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Criminal Appeal No. 438 of 1984, decided on 21st April, 1985.

‑‑‑S. 302/201/34‑‑No eye‑witness of occurrence available Fate of prosecution case hinging upon circumstantial evidence, evidence of last seen, extra‑judicial confession and recovery‑‑Possibility that deceased might have left company of accused somewhere in between place of occurrence and place of recovery of dead body or that he might have been killed after his separation from accused not excluded Statements of prosecution witnesses suffering from contradictions and improvements‑‑Prosecution failing to prove its case beyond reasonable doubt and no satisfactory basis existing to uphold conviction‑‑Accused given benefit of doubt and acquitted of charge in circumstances.

‑‑‑S.302/201/34‑‑Circumstantial evidence‑‑Precondition for acceptance of Circumstantial evidence, held, is as good as direct evidence if it excludes all hypothesis of innocence of accused and leads to one and only conclusion that accused and none else had committed crime.‑ [Evidence].

Ghous Muhammad Ch. for Appellants.

Abdur Rashid for Respondent.

Date of hearing: 21st April, 1985.

This criminal appeal arises from the judgment of learned Additional Sessions Judge, Faisalabad whether he on 11‑7‑1984 convicted Shafqat Ali, Muhammad Ashraf and Ghulam Mustafa appellants under section 302/34, P.P.C. for causing death of Muhammad Akram and sentenced them to imprisonment for life and fine of Rs.5,000 each or in default thereof, two years' R.I. It was directed that the fine if realised half of the same shall be paid to the heirs of the deceased. The appellants were acquitted of the charge under section 201, P.P.C.

2. The occurrence took place on 5‑10‑1982 at Deegar Wela in Killa No. 4; Square No. 43 of Chak No. 140/R.B. of P.S. Chak Jhumra. The distance between the place of occurrence and the P.S. is 13 miles. F.I.R. Exh.P.C. was lodged by Din Muhammad father of the deceased on 6‑10‑1982 at 2 a.m. and was recorded by Mehdi Khan, S.I. P.W. 12.

3. The motive as set up by the prosecution was that 2/3 days before the occurrence, Muhammad Akram deceased had quarrelled with Muhammad Ashraf appellant, hence this occurrence.

4. As far the main occurrence, it has been stated that on the fateful day at Deegar Wela, Shafqat, Ashraf and Ghulam Mustafa appellants came to the house of Din Muhammad P.W. 6 where he was present with his wife Mst. Azizan Bibi P.W. 10 and his son Muhammad Akram deceased. They asked him to send Muhammad Akram with them for collecting woods. On this Muhammad Akram accompanied them. After some time when Din Muhammad was present in Primary School of the village, he saw the three appellants coming back. He enquired from them about his son. They replied that he was following them. He waited for a short while but Muhammad Akram did not come back. He then went to the Dera of Mumtaz Lambardar P.W. 7. Muhammad Khan Advocate P.W. 9, Riaz Ahmad and Sardar Muhammad (both not produced) were present there. He told them that he had sent Muhammad Akram with the appellants but he had not come back. Mumtaz Lambardar sent for the appellants at his Dera. They came there. Mumtaz Lambardar P.W. 7 enquired from them about Muhammad Akram. The appellants confessed before the Lambardar and others who were present there that they had murdered him and thrown his dead body in the Jungle, within the area of Chak No. 140/R.B. The appellants then led Mumtaz Lambardar and others to the Jungle and pointed out the place where the dead body of Muhammad Akram was lying. On seeing the dead body of Muhammad Akram, Din Muhammad complainant left for the Police Station leaving behind Yousaf Ali and Bashir Ahmad, to guard the dead body.

5. Dr. Mumtaz Ahmad P.W. 5 conducted the post‑mortem examination on the dead body of Muhammad Akram on 6‑10‑1982 at 4 p.m. and found following injuries:‑

(1) An incised wound 2 c.m. x I c.m. on front of right shoulder.

(2) Neck and head was separated from the rest of neck and body at the level between first and second vertebra. Wound was full of clotted blood.

In his opinion the death was, due to shock and haemorrhage resulting from injury No. 2 which was sufficient to cause death in the ordinary course of nature. The injuries were anti‑mortem and caused by sharp -edged weapon. The death bras immediate. Time between post‑mortem and death was about 21 hours.

6. On 6‑10‑1982, the appellants were arrested by Mehdi Khan S.I. P.W. 12. He got removed blood‑stained shirt, P.5. and Chaddar P.6 from the person of Shafqat. Shirt P.7 and Chaddar P.8 were removed from the person of Ghulam Mustafa. These clothes were taken into possession vide memo. Exh.P.G. and P.H. respectively. On 10‑10‑1982 Shafqat led to the recovery of blood‑stained Chhuri P.3 which was taken into possession vide memo. Exh.P.D. attested by Mumtaz Lambardar and Muhammad Khan P.W.9. On the same day Ghulam Mustafa appellant got recovered blood‑stained dagger P.4 which was taken into possession vide memo. Exh.P.E. attested by the same .witnesses. Nothing was recovered from Muhammad Ashraf. The Serologist report Exh.P.O. reveals that clothes P.5 to P.8 of the two appellants and dagger recovered from Ghulam Mustafa were stained with human blood whereas the origin of blood on Chhuri P.3 recovered from Shafqat could not be determined as the sample was not sufficient.

7. The prosecution produced 12 witnesses. There is no eye‑witness of the occurrence. Din Muhammad P.W.6, Azizan Bibi P.W. 10 have stated that on the day of occurrence at about Deegar Wela, the three appellants came to their house and took away Muhammad Akram deceased on the pretext of collecting woods and that Muhammad Akram did not come back. They also stated that the three appellants had confessed to have murdered Muhammad Akram and thrown his dead body in the Jungle before Mumtaz Lambardar P.W. 7, Muhammad Khan Advocate P.W. 5 and others. Mumtaz Lambardar P.W. 7 and Muhammad Khan, Advocate have deposed about the extra‑judicial confession made by the three appellants before them. They further stated that the three appellants after having made confession, had led to the place where the dead body of Muhammad Akram was lying. They also stated that Shafqat and Ghulam Mustafa appellants had got recovered blood‑stained Chhuri P.3 and dagger P.4 respectively.

8. Muhammad Anwar P.W. 8 is a witness of Waj Takkar. He stated that he had seen the three appellants coming from Jungle with their clothes stained with blood.

9. Trial Court disbelieved motive, extra‑judicial confession and recoveries from the appellants and believing the evidence of last seen furnished by Din Muhammad and Azizan Bibi and Waj Takkar evidence given by Muhammad Anwar P.W. 8 has convicted the Appellants.

10. Learned counsel for the appellants, contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as evidence relied upon by trial Court suffers from infirmity such as contradictions, discrepancies and dishonest improvements and fails to connect the appellants with the murder of deceased.

11. Conversely the learned counsel for the State has supported the judgment of the trial Court.

12. I have considered the arguments advanced by the learned counsel for the parties with care. I find that to bring home the guilt to the appellants, the prosecution had relied upon various categories of evidence. Such as (i) last seen evidence supported by Din Muhammad and Mst. Azizan Bibi P.Ws., (ii) extra‑judicial confession, recoveries of dead body, blood‑stained clothes and weapons of offence were sought to be proved by Mumtaz Lambardar P.W. 7 and Muhammad Khan P.W. 9. Din Muhammad P.W. 6 also deposed about extra‑judicial confession and Waj Takkar evidence was given by Muhammad Anwar P.W. 8. The learned trial Court has disbelieved motive, alleged extra‑judicial confession, recoveries of blood‑stained clothes and weapons from the two accused /appellants and recovery of dead body at the instance of the three appellants. Since there is no eye‑witness of the occurrence therefore, fate of the case hinges upon the circumstantial evidence. No doubt, circumstantial evidence is as good as direct evidence but their pre‑condition is that it shall exclude all the hypothesis of the innocence of the accused and lead to one and only conclusion, that the accused and none else had committed the crime. The distance between the house of complainant and place where dead body was lying is one mile, therefore, the possibility that the deceased might have left the company of the appellants somewhere in between the place of occurrence and place of recovery of dead body or that he might have been killed after his separation from the appellants, cannot be excluded. The statements of Din Muhammad and Mst. Azizan Bibi suffer from contradictions and improvements. As far Waj Takkar evidence Muhammad Anwar P.W. 8 stated that clothes of all three appellants were blood‑stained whereas the trial Court has disbelieved the recovery of blood‑stained clothes of appellants. The name of Muhammad Anwar is also not mentioned in the F. I. R.

13. For all these reasons I am of the view that the prosecution has not been able to prove its case beyond reasonable doubt.

14. The upshot of the above discussion is, that there being no satisfactory basis to uphold the conviction and while giving them the E benefit of doubt, the appellants are acquitted of the charge.

15. They shall be released forthwith if not required to be detained in any other case.

M. Y. H.

Appeal accepted.

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