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Criminal Appeal No. 914 of 1972, decided on 29th November 1974.
‑‑ S. 302‑[Murder‑case]‑No eye‑witness of occurrence; F. I. R. recorded at spot after due deliberation and investigation; blood stained toka recovered from a public place; and shirt of accused not blood‑stained‑Conviction based on "last seen" evidence and recovery of articles, held, not maintainable in circumstances. [Evidence].
S. 27‑Recovery‑Toka recovered from unattended place, recovery memo attested by witness interested and living seven miles away‑Recovery, held, not reliable‑Criminal Procedure Code (V of 1890, S. 103.‑[Recovery].
S. 21‑Confession, extra judicial‑Accused's extra judicial confes sion sought to be corroborated by witness declared hostile Confession, held, not to be cited upon.‑[Confession].
S. A. Awan for Appellant.
C. A. Saeed for A.‑G. for the State.
Mushtaq Ahmad was tried under section 302, P. P. C. for the murder of Mst. Ghulam Fatima, by the learned Additional Sessions Judge, Lahore who vide his judgment dated 26‑10‑1972 convicted and sentenced him to life imprisonment. The convict has filed the present appeal against his convic tion and sentence.
2. Briefly the prosecution story as stated in the F. I. R. (Exh. P. E.) lodged by Allah Bakhsh (P. W. 5), brother of the deceased, recorded by S. I. Nazar Sherazi (P. W. 9), on 4‑4‑1968, at 8‑15 a. m., at Police Station Model Town, Lahore, is as follows. Allah Bakhsh complainant along with his sister Mst. Ghulam Fatima deceased and her two sons Muhammad Aslam (P. W. 4), aged 12 years and Muhammad Ilyas, aged 3 years, were residing in plot of 10‑K Model Town, in a motor garage. The husband of the deceas ed was residing in Haram Gate, Multan and due to their strained relations the deceased was putting up with the complainant. The complainant and his nephew Muhammad Aslam P. W. used to sell newspapers. The complain ant was sleeping inside the room while Muhammad Aslam P. W. and the deceased were sleeping outside. At about 4 a.m. the accused‑appellant who was residing in the Jhuggi of Mst. Razia in the neighbourhood asked Mst. Ghulam patina deceased that sloe should send Muhammad Aslam and the complainant to bring newspapers. The accused protested as to why the accused was interfering in their personal affairs. The accused wanted to marry the deceased and had approached the another of the complainant but the proposal was turned down. The complainant and Muhammad Aslam P. W. left for the Canal Bank to bring newspapers and the accused was standing near their room. The complainant came back at about 7‑30 or 8 a.m. while Muhammad Aslam P. W. came back earlier. He found the read body of the, deceased lying on a cot. The deceased had injuries on her body. On checking tip the luggage the complainant found that some clothes and chocolate color transistor bearing No. 1595 alongwith its receipt was missing.
3. S. I. Muhammad Nazar Sherazi after recording the formal F. I. R. came to the spot and prepared the inquest report (Exh. P. H.) and took into possession cot and bedding of the deceased and sent the dead body to the mortuary for post‑mortem examination through F. C. Bashir Ahmad, Abdul Ghafur (P. W. 3).
4. Dr. Nasrullah performed the post‑mortem examination on the dead body of the deceased. The doctor could not be examined by the Committing Magistrate or by the trial Court because he had proceeded abroad. Abdus Sattar Dispenser (P. W. 8), appeared who Identified the signatures of the doctor on the post‑mortem report. The doctor had found 12 injuries on the body of the deceased. Injuries 1 to 11 were caused by a sharp‑edged weapon while injury No. 12 was caused by a blunt weapon. The cause of death according to the doctor was the cardio‑respiratory failure due to asphyxis caused by compression of trachea which was sufficient in ordinary course of nature to cause the death. The injuries inflicted enhanced the process of death. Two vaginal swabs were taken and sent to the chemical examiner which were found to be stained with semen vide report Exh. P. M.
5. S. I. Muhammad Hussain (P. W. 12) partly investigated the case and on 5‑4‑1968 he joined the accused in the investigation and the accused got recovered clothes (P. 1 to 16) and radio (P. 17) which were taken into possession vide metro. Exit. P. A. The accused was wearing shirt (P. 18), stained with something and was washed and the same was taken into posses sion vide memo. Exh. P. B. The accused also led to the recovery of blood stained toka (P. 19) which was secured vide memo. Exh. P. C. The blood stained shirt and the toka were found to be stained with human blood vide the report of the Serologist (Exh. P. N.). The recoveries were attested by
Nafees Ahmad (P. W. 11). Khushi Muhammad (given up) besides the S. 1. Muhammad Hussain (P. W. 12).
6. The appellant denied his guilt and stated that he has been falsely implicated in this case. In answer to a question as to why this case was filed against him, the appellant made the following statement at the trial :‑
"Mst Ghulam Fatima deceased had love affairs with me and she wanted to get married with me and I was also willing but her parents and brothers and husband were not willing and strongly resisted the marriage, on which they conspired and the husband Ghulam Qadir and one relative Kala and Allah Bakhsh committed the murder of Mst. Ghulam Fatima and falsely implicated me in order to save their own lives and to take revenge from me. I was maintaining; Mst. Ghulam Fatima for the last one year prior to the occurrence and she was not willing to reside with her husband and when they came to know about the love affairs of Mst. Ghulam Fatima with me, they committed her murder. P. W. Nafees is the helper of Allah Bakhsi and Muhammad Aslam P. Ws. because they were working as vendors with him. Allah Bakhsh and Muhammad Aslam P. Ws. were inimical towards him and the same was the case with Mst. Zainab Bibi P. W. The Police fabricated this case at the instance of the complainant party against me."
He did not produce any defence.
7. The learned Additional Sessions Judge convicted the appellant on the circumstantial evidence of last seen by Muhammad Aslam (P. W. 4) acid Allah Bakhsh (P. W. 5) and the recoveries at his pointing out.
8. I have heard the learned counsel for the appellant and also the State Counsel and have gone through the evidence on tile record. It may be mentioned here that there is no eye‑witness in this case. The main contentions of the learned counsel for the appellant are that F. I. R. was recorded at the spot after due deliberations find investigation, that the recovery of blood‑stained toka was recovered from a place which was acces sible to everybody and that the shirt of the accused was not blood‑stained as noticed by Nafees Ahmad (P. W. 11).
9. I see force in the contentions of the learned counsel for the appel lant. Muhammad Aslam (P. W. 4) has stated that he was a hawker in those days and he used to distribute the newspapers in Model Town. On the day of occurrence the appellant called him and asked him to bring the news papers, and his mother Mst. Ghulam Fatima objected and she was also in anger. He alongwith his uncle Allah Bakhsh (P. W. 5) left for Lohari Gate for bringing the newspapers. He returned at about 7 a.m. and took his breakfast and when he collected the beds he found his mother lying on the charpoy and had injuries on her body. He raised an alarm on which mohalladars gathered there. He has stated chat he had not seen Mushtaq Ahmad appellant after his departure from the house early in the morning. In cross‑examination this wanes admitted that when he raised an alarm the police had arrived there on the information given by Amin Lodhi, resident of the adjacent bungalow, on telephone. He has also stated that the state ment of his uncle was recorded at the place of incident and that the complain ant had reached the house half an hour after the arrival of the police. He has also admitted that the police had inspected the field containing the crop and that he did not know if the police had recovered blood‑stained earth or the toka from the field. The witness has also stated that Nafees Ahmad P. W. was their employer. That they had very good relations with him and that he used to help them and was on visiting terms with them. From the testimony of this witness it is quite clear that police had reached the spot before the arrival of Allah Bakhsh complainant arid that the police at the place of incident recorded the statement of Allah Bakhsh P. W.
10. Next we take up tile testimony of Allah Baksh (P. W. 5). He leas stated that on the day of occurrence he was sleeping inside the room and the deceased was sleeping outside. The appellant asked the deceased that she should ask the witness and Muhammad Aslam P. W. to bring the newspapers and the deceased was in anger and remarked that he had no business to tell them. This witness has stated that he along with Muhammad Aslam P. W. left for Canal Bank to bring newspapers and he came back at about 7‑30 or 8 a.m. while Muhammad Aslam had arrived there half an hour earlier. He found the deceased lying murdered. He has identified the articles (P. 1 to 16) as belonged to his sister while transistor radio as belong ing to him, which he had purchased on hire‑purchase system from Afzal Corporation. In cross‑examination this witness has stated that the clothes of Muhammad Ilyas son of the deceased, aged 3/4 years, were stained with blood but these clothes were never taken into possession by the police. He also stated that the people of Mohalla had not gathered there before his arrival, but his nephew Muhammad Aslam P. W. on this point contradicts him. He has also admitted that it was correct that he put his signa ture on the F. I. R. at the spot. He further stated that his statement was recorded at the spot as to how his sister was murdered. This witness asserted to have stated before the C. M. that when they lead gone to bring the newspapers the appellant was standing outside his room but he was duly confronted with his statement wherein it was not so recorded. This witness did not remember having stated before the C. M. that on the night of occur rence he woke up to urinate and somebody opened the door. He had suspected some person outside his room and he saw the appellant going towards his hut. He was duly confronted with his statement before the C. M. wherein it was not so recorded.
In view of the above discussion the evidence of last seen is of no avail to the prosecution because these two witnesses, have made improvements upon their statements at the trial.
11. As regards the recoveries of clothes (P. i to 16), transistor (P. 17), blood‑stained shirt (P. 18) and blood‑stained totca (P. 19), we have the testi mony of Nafees Ahmad Qureshi (P. N. 11), who is employer of the com plainant and his nephew Muhammad Aslam P. W. He has stated that he joined the police investigation of this case and went to the Loco Shop quarters where the appellant was present. The appellant came out of the; quarter and the police officer asked him to hand over articles and the accused produced a box containing the clothes and the radio transistor which were secured by the police. The shirt of the appellant was also taken into possession. On interrogation the appellant offered to produce the toka and led the police to the Jawi crop near 11‑K Model Town, Lahore from where the totca was recovered and secured by the police. This witness, in hiss cross‑examination, has admitted that Loco Shop quarters from where tile articles were recovered were at a distance of 7/8 miles from his residence and that no person from the locality was made to attest the recovery memo. It is further stated that he had not seen the shirt (P. 18) of the appellant having stained with blood etc. This witness is a resident of Model Town and as admitted by him he had attested the recovery memos. The provisions of section 103, Cr. P. C. have not been complied with and no reliance therefore, can be placed on the testimony of this witness of the recoveries. As regards the recovery of toka (p. 19), it was recovered from an open field, which was accessible to everybody, and, therefore the recovery of their article is also of no help to the prosecution.
12. Tile Investigating Officer Muhammad Hussain (P. W. 12) has admitted that the quarters from where the appellant was arrested might be at a distance of 7/8 miles from Model Town and that when knocked the door of Railway quarter, Muhammad Ali carne out and the witness asked aim to send the appellant and then the appellant came out alongwith the box. He has also admitted that some persons of the locality had gathered at the time of the recovery of the articles (P. 10 to 17) but none of them was made to attest the recovery memo. It is also admitted by the witness that the number of transistor (P. 17), which was recovered, was 1592 but in the F. 1. R. Its number was given as i595. He also admitted that the place of recovery of toka (P. 19) was an unattended place. He denied the suggestion that the recoveries were fake and had been planted to implicate the appellant.
13. A crude attempt was made by the Investigating Officer by producing Muhammad Rashid (P. W. 10) to testify that the appellant had made an extra judicial confession before him but the witness did not support the prosecution case at the trial. He was declared hostile and cross‑examined. Fabrication of evidence in the cases and especially in the murder cases are always disapproved by this Court rather such things cast doubt on the integrity of the police officers. I am at a loss to say that the conduct of the police in this case was Plot beyond reproach.
14. Tile upshot of the above discussion is that the prosecution has failed to bring home the guilt to the accused appellant, I, therefore, accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be released forthwith provided he is not required in any other case.
15. A copy of this judgment be sent to the Provincial Government for initiating proceedings against the police officials.
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