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Criminal Appeal No. 277 and Murder Reference No. 67 of 1980, decided on 18th January, 1983.

--- S. 411-Recovery-Evidence, value of-Conviction of accused under S. 411, P. P. C. on statement of a Police Officer alone, held, not sustainable.-[Recovery].

---Ss. 26 & 27-Confession-Recovery, admissibility of-Evidence regarding pointing out of place of occurrence by accused while in Police custody with no consequential recovery of incriminating article, held, not admissible in evidence in circumstances., -[Re covery].

S. 302----Recovery, evidentiary value of---Recovery of alleged weapon of offence, in absence of any recovery of empty from spot or any favourable opinion of Fire-arm Expert, held, of no avail to prosecution.-[Recovery].

--S. 302-Murder-Benefit of doubt-Evidence of solitary prosecu tion witness remaining uncorroborated and such witness also making improvement at trial to bring her statement in line with alleged re covery of incriminating articles-Recovery of crime weapon also discarded for absence of recovery of any empty from spot-Mere pointing out of place of occurrence by accused without recovery of any incriminating articles, held, would not bring guilt home to accused-Accused given benefit of doubt and acquitted, in circumstances.-[Benefit of doubt].

Raja Muhammad Anwar and Raja Muhammad Sabir for Appellants.

Kh. Shaukat All for the State.

Dates of hearing: 17th and 18th January, 1983.

Ahmad Khan (P.W. 25) father of Mehdi Khan deceased made statement Exh. P N to Tasaddiq Hussain, S. I. (P.W. 26) at 2-30 during the night between 30/31-3-1976, on the basis of which formal F. I. R. Exh. P. M. was registered at Police Station, Lalamusa on the same night at 2-45. Ahmad Khan (P. W. 25) who did not claim to be eye witness of the occurrence, stated that he was informed by Muhammad Afzal son of Rehmat Khan that he alongwith his father Rehmat Khan were coming to their village from Lalamusa and when they reached near Khooh Loharan near the Railway Line they saw Riasat Ali son of Muhammad Khan and Muhammad Ashraf alias Achha son of Muhammad Alam firing with pistols at his son Mehdi Khan, as a result of which he died on the spot and the accused ran away. According to the P. W. he reached the spot anti after having seen his son lying murdered started for the Police Station. He met the Sub-Inspector on way who recorded his statement Exh. P. N.

2. Ahmad Khan (P. W. 25) in his statement Exh. P. N. stated that motive for the occurrence was that Riasat Ali's brother Muhammad Bashir had murdered Nasar Mahmood, a brother of his son-in-law Arshad Mahmood appellant, in which Mehdi Khan deceased was a witness. Riasat Ali who had returned from abroad 12-13 days prior to his occurrence, pressed Mehdi Khan deceased for a compromise in the murder case of Nasar Mahmood and for not deposing against his brother, which Mehdi Khan deceased refused, as a result of which Riasat Ali had threatened him that he will not spare him alive.

3. Muhammad Ashraf alias Achha was arrested on the basis of state ments of the eye-witnesses mentioned in the first information report. The investigation continued changing hands. Ultimately the two persons named in F. I. R. were got discharged after having been found innocent. Appellant Irshad and acquitted accused Taj Din, father of Arshad Mahmood appellant.

Ahmad Khan his uncle and one Allah Ditta were arrested by the Police on 28-8-1976. Arshad Mahmood appellant was arrested on 29.8-1976.

During the investigation wrist watch Exh. P. 10 belonging to the deceased was recovered at the instance of appellant Irshad, which was taken into possession vide memo. Exh. P. L. The recovery memo. was attested by Muhammad Sadiq Police Inspector (P.W. 27), Fazal Dad (P.W. 13) and Sardar Khan (P.W. 16). Arshad Mahmood appellant led to the recovery of carbine Exh. P. 6 which was taken into possession vide memo. Exh. P. J. attested by the above-named P. Ws.

4. After the completion of investigations the challan was put to Court against Taj Din, Ahmad Khan and Allah Ditta (acquitted accused) and both the appellants. The learned trial Court vide judgment, dated 1-3-1980 acquitted Taj Din, Ahmad Khan and Allah Ditta of all the charges, convicted appellant Irshad under section 411, P. P. C. only and sentenced him to undergo one year's R. I., convicted Arshad Mahmood appellant under section 302, P. P. C. for having caused the death of Mehdi Khan deceased and sentenced him to death. Arshad Mahmood appellant has also been sentenced to pay a fine of Rs. 5,000 in default whereof to suffer 2 years' R. I. The fine, if recovered, has been ordered to be paid as compensation to the heirs of the deceased.

Both the appellants have filed Criminal Appeal No. 277 of 1980, and the learned Sessions Judge has also sent up Murder Reference No. 67 of 1980. Both the matters are being disposed of by the same judgment.

5. At the trial the prosecution in all produced twenty-eight witnesses. Ahmad Khan complainant, the father of the deceased who appeared as P. W. 25 went back ......

arrested five months after the occurrence. He denied that he had seen Riasat and Ashraf (named in the F. I. R.) murdering the deceased.

6. The story put forward at the trial by the prosecution, briefly, is that the deceased was a prosecution witness in the case of murder of Nasar Mahmood, brother of Arshad Mahmood appellant and that on a Punchayat convened by the relatives of Bashir, the accused in the murder case of Nasar Mahmood, Mehdi Khan deceased had promised that he will try for a compromise and in case he fails, he will not support the prosecution case and will resile from his statement. This conversation in the Punchayat was overheard by Arshad Mahmood appellant, who with the help of other four persons, challaned with him, murdered the deceased. Circumstantial evidence has been produced.

7. Sher Ali Lamberdar (P. W. 14) and Lal (P. W. 15) during their evidence in Court claimed that Arshad Mahmood (appellant) and Taj Din and Ahmad Khan (acquitted accused) had made confessional statement before them at Sabri Goods Adda, and that they had come for help a few days thereafter also. The learned trial Court has disbelieved their evidence on the ground that joint confessions made are not admissible in law and that they were not made in exact words used by the accused. The learned trial Court relied upon Iqbal Hussain v. State (P L D 1969 Lah. 217) and Sardar v. the State (P L D 1980 Lah. 40) wherein it has been laid down that the confessions if not a stated in exact words, have no weight. Apart from the reasons given by the learned trial Court the other factor is that they had for the first time appeared before Mohammad Sadiq inspector of Police (P. W. 27) on 11-8-76 about five months after the occurrence. In the circumstances their evidence is of no consequence and does not advance the case of the prosecution against Arshad Mahmood appellant in any manner. Since the State .has not filed appeal against the acquittal of appellant Irshad under section 302, P.P.C. and against the acquittal of three other persons, the evidence of most of the witnesses is of no consequence for the decision of the appeal of the appel lants, against their convictions. The only evidence against Irshad appel lant, on the basis of which he has been convicted under section 4l1, P. P. C. is that he had led to the recovery of wrist watch P. 10. This recovery allegedly was made on 6-9-1976. P. W. 16 Sardar Khan and P. W. 27 Muhammad Sadiq Inspector of Police have appeared to prove the alleged recovery. Sardar Khan P.W. 16 has admitted in cross-examination that his wife is the real sister of Riasat Ali, who was named as an accused in the first information report in this case. He has also admitted that the Police had hauled him up and pressed him to produce Riasat Ali. He has also admitted that he has been pursuing the case before the higher Police officers to prove the innocence of Riasat Ali. Obviously, he is an interested witness. His wife's brother was named as an accused in the F. I. R. of this case. We find weight in the argument of the learned counsel for the appellants that no reliance can be placed on his statement, as he is an interested witness, as the other witness to the recovery memo. Fazal Dad was not produced, the prosecution is left wit the statement of Muhammad Sadiq Inspector of Police (P.W. 27) only and we do not consider it safe to uphold the conviction of Irshad appellant merely on the statement of a Police officer keeping in view the facts of this case.

In the circumstances, the appeal of Irshad appellant is accepted and he is acquitted. He shall be released forthwith if not required in any other case.

8. The evidence, which according to the prosecution connects Arshad Mahmood appellant with the crime is the statement of Sher Ali P. W. and Lal P. W. 15, about which we have already observed that their statements have been disbelieved by the learned trial. Court and rightly so. The statement of Sardar Khan P. W. 16 that Arshad Mahmood appellant, in his presence had pointed out the place of occurrence, is not admissible in evidence, as any statement made by the accused while pointing out some place before a Police Officer is only admissible if something is recovered in consequence thereof. As such we rule out this evidence from consideration against Arshad Mahmood appellant. Shah Muhammad P. W. 20 who had claimed that he had seen Ahmad Din, Allah Ditta and Irshad (appellant) near the Railway line, whereafter they had seen Mehdi Khan walking on the same path being followed at some distance by Arshad Mahmood appellant and Tai Din (acquitted accused) has not been believed by the learned trial Court. We have gone through the reasons advanced by the learned trial Court and we do not find anything to differ with the same.

9. Sardar Khan P.W. 16 has deposed that carbine P. 6 alongwith cartridges P. 7 and P. 8 and battery P. 9 were got recovered by Arshad Mahmood appellant in his presence. Apart from the fact that we have held that Sardar Khan (P. W. 16) is an interested witness, even otherwise we do not think that the evidence of recovery of carbine advances the case of the prosecution in any manner, for, neither any empty was recovered frown the spot nor any favourable opinion was given by the Fire-arm Expert regarding the alleged use of carbine. As such this evidence also stand] ruled out.

10. The statement of Mst. Irshad Begum P.W. 18 wife of the deceased that on the night of occurrence appellant Arshad Mahmood accompanied by Taj Din had come to see the deceased at 10.00 p. m. has also been disbe lieved by the learned trial Court for sufficient reasons and we do not see any reasons to differ with the same particularly in view of the fact that there is no appeal against the acquitted accused Taj Din, against whom also Mst. Irshad Begum bad stated in the same breath that he had come to see her husband alongwith Arshad Mahmood appellant.

11. The only evidence worth consideration against Arshad Mahmood appellant is the statement of his wife Mst. Rashida Bibi P. W. 17. She has stated that the relatives of Bashir who was challaned in the murder case of Nasar Mahmood, brother of Arshad Mahmood, had approached her brother Mehdi Khan (deceased) for a compromise and also with the request that be should not depose against Bashir in the Court. She has stated that her brother promised them in the Punchayat, and Arshad Mahmood appellant had told her later that he had overheard this talk. Apparently this can be termed as a motive for Arshad Mahmood appellant to have committed the murder. In this respect she finds some support from the statement of her father Ahmad Khan who after lodging the F. I. R. had gone back on the same. She has also stated that on the night of occurrence acquitted accused Allah Ditta and Ahmad Khan and appellant Irshad had stayed with her husband in her house. She has further stated that her husband had left the house on the night of occurrence with a carbine and a battery telling her that he will come very late and that she should not wait for him. She has stated that in spite of that she waited and her husband came very late and in the morning she saw the carbine and battery lying in the bed of her husband. She has further stated that she fixed up the respon sibility of this murder upon her husband as he had brought the other accused to his house on the night of occurrence, her husband denied. the commission of offence and 8-9 days after the occurrence he took her to Chak No. 190, District Multan where he kept her for three months. When the investigation was taken up by Crime Branch, her husband told her that he had fired at Mehdi Khan deceased while the co-accused had held him. He thus confessed the guilt before her and requested to save his life. In cross-examination she has admitted that the Police had come to record her statement at Multan five months after the occurrence but her statement was not recorded there. She came to Lalamusa and went to the Police Station where her statement was recorded. The Police also got recorded her statement 2 days later under section 164, Cr. P. C. before a Magis trate. Her statement under section 161, Cr. P. C. was recorded by Muhammad Sadiq Inspector of Police (P.W. 27) on 28-8-76 and her state ment under section 164, Cr. P. C. was recorded on 2-9-76.

12. Learned counsel for the appellants has argued that no reliance can be placed on the statement of Mst. Rashida Bibi (P. W. 17) for the reason that although she claims that she had suspected her husband 8-9 days after the occurrence of having committed the murder of Mehdi Khan deceased, yet she did not disclose this fact to anybody nor did she make any statement to the Police till 28-8-1976 i.e. about five months after the occurrence in spite of the fact that the Police had gone to record her state ment at Multan. Learned counsel has also pointed out that she has made material improvements over her statement (Exh. D.C.) recorded under section 161, Cr. P. C. He has pointed out that during cross-examina tion when she was confronted with the statement (Exh. D.C.) it was found that she has not stated anything regarding having seen a carbine and a battery with her husband on the night of occurrence or about the fact that her husband had told her that he is going out for some work. The statement that in the morning she had seen in the bed of her husband carbine and battery, was also not found to have been stated in her state ment Exh. D.C. before the Police. Her statement before the Court that her husband had told her that he committed this murder as the decease was resiling from the statement, was also not found to have been recorded in her statement Exh D. C. It seems that the witness having come to know that the Police while challaning the appellant (Arshad Mahmood) had also shown to have recovered carbine and batter from him, had made attempt to bring her evidence in line with the alleged recoveries. We also find force in the contention of the learned counsel for the appellants that the uncorroborated testimony of Mst. Rashida Bibi P.W. 17, keeping in view the above enunciation of he evidence, does not successfully bring home charge against Arshad Mahmood appellant.

For the reasons enumerated above, we feel that the prosecution has not been able to prove the case against Arshad Mahmood appellant beyond reasonable shadows of doubt. He is, therefore, given the benefit of doubt and is acquitted. He shall be released forthwith if not required in any other case.

S. G. D. Appeal accepted.

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