. Case of the prosecution is that on a written complaint of Bashir Ahmad, father of deceased Yasin, F.I.R. was registered on 28-5-2003 against the appellant and his acquitted accused, namely, Muhammad Ismail and Mst. Shahnaz Bibi about an occurrence which took place 10/11 months prior to its registration. Even names of the witnesses of extra-judicial confession were not mentioned in the said delayed F.I.R. It is a case where there is no eye-witness which is based on evidence of last-seen and extra-judicial confession. Muhammad Amin appeared as P.W.3 as a witness of the extra-judicial confession before whom appellant had allegedly made extra-judicial confession. He is real son of the complainant and real brother of the deceased. To keep mum for a period of about one year is most unnatural. The complainant had also filed a complaint on 3-10-2003 where he introduced the factum of extra-judicial confession. On the same evidence, two co-accused of the present appellant, namely, Muhammad Ismail and Mst. Shahnaz Bibi have already been acquitted from the case vide the same impugned judgment. Neither the State nor the complainant have filed any appeal against their acquittal.

As far as evidence of last-seen is concerned, that was furnished by Yasin son of Nazir who is related to the mother-in-law of the complainant. So far as pointation in police custody, of the place where the dead body was recovered is inadmissible under Article 40 of the Qanun-e-Shahadat Order, 1984. Except this evidence, there is no evidence on record. Even otherwise, the evidence of last-seen is a weak type of evidence if the same is not corroborated through unimpeachable sources. To my opinion, the above set of evidence is not sufficient to convict an accused because the same cannot stand the test of judicial scrutiny.

9. After having adjudged the case from every angle and having sifted grain from the chaff, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond a shadow of doubt to sustain conviction awarded through the impugned judgment especially when on the same set of evidence two accused have already been acquitted from the case. As it was an unwitnessed occurrence, therefore, it would be unsafe and against the paramount interest of justice to place reliance on the statements of the witnesses of extra-judicial confession who are closely related to the complainant party c especially when the same set of evidence is not corroborated through some independent reliable unimpeachable evidence. Resultantly, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted from the case. He shall be released forthwith if not required to be detained in any other case.

N.H.Q./M-933/L Appeal accepted.