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Criminal Appeal No. 550 of 1984, heard on 21st May, 1986.

‑‑‑S. 302/34‑‑Headless body of deceased found from a Sem Nullah‑ Identification of dead body doubtful‑‑Photographs of dead body taken by Police not shown to wife, brother and nephew of deceased who appeared as prosecution witnesses, for identification of dead body from seeing photo of main trunk of body‑‑Only material on basis of which deceased was identified was his last‑worn clothes‑‑Sweater which deceased was found wearing did not bear cut corresponding to injuries‑‑Statements of accused before Magistrate under S.164, Criminal Procedure Code, of having murdered deceased were contradictory to time of death opined by doctor who performed autopsy‑‑Possible date of murder of 'deceased opined by doctor not tallying with date of murder said to have been given by accused at time of alleged judicial confessions‑‑Evidence of murder of deceased which allegedly came from mouth of accused in their judicial confession, contradictory to medical evidence and so not worth reliance‑‑Only other material evidence which could be considered worth anything against accused was recovery of dagger at pointing out of accuses[ and recovery of photostat copy of Identity Card of deceased from accused‑‑Recovery of copy of Identity Card of accused seemed to be paddings and not worth reliance‑-Original Identity Card of deceased produced by his wife and taken possession of by Police not on record‑ Evidence of recovery of blood‑stained dagger also not inspiring confidence as it had remained lying under damped sand and still retaining blood‑stained‑‑Evidence of judicial confessions, allegedly made by accused, and recoveries at their instance having not been believed, their conviction merely on suspicion expressed by wife of deceased, held, was not safe administration of justice‑‑Conviction set aside and accused acquitted in circumstances.

Ehtesham Qadri for Appellants.

Nemo for the State.

Date of hearing: 21st May, 1986.

Appellants Muhammad Hanif, aged 26 years, Muhammad Munir, aged 24 years, sons of Muhammad Ali, were tried alongwith Muhammad Manzur, under sections 302/201/34 and 404/34, P.P.C. for having murdered Sher Khan (Sher Muhammad) deceased, by Additional Sessions Judge, Sargodha. The learned trial Judge vide order, dated 11‑10‑1984, while acquitting the appellants under section 201/404/34; P.P.C., convicted them under section 302/34, P.P.C. and sentenced each of them to suffer imprisonment for life, plus a fine of Rs.5,000 each, in default whereof to undergo R.I. for two years each. They have also been directed to pay a sum of Rs.5,000 each, as compensation to the heirs of the deceased, in default whereof to undergo R.I. for two years. Muhammad Manzur, their co‑accused was acquitted of the charges under section 302/201/34, P.P.C. but was convicted under section 404, P.P.C. and sentenced to three years' R.I., plus a fine of Rs.2,000, in default 'whereof to undergo R.I. for six months. Muhammad Manzur, have not filed any appeal against his conviction and sentences.

2. F.I.R. (Exh. P.D./1) was registered at Police Station, Sahiwal, District Sargodha, on 8‑3‑1982, at 3‑35 p.m., on receipt of statement (Exh. P.D.) made by Chiragh Muhammad (P.W. 7), to Muhammad Hayat, ,A.S.I. (P.W. 14), on the same day at 3‑30 p.m., at Bus Stand Sahiwal.

The only information that the F.I.R. contained was that Chiragh Muhammad had spotted a headless body lying in the water near bridge on the Sem Nullah, in the area of village Bhochra, when he was returning to his village alongwith Mumtaz son of Sultan (P.W. 8). It is also mentioned in the F.I.R. that incised wounds on the chest of the deceased were visible.

3. The A.S.I. after recording the statement (Exh. P.D.) proceeded to the spot. After preparing necessary papers, he despatched the dead body for post‑mortem examination, which was performed by Dr. Altaf Husain (P.W.1), on 9‑3‑1983, at 2‑30 p.m. Prior to the autopsy, the A.S.I. under the orders of S.I./S.H.O. had got the dead body photographed.

At the time of autopsy, the doctor noted following injuries on the dead body:‑

(1) There was zig‑zag incised wound around the neck at the level of thyroid cartilage, the upper part (head face and part of neck was absent).

(2) An incised wound, 2 c.m. x 1 c.m. x bone deep on the front of chest.

(3) A stab wound, 2 c.m. x 1 c.m. x chest cavity deep on, the front of right upper chest.

(4) A stab wound 3 c.m. x 1 c.m. x chest cavity deep on the front of right upper chest.

(5) A stab wound 2 c.m. 1 c.m. x chest cavity deep on the right upper chest, outerside.

(6) A stab wound 3 c.m. x 1 c.m. x chest cavity deep on the front right chest, middle part.

(7) A stab wound 3 c. m. x 1 c. m. x bone deep on the front of chest near central line middle part.

(8) An incised wound, 3 c.m. x 3 4 c.m. bone deep on the front of left chest near middle line.

(9) An incised wound, 3 c.m. x c.m. x bone deep, on the front of left chest, lower part.

(10) A stab wound, 3 c.m. x 1 c. m. x chest cavity deep on the front chest lower part at the middle line.

According to the opinion of the doctor, the deceased died due to haemorrhage and shock, as a result of injuries Nos. 1, 3 to 7 and 10, which were sufficient to cause death collectively as well as individually. Probable time between injuries and death was within a few minutes or so and between death and post‑mortem examination was about four days.

The doctor at the request of the police had removed the digits of both hands of the deceased and handed over the same to Dost Muhammad, F.C.

In cross‑examination, the doctor stated that the dead body was not identified by anybody at the time of autopsy. He admitted the suggestion that if the deceased had been wearing the sweater at the time of receiving injuries, the sweater would have borne corresponding cuts. He also stated that the dead body was in a decomposed condition but had no signs of drowning. It was explained by him that the deceased might have died a day earlier or a day after than four days opined by him.

Dost Muhammad F.C. (P.W.12) , who was entrusted the last worn clothes of the deceased by the doctor, viz. woollen sweater (P.1), shirt (P. 2), Salooka (P. 3), Bunyan (P.4), Shalwar (P.5), Sandle (P.6), Socks (P. 7) and 10 digits of skin of the deceased, handed over the same to Malik Muhammad Hayat, A.S.I. (P.W. 14), who took the same into possession vide memo. Exh. P.O.

The investigation was taken over by Pervaiz Shah, Inspector (P.W. 15) on 9‑3‑1982.

On 14‑4‑1982, Mst. Surriya (P.W. 9), widow of the deceased, Muhammad Siddique (P.W. 10), brother of the deceased, and Shaukat (P.W. 11), nephew of the deceased, appeared before the S.H.O. at the police station and identified the shirt (P.2), woollen sweater (P.1), Salooka (P.3), waist (P.4), Shalwar (P.5), Sandle (P. 6) and socks (P.7), the last worn clothes of the deceased to be that of Sher Muhammad (Sher Khan) deceased. The S.H.O. after recording their statements proceeded to arrest appellants Munir, Hanif and their co‑accused Manzur. The appellants were arrested on 18‑4‑1982. On 1‑5‑1982, Hanif led to the recovery of blood‑stained dagger (P.11) from under silt lying at the bank of Sem Nullah, in the area of village Durrah, which was taken into possession vide memo. Exh. P.L., attested by Shaukat and Siddique P.Ws. Since Hanif failed to produce licence for keeping the dagger of the prohibited size, he was challaned separately under section 13/20/65 as well.

Munir appellant on the same day led to the recovery of photostat copy (Exh. P. 10) of the Identity Card of the deceased; frog residential quarter situated in the premises of the office of the Deputy Director Health, Sargodha, which was taken into possession vide memo. Exh. P.M. attested by Shaukat and Siddique P.Ws.

Recovery of ring (P.9) was also effected on tie same day at the instance of Manzur co‑accused of the appellants from his quarter. It was taken into possession vide memo. Exh. P.N., attested by the same witnesses.

On the same day Muhammad Ali Shah (P.W. 16) produced watch (P.8) before the S.H.O, which was taken into possession vide memo. Exh. P.C. attested by said Muhammad Ali Shah.

Watch (P. 8) and photostat copy of the Identity Card (P.10) were identified to be those of the deceased by Mst. Surriya (P.W. 9), Muhammad Siddique (P.W. 10) and Shaukat (P.W. 11) on 21‑5‑1982.

Confessional statements under section 164, Cr.P.C. of the appellants were also recorded by Makhdoom Muhammad Nawaz, M.I.C. (P.W.13) on 2‑5‑1982.

After completion of necessary investigation, challan was put to Court.

4. At the trial prosecution in all examined sixteen witnesses. The deposition of Dr. Altaf Husain (P.W. 1), who had conducted the autopsy has been noted above.

Informant Chiragh Muhammad, who appeared as P.W. 7, re‑narrated the facts given by him in the F.I.R. Nothing incriminating the appellants was stated by him. Mumtaz (P.W. 8), who was with the informant, and had stayed back to watch the dead body when Chiragh had gone to inform the police, corroborated the statement of P.W. 7.

Mst. Surriya, widow of the deceased, who had identified the last worn clothes to be those of the deceased and had also identified watch (P.8), ring (P.9), and photostat copy of the Identity Card (P.10), to be those of the deceased, appeared as P.W. 9. Apart from deposing the facts of her having identified the above‑noted articles, she also stated that she was residing with her husband at Rawalpindi and that during last Moharram the deceased had told her that he had purchased a plot in residential colony of Sabherwal in Sargodha. She stated that in the last week of February, 1982, her husband had gone to Chak No. 43/N.B., district Sargodha, to meet his brother Muhammad Siddique P.W. The purpose of the visit was to obtain money from Siddique for constructing a building on that plot and also to inform Siddique about the welfare of the latter's daughter, who was living with them at Rawalpindi. She stated that in spite of her husband's promise to return within 3/4 days, he did not return. In the first week to March, 1982, Siddique came to their house at Rawalpindi to take away his daughter. On inquiry, he told her that the deceased had gone away from him on 28‑2‑1982 to meet his friends Muhammad Hanif and Muhammad Munir (appellants), who were employed as Chaukidars in Civil Hospital, Sargodha. She further stated that as the deceased did not turn up, they started searching him. She also stated that during search, Siddique ark Shaukat P.Ws. had gone to inquire about the whereabouts of the deceased from Muhammad Hanif and Muhammad Munir (appellants). She further stated that Muhammad Hanif and Muhammad Munir (appellants) suspected that the deceased was carrying on illicitly with the wife of their brother Muhammad Bashir. She expressed suspicion that the appellants alongwith their co‑accused Manzur had done her husband to death.

In cross‑examination, she stated that the clothes worn by the deceased were of ordinary pattern usually worn by the people in the country and they did not bear any special marks of identification.

She admitted that she had not seen any receipt of watch nor she knew its number. She admitted that when she had visited the police station during investigation, the police had told her that the watch which had been recovered from the accused belonged to her husband. About the ring, she stated that she had been seeing the same on the finger of the deceased for the last 6/7 years, but did not know the name of the goldsmith who had prepared the same. In answer to another question, she stated that during investigation we suspected the appellants and their co‑accused to be the murderers of the deceased and it was during those moments that they suspected that the accused might be suspecting the deceased of having illicit liaison with the wife of Muhammad Bashir. She also stated that she belonged to Awan tribe while the deceased was Arain. She denied the suggestion that the deceased had enticed her away and married thereafter. She admitted the suggestion that she alongwith her brothers were associated as suspects for 8/10 days. She also stated that after one month's torture by the police the accused persons confessed their guilt and offered to make confessional statements and that thereafter, at the instance of police she had produced the original Identity Card belonging to the deceased before the police.

Muhammad Siddique (P.W.10) corroborated the statement of P.W.9 in so far as it pertained to the deceased's visit to his house, of his (witness) having gone to Rawalpindi and of having informed Mst. Surriya about the deceased having gone to meet Munir and Hanif. He also stated that during search of the deceased, he alongwith Shaukat had gone to Munir and Hanif and on inquiry they had told them that the deceased had visited them on 28‑2‑1982, but had gone away the same day to Rawalpindi. He stated that Munzur co‑accused of the appellants had also confirmed the above facts. He also stated about having identified the last worn clothes of the deceased as well as watch (P.8) and ring (P. 9) and photostat copy of Identity Card (P. 10).

In cross‑examination, he expressed his inability to give the colours and descriptions of the other sets of clothes of the deceased which he used to wear. He also expressed inability to give the name of the tailor who had tailored the clothes of the deceased. He stated that the deceased had purchased the wrist‑watch and ring from Saudi Arabia. It was also stated by him that he had felt sure of his brother having been murdered 3/4 days after 28‑2‑1982, but in spite of that he had not gone to lodge a report at the puce station. He contradicted Mst. Surriya P.W. by denying the suggestion that the police had suspected Mst. Surriya and her brothers as murderers in the first instance. This witness also deposed about the recovery of dagger at the instance of Hanif appellant, and photostat copy of the Identity Card at the instance of Munir appellant. He stated that many persons were present at the time of recovery of photostat copy of the Identity Card from the quarter. He also stated that after the recoveries from the appellants and their co‑accused, he had accompanied the police to Police Station, Sahiwal, where papers relating to recoveries were prepared and they had thumb‑marked the same.

Shaukat (P.W. 11) corroborated the statement made by Siddique (P.W. 10). In cross‑examination, he stated that 7/8 days after the disappearance of the deceased, they had started suspecting the accused persons to have murdered the deceased on account of their suspicion of illicit intimacy of the deceased with the wife of Bashir (brother of the appellants). He stated that on the following day they came to know about the fact of an unidentified body found by the police and he went on the same day to the Police Station alongwith Mst. Surriya and Siddique P.Ws. and there identified the last worn clothes of the deceased and the police on the same day had arrested the accused persons from Civil Hospital, Sargodha and they got recovered the wrist‑watch, ring and dagger the same day.

Mian Muhammad Nawaz Makhdoom, A.D.C., Sargodha, who had recorded confessional statement (Exh. P.Q.) of Muhammad Hanif, Exh. P.R. of Muhammad Munir and Each. P.S. of Manzur, co‑accused of the appellants, appeared as P.W. 13. He stated that before recording the statements, he had asked them whether they knew that they were appearing before a Magistrate for making statement and told them that they were not bound to make the statements and that if they made statements, the same can be used against them. He stated, that the answer to these questions by three of them was in affirmative.

In cross‑examination, he stated that he had got the hand‑cuffs removed before recording their statements and returned them to police custody after recording their statements. In answer to another question, he stated that he did not remember whether the accused were remanded to judicial custody on that date or to police custody. However, after having examined the papers, he stated that the accused were remanded to judicial custody on 2‑5‑1982. He also stated in gross examination that he had not inquired from the accused as to since when they were in police custody, whether they had been tortured by the police. Nor had he asked them as to why they were making confessional statements. Syed Muhammad Ali Shah, who had produced the wrist‑watch before the police appeared as P.W.16. He stated that he was running an Auction Mart at Sargodha. He stated that the police had brought accused Manzur and Muhammad Hanif (appellant) to his shop in custody and had inquired from him if he (witness) could identify them. He expressed his inability, but on having seen his record, he told the police that the wrist watch was sold by Manzur accused him vide receipt Exh. P.X. and he was identified by Muhammad Hanif appellant.

The crux of the statements of two Investigating Officers has already been noted above. The evidence of the remaining witnesses in more or less of a formal nature. The report of the Chemical Examiner and that of the Serologist were also tendered in evidence.

5. Appellants during their statements under section 342, Cr.P.C. denied the whole prosecution case. Both of them took up the plea that they were taken into custody by the police on 24‑3‑1982 and were tortured till 2‑5‑1982 for obtaining judicial confession. Muhammad Hanif in answer to the question, "Have you anything else to say", stated as under:‑--

"Yes. I am innocent, I was tortured by the police for 1 months and was forced to make a confession. When I was produced before a Magistrate, I told the Magistrate that I was innocent. He was a fake Magistrate. He summoned the police inside and again handed me over to the police. The police again tortured me for one week and thereafter, manoeuvred to obtain the alleged confession which is forged one and is result of coercion."

Muhammad Munir in answer to the same question, stated as under:‑

"I am innocent. I was tortured by the police for 1 months and was forced to make a confession. When I was produced before a Magistrate I told the Magistrate that I was innocent. He was a fake Magistrate. He summoned the police inside and again handed me over to the police. The police again tortured me for one week and thereafter, manoeuvred to obtain the alleged confession which is forged one and is result of coercion."

Both opted to produce defence.

Mukhtar Husain, Assistant, in the office of Deputy Director Health, Sargodha, was examined as D.W.1 while Muhammad Usman, Head Clerk, D.H.Q. Hospital, Sargodha, appeared as D.W. 2.

P.W.1 stated that Muhammad Hanif and Manzur were serving as Chaukidars in the office of the Deputy Director Health, Sargodha and that as per attendance register they had remained on duty during the night of 28‑2‑1982. He stated that Pervaiz Shah S.I. /S. H.O., P.S. Sahiwal, had come to the office of the Deputy Director and had. taken them away in custody on 24‑3‑1982, where after they were marked absent. He stated that on 7‑4‑1982, a letter under the signatures of Deputy Director Health was written to the S.H.O. P.S. Sahiwal, asking him to confirm the arrest of Manzur and Hanif in the murder case. A copy of the letter was endorsed to the S.P., Sargodha under the signatures of Assistant Director Health on 18‑4‑1982. Letter (Exh. D.W.‑1 / C) was received from the office of the S.P. with an endorsement (EXh.D.W.1/D) with annexure (Exh. D.W. 1/C), which was the report of the S.H.O., P.S. Sahiwal. In cross‑examination, he stated that he identified the signatures of the Deputy Director Health.

Statement of D.W.2 was not recorded at the request of the learned counsel for the accused.

6. Learned trial Court convicted the appellants under section 302/34, P.P.C., believing the testimonies of P.Ws. Shaukat and Muhammad Siddique, about the deceased having gone to visit the appellants and of the appellants having admitted this fact before them and by placing reliance on the evidence of recoveries and that of the judicial confessions recorded by the Magistrate.

7. According to the confessional statements (Exhs.P.Q. and P.R.) made by Muhammad Hanif and Muhammad Munir appellants, respectively, the deceased was murdered by them on 28‑2‑1982, at about 10 p.m.

8. The identification of the dead body in this case seems to be doubtful. It is in evidence that Sher Khan husband of Mst. Surriya was Passport, holder and this fact must have come to the notice of the Investigating Officer after recording the statement of Mst. Surriya about her husband having remained in service in Saudi Arabia. If the Investigating Officer had sent the digits removed at their instance by the doctor, who had performed the autopsy, the marks on those digits could have been tallied with the finger prints on the application for Passport of Sher Khan.

The photographs of the dead body were also not shown to the wife, brother and nephew of Sher Khan, who appeared as P.Ws. Although the photographs were of a headless body, still there would have been chances of identification of the body from seeing the photo of the main trunk of the body.

The only material on the basis of which the deceased of the case was identified as Sher Khan was, last worn clothes, removed by the doctor at the time of autopsy. Out of those clothes sweater which the deceased was found wearing did not bear cuts corresponding to the injuries, which, according to the doctor, would have been the result, if the deceased was wearing the sweater at the moment he was caused injuries.

The statements of the appellants before the Magistrate under section 164, Cr.P.C. of having murdered Sher Khan on 28‑2‑1982; are contradictory to the time of death opined by the doctor, who performed the autopsy. The autopsy was performed on 9‑3‑1982. The doctor had opined that the death would have occurred four days earlier. He had stated that by way of margin, it can be stated that the death might have occurred a day after or a day before than the opinion expressed by him. The dates thus calculated do not tally with the date of murder said to have been given by the appellants at the time of alleged judicial confessions. The evidence of death (murder) of Sher Khan, which allegedly came forth from the mouth of the appellants in their judicial confessions, is contradictory to the medical evidence and so not worth reliance. Since the alleged judicial confessions have not been found worth reliance for being contradictory to the post‑mortem report, I have not adverted to the argument of the learned counsel for the appellants with regard to their inadmissibility on the ground that the same were obtained by coercion and torture, although learned counsel in this connection pointed out certain portions of the evidence to contend that the appellants had remained in police custody before the recorded dates of arrests.

The only other material evidence which can be considered worth anything against the appellants, is the recovery of dagger at the pointing out of Hanif appellant and recovery of photostat copy of the Identity Card of Sher Khan from Munir appellant.

The recovery of photostat copy of the Identity Card seems to be paddings. Mst. Surriya (P.W. 9), wife of Sher Khan, clearly stated that after the arrest of the appellants she had produced Identity Card of her husband before the police on their asking. The Identity Card is not on record. It was not take into possession. It seems that the police have used the same for obtaining photostat copy. Even otherwise, the recovery of photostat copy of the Identity Card is not worth reliance.

The evidence of recovery of blood‑stained dagger also does not inspire confidence. A part from the fact that it was deposed to by an interested witness, i.e. Muhammad Siddique, real brother of the I deceased, the dagger which had remained lying under the damped sand could not have retained bloodstains.

8. Since the evidence of judicial confessions alleged to have been made by the appellants and the recoveries at their instance has not been believed, I do not think it would be safe administration of justice J to maintain the conviction of the appellants merely on the suspicions expressed by the wife of Sher Khan, his brother and nephew, particularly so when Mst. Surriya herself alongwith her brothers was at one stage suspected for having murdered Sher Khan and had remained under investigation in this case.

9. In the circumstances, the conviction of the appellants under section 302/34, P.P.C. is set aside and they are acquitted.

M.Y.H. Appeal accepted.

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