SAFDAR IQBAL Versus State
SOHAIL NASIR, J.--- Facts of the case are that Muhammad Siddique Sub-Inspector (Pw-10) was present at Adda-103, where Sarfraz (Pw-3) appeared and made a statement (PA). He maintained that he was 'Chowkidar' of Chak No.104; on that day at about 04:00/05:00 pm when he was returning to his house and arrived near in between watercourse Nos. 21 and 22, there was lying dead body of an unknown person whose neck was strangulated with a piece of cloth (Safa).
2. After endorsement made on complaint by Safdar Iqbal SI, it was sent to Police Station through Khadim Hussain Constable on the basis of which FIR (PA/1) No. 54 on 23.02.2011 under section 302, P.P.C. was recorded at Police Station Kassowal District Sahiwal by Muhammad Sadiq ASI (Pw-1).
3. During investigation it transpired that the dead body was of Maqbool Ahmad who was the real brother of Muhammad Yousaf (Pw-4). According to Muhammad Yousaf on 21.02.2011 at about 10:00 am Maqbool Ahmad (deceased) left the house in the company of Safdar Iqbal and Umar Hayat (appellants) where after he did not return to home. During investigation the evidence of extra judicial confession besides certain recoveries were also collected. On 31.03.2011 both the appellants were arrested by Muhammad Siddique SI and on conclusion of investigation the report under Section 173 , Cr.P.c. (Challan) was submitted in court.
4. A charge under Sections 302/34, P.P.C. on 25.05.2011 was framed against appellants for which they pleaded not guilty and demanded their trial.
5. In support of its' case prosecution had produced the following witnesses:--
Pw-1 Muhammad Sadiq ASI is the author of FIR.
Pw-2 Muhammad Imran Constable got conducted the post mortem examination of deceased.
Pw-3 Sarfraz is the complainant.
Pw-4 Muhammad Yousaf is a witness to last seen.
Pw-5 Muhammad Farooq is also a witness to last seen.
Pw-6 Noor Ahmad claimed that the appellants made confession before him and Muhammad Sadiq (given up).
Pw-7 Abdul Shakoor Patwari prepared scaled site plan.
Pw-8 Muhammad Shahbaz had drawn the photographs of crime scene.
Pw-9 Dr. Muhammad Saeed Iqbal conducted the post mortem examination of deceased.
Pw-10 Muhammad Siddique SI is the Investigating Officer.
6. Junaid Hussain, Raja Rehan, Ali Sher, Fakhar-uz-Zaman, Muhammad Hanif, Muhammad Younis and Muhammad Sadiq Siddique were given up by learned Deputy District Public Prosecutor and the prosecution's evidence was closed.
7. In their examinations made under section 342, Cr.P.C. appellants pleaded their false involvement in this case.
8. Before the case could be decided finally, Umar Hayat one of the appellants disappeared and was declared as a Proclaimed Offender vide an order dated 13.08.2014 therefore the conviction was announced to the extent of Safdar Iqbal (appellant) vide judgment dated 26.08.2014 passed by the learned Additional Sessions Judge Chichawatni District Sahiwal which he has assailed through Criminal Appeal No.62-J of 2014.
9. Later on Umar Hayat was arrested and he was also convicted by the same learned court vide judgment dated 29.04.2015 and he too has challenged his conviction through criminal appeal No.325 of 2015.
10. Both appellants were convicted under section 302(b), P.P.C. to life imprisonment each and to pay Rs. 200000/- (two lacs) each as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I. each. Benefit of section 382-B, Cr.P.C. was also extended to them.
11. Muhammad Yousaf (Pw-4) being one of the legal heirs of deceased has also instituted the Criminal Revision (262 of 2015) for the enhancement of sentences awarded to appellants.
12. As criminal appeals and revision are outcome of one and the same FIR therefore all three are being decided by way of this single judgment.
13. Learned counsel for appellants maintained that as it was a case of circumstantial evidence so the prosecution was under obligation to establish and prove every piece of evidence independently and to present it like a chain. He also added that non-proving of one piece of evidence shall destroy entire chain. Learned counsel further argued that statements of private witnesses are suffering from certain defects and serious infirmities therefore the convictions recorded against appellants cannot sustain.
14. On the other hand learned counsel for complainant and learned Assistant District Public Prosecutor jointly contended that prosecution on the strength of qualitative evidence was succeeded to prove its case beyond reasonable doubt; witnesses were having no enmity whatsoever so question of false involvement of appellants does not arise; it has been successfully established that deceased left in the company of appellants and thereafter did not return to home hence onus was on appellants to explain that how Maqbool Ahmad met his death?; appearance of both appellants before Noor Ahmad (Pw-6) and making confession is a strong piece of evidence and there was no occasion for Noor Ahmad to depose falsely against any of them; the worth and veracity of the private witnesses could not be shattered by defence despite considerable cross-examination; witnesses were firm and consistent on all the material aspects of the case; the recoveries at the instances of appellants in particular certain belongings to deceased were also successfully proved by the prosecution. They finally maintained that when all the evidences produced by prosecution duly proved are read together, it makes clear that the chain was complete one corner of each was touching the neck of deceased and other corner necks of appellants.
15. HEARD.
16. Admittedly dead body was found lying in the area of watercourse on 23.02.2011 and no one was nominated in the FIR. Story starts when Muhammad Yousaf (Pw-4) came to know about recovery of dead body from the jurisdiction of some other Police Station who then identified the same and therefore he appeared before the Investigating Officer and first time disclosed about last seen. As per his version both appellants and deceased were friends and they used to sell fruits as street hawkers; they were having visiting terms with each other; five days earlier to 21.02.2011 Safdar Iqbal (appellant) visited their house where he/Muhammad Yousaf, Maqbool Ahmad (deceased) were also present; deceased desired to purchase a motorbike; Safdar Iqbal maintained that there was a showroom of his relative at Chichawatni from where the motorbike could be purchased; on 21.02.2011 at about 10:00 am when he/Muhammad Yousaf, Maqbool Ahmad (deceased), Muhammad Farooq (Pw-5) and Ali Sher (not produced) were present in their Baithak, there came both the appellants and asked the deceased to accompany them for the purchase of motorbike at low price; Maqbool Ahmad had taken an amount of Rs.38,000/- with him and then all they left: Maqbool Ahmad did not return to home; on 22.02.2011 he/Muhammad Yousaf along with Muhammad Farooq and Ali Sher went to Chak No.2/104, and inquired from Safdar Iqbal and Maqbool Ahmad who responded that Maqbool Ahmad has changed his mind to purchase motorbike and returned from Harappa city. Muhammad Yousaf (Pw-4) went on to say that they had been searching Maqbool Ahmad and when on 25.02.2011 they came to Chak No.102-12-L the permanent resident of appellants, they were not present there; there they came to know about a dead body of some unknown person recovered by Police so they went to Police Station Kassowal and identified clothes of Maqbool Ahmad where after they arranged the shifting of dead body after seeking permission from the Magistrate. Same story was narrated by Muhammad Farooq (Pw-5) who is also the real brother of Muhammad Yousaf and Maqbool Ahmad (deceased).
17. The last seen evidence has always been considered as the weakest type of evidence unless it is proved through high standard of evidence and strongly supported from other independent sources. The conduct of Muhammad Yousaf and Muhammad Farooq in this case has been proved to be unnatural. According to their own story deceased left in the company of appellants on 21.02.2011 but did not return and they came to know about the dead body on 25.02.2011. Maqbool Ahmad was their real brother so it is not understandable that why both witnesses did not bother to inform the Police about missing of their brother? They met Safdar Iqbal on the next day who told them that Maqbool Ahmad had changed his mind and returned to home and for this reason they were worried. If this was the position, to remain silent for them and not to take on board the law enforcing agencies is a serious question having no answer by prosecution so it is reacting on their veracity.
18. Another fact which is a barrier in the way of prosecution that on 21.02.2011 it was not the first time that deceased went with the appellants. According to both the witnesses' appellants and deceased were friends who used to sell fruits as street hawkers, so it was not an abnormal act if deceased and appellants left the house together even on 21.02.2011.
19. The next piece of evidence relied upon by the prosecution is the extra judicial confession on the strength of statement of Noor Ahmad (Pw-6). What he had stated was as under: -
"I know the accused persons Safdar Iqbal and Umer Hayat now present in the court. On 08.03.2011 I along with Muhammad Sadiq PW were sitting at Chaghi Hotel, GT Road Iqbal Nagar. At about 03:00 p.m. Safdar lqbal accused and Umer Hayat accused now present in the court came there. First of all Safdar Iqbal accused confessed his guilt by stating that they had committed the murder of Maqbool Ahmad deceased in greed of money and further stated that he and Umer Hayat had brought Maqbool Ahmad deceased from his house under the pretext that they will got purchased a motorcycle on low price from Chichawatni. He further confessed that they took him to their house at Chak No.102/12-L and committed murder of Maqbool Ahmad deceased by throttling. He further confessed that he and Umer Hayat were ready to pay Diyat amount to his legal heirs and asked us to get pardon from his legal heirs. Thereafter, Umer Hayat accused now present in the court repeated the same by stating that he along with Safdar Iqbal had brought Maqbool Ahmad deceased from his house under the pretext to purchase Motorcycle on low price. He further confessed that he and Safdar Iqbal took Maqbool Ahmad to Chak No. 102/12-L and there committed his murder by throttling. Thereafter, the accused persons went away. Thereafter I and Muhammad Sadiq informed about the above said fact to the legal heirs of Maqbool Ahmad deceased. My statement also recorded by the police in this regard"
20. The conduct of Noor Ahmad also remained unnatural immediately after the alleged confession was made by the appellants. It is important to mention here that he was having no social status that for that reason appellants opted to approach him and made confession. He admitted that the deceased and complainant were his close relatives. If it was so then how was it possible for him, to spare both the appellants who made confession and why he made no effort to apprehend any of them? Although he maintained that they tried to apprehend the accused and to call the police but the appellants escaped. His said version is completely negated when it is found that he made his statement to the Investigating Officer first time on 10.03.2011 after two days of the alleged confession.
21. As evident from his examination-in-chief he and Muhammad Sadiq informed the legal heirs of Maqbool Ahmad (deceased) but the statement of Muhammad Yousaf (Pw-4) and Muhammad Farooq (Pw-5) show that they never claimed that on 08.03.2011 or 10.03.2011 or at any date in any manner Noor Ahmad ever informed them about the alleged confession by appellants on 08.03.2011.
22. Statement of Noor Ahmad also appears to be self-contradictory. In his examination-in-chief he maintained that fist of all Safdar Iqbal confessed his guilt and thereafter Umer Hayat also repeated the same facts. However in cross-examination he took another stance that only Safdar Iqbal accused made the confession before them.
23. Noor Ahmad does not appear to be a truthful and reliable witness for the reason that on one hand he maintained that he was close relative of deceased and Muhammad Yousaf etc. and at the same time he responded that he was not having the knowledge about the murder of Maqbool Ahmad as he was not told in this context. He further replied that he did not participate in the funeral of Maqbool Ahmad. He maintained that after furnishing information to Muhammad Yousaf (Pw-4) he got his statement recorded to the police on the day of confession whereas Muhammad Siddique SI/IO (Pw-10) in cross-examination without any ambiguity maintained that it was 10.03.2011 when Muhammad Yousaf, Sadiq and Noor Ahmad joined the investigation of this case and got their statements recorded under section 161, Cr.P.C.
24. In view of above even the evidence of extra judicial confession relied by prosecution is under heavy clouds of doubts so cannot be relied upon.
25. Prosecution is therefore left with the evidence of recoveries. It is important to add here that both the appellants are real brothers and were residing in one and the same house. According to prosecution story Umar Hayat, on 06.04.2011, led to the recoveries of Rs.4000/- (P-1/1-4), some intoxicated tablets (P-7), a pot (P-8) and cup (P-9) which were taken into possession vide a recovery memo (PD).
26. It appears that by showing recovery of Rs.4000/- prosecution intended to prove that it was the part of that amount which. deceased had taken with him. The currency notes under normal circumstances shall be presumed belonging to one from whom it has been recovered except if the said amount is abnormal or it is having some special marks or signs that it was belonging to some other person. It also appears that by showing the recovery of intoxicated tablets and utensils prosecution made an attempt to prove that Maqbool Ahmad was administered tablets before he was done to death but it was a futile exercise for the reason that neither tablets nor utensils were sent to any expert. Even Dr. Muhammad Saeed Iqbal (Pw-9) who conducted the post mortem examination categorically stated that there was nothing of poison or intoxicant from the dead body at the time of post mortem examination.
27. It was then 07.04.2011 one day after above recovery when Safdar Iqbal led to recovery of Rs.16300/- (P-11/1-16), colored copy of CNIC of deceased (P-13), finger ring (P-14) and wallet (P-15) and taken into possession vide a recovery memo (PF). Again about currency notes my observations are same as discussed earlier. Taking into consideration the colored copy of CNIC, ring and wallet of deceased it does not appeal to mind that why Safdar Iqbal opted to keep these articles with him which could have been easily disposed of by him while throwing at any other place rather to keep with him. These articles were not of any value so from this angle also to keep the same by Safdar Iqbal appears to be an abnormal story.
28. Finally on 10.04.2011 Umar Hayat led to recovery of motorbike (P-10) that was secured vide a memo (PE). It is not understandable that by way of recovery of said motorbike what prosecution intended to prove? Learned ADPP and learned counsel for complainant are unable to convince this Court that how recovery of motorbike is an incriminating piece of evidence in this case?
29 All above recoveries were made from one and the same house which has not been proved in the exclusive possession of any of the appellants. It is not the case of prosecution that recoveries were effected from such places those were in the exclusively knowledge of appellants and none else. Except motorbike other articles were lying in the boxes which were having no lock. At the time of recovery proceedings the house was not found under any lock and key. The site plan of place of recovery shows that only there were two rooms of this house, so it cannot be believed that if on 06.04.2011 when police party was led by appellant Umar Hayat to that house why the search of other room was not made by the investigating officer? Prosecution invited another problem when Investigating Officer maintained that on 06.04.2011 and 07.04.2011 he did not find motorbike at that place and if it was so, how the motorbike was found there on 10.04.2011?
30. Coming to medical evidence it requires no discussion for the simple reason that appellants have not denied the unnatural death of Maqbool Ahmad as they pleaded that it was an unseen occurrence. Even otherwise the medical declaration at the most is a corroborative piece of evidence which does not identify the culprits rather it tells that how and in what manners a person met his unnatural death.
31. Concluding the discussion made above, I hold that prosecution has badly failed to prove its case beyond reasonable doubt against the appellants therefore both the criminal appeals are allowed. Impugned judgments are set aside and appellants are acquitted from the case. They are in custody and they shall be released forthwith if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial court. The criminal revision is hereby dismissed.
JK/S-115/L Order accordingly.