MUHAMMAD ASIF Versus State
ORDER
SOHAIL NASIR, J.--- Undoubtedly this appeal is hopelessly time barred. As it has been filed through Superintendent Central Jail, Sahiwal and there is the question of liberty of appellant beside the fact that on perusal of record it is a case of no evidence at all, the limitation is condoned.
Muhammad Asif (appellant) along with Muhammad Ramzan and Munir Ahmad had faced trial in case FIR No.630 (PA/1) recorded on 20.12.2005 under section 302/34, P.P.C. at Police Station Harappa District Sahiwal and on conclusion thereof vide a judgment dated 09.10.2006 passed by the learned Additional Sessions Judge, Sahiwal he was convicted under section 302(c), P.P.C. and sentenced to undergo 10 years R.I. It was directed that appellant will pay an amount of Rs.30,000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also extended to him. On the strength of same judgment Munir Ahmad and Muhammad Ramzan were acquitted.
2. Feeling dissatisfied from judgment of learned Trial Court appellant has approached this Court through the instant Jail appeal.
3. Prosecution's case is that Muhammad Sharif (PW-1) submitted an application to SHO on 20.12.2005 where he maintained that about eight months earlier appellant came to his house where his brother Muhammad Aslam (PW-2) was also present; appellant asked Bashir Ahmad his/complainant's son to go to Lahore for search of work; both left the house on cycle and moved towards Harappa; Asif stated that he will send back the cycle from Harappa Morre; after about five months appellant returned to village and when he/complainant asked him about Bashir Ahmad, appellant informed that he was all right and used to work with him; he/complainant was not satisfied so through a Panchayat he demanded return of his son; on 19.12.2005 at about Esha time, Khalil Ahmad (PW-5) and Saif Ullah came to him/complainant and told that after Maghrib prayer when they were moving towards Dera Abadi and reached near 07-Marlas scheme, they found there appellant, Ramzan and an unknown person; all they were talking by naming Bashir Ahmad and saying that they had committed his gatl-i-amd. Complainant alleged that he had strong suspicion that all accused were responsible for the murder of his son.
4. After registration of FIR the case was investigated but dead-body was not recovered, which till today is a mystery.
5. A charge under section 302/34, P.P.C. on 20.04.2006 was framed against appellant and his co-accused for which he pleaded not guilty where after prosecution had produced Muhammad Sharif/complainant (PW-1), Muhammad Aslam (PW-2), Fakhir Hayat Patwari/ draftsman (PW-3), Muhammad Rafique/ a witness of extra judicial confession (PW-4), Khalil Ahmad (PW-5), Liaqaat Ali/Inspector (PW-6), Ijaz Mubashir Inspector (PW-7) and Abdul Hameed SI (PW-8).
6. After giving up Saif Ullah, Jahangir and Sabir Ali, prosecution's evidence was closed.
7. In his emanation under section 342, Cr.P.C. appellant pleaded his false involvement.
8. HEARD
9. At the very outset, I feel no hesitation to say that it is a case of no evidence and the so-called evidence produced is too weak that cannot be relied in a case of minor offence so what to say about a case of capital charge. Bashir Ahmad whether dead or alive, it is a mystery as the case in hand is the one where there was no dead-body.
10. So far as complaint and FIR are concerned, it is based on suspicion and it is settled principle of law that suspicion however strong may be, it cannot take the place of legal proof.
11. The complaint indicates that information received to Muhammad Sharif was from Khalil Ahmad (PW-5) and Saif Ullah (not produced). The most important question is that if both said witnesses had heard the conversation amongst the accused about the murder of Bashir Ahmad on 19.12.2005 and they also informed the complainant on the same day after Esha time, why then and there police was not taken into confidence by providing the information? Why complainant kept waiting and approached police at 04:00 pm that means after about 18 hours of the information he received. It was not a normal news for him so he was not supposed to restrain himself but to inform the police then and there.
12. Coming to Khalil Ahmad it is found that he is close relative of the complainant so it is not believable that in his presence the accused while standing at a public place were talking with a loud voice while Khalil Ahmad and Saif Ullah heard their conversion about the death of Bashir Ahmad.
13. Coming to Muhammad Rafique (PW-4) who claimed that all accused came to him on 26.12.2005 and made a confession, it is an admitted fact that he first time opened his mouth on 22.02.2006 that means after two months of the occurrence and even before that he did not bother to inform complaint about the said episode. On this ground alone evidence of extra judicial confession has lost its wroth.
14. Recovery of Cycle at the instance of appellant on 05.01.2006 is also of no value because prosecution is completely failed through any reasonable and convincing evidence or by producing any document that the cycle was of Muhammad Bashir.
15. Similarly the recovery of dagger at the instance of appellant on 15.01.2006 is of no consequence because it is a case where no dead body exists at all.
16. The learned Additional Sessions Judge also committed a serious illegality when he convicted the appellant under section 302(c), P.P.C. by holding that mitigating circumstances were there. It appears that the learned trial court was not able to differentiate provisions of sections 302(b) and 302(c), P.P.C.
17. However, fact remains that it is a case of no evidence so conviction cannot sustain, hence this criminal appeal is allowed. Impugned judgment dated 09.10.2006 is set aside. Appellant is acquitted from the case. He is on bail and his surety is discharged from terms and conditions of bail bonds.
SA/M-226/L Appeal allowed.