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Criminal Appeal No. 385 of 1985, decided on 4th June, 1986.
‑‑‑S. 302/34‑‑Identification of body‑‑Dead body was identified at time of post‑mortem and at time of its recovery as well‑‑Though doctor had stated that body was in decomposed condition but he had not stated that same was not identifiable‑‑Mother of deceased stating that she had identified dead body from flesh on face‑‑Recovered dead body, held, was proved to be that of deceased in circumstances.
‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Except suggestions that accused had opposed a prosecution witness in elections no other instance of enmity was alleged against any witness‑‑Complainant, mother of deceased had no relative in the village‑‑Prosecution witnesses who were not related to deceased or complainant, held, could not be dubbed as interested witnesses.
‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Case resting merely on circumstantial evidence‑‑Evidence of prosecution against each of accused, held, had to be examined individually in circumstances.
‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Circumstantial evidence‑‑Only evidence against accused being of recovery of pair of shoes at his instance‑‑No evidence was produced to prove that recovered shoes belonged to deceased‑‑No other evidence existing to connect accused with murder‑‑Evidence of recovery of dead body at instance of accused, held, only proved a case under S.201, P.P.C. against him‑‑While setting a de conviction under S.302/34, P.P.C.‑‑Accused was convicted under S.201, P.P.C.
‑‑--‑S. 302/34‑‑Extra‑judicial confession‑‑Witness of extra‑judicial confession having been associated with investigation from its very beginning as a Lambardar, held, there was nothing unusual for accused to have chosen him for making confession‑‑Though Trial Court disbelieved evidence of extra‑judicial confession yet High Court taking same into account against accused in circumstances.[Confession].
‑‑‑S. 302/34‑‑Circumstantial evidence‑‑Accused leading to recovery of weapon of offence and blood‑stained shirts belonging to him and deceased, both of which were found to be stained with human blood‑ Apart from Investigating Officer recovery witness who was neither, related to deceased nor inimical to accused supported recoveries‑‑In addition to recovery evidence, evidence of extra‑judicial confession and motive also existing against accused‑‑Prosecution proving its case against accused without any doubt‑‑Conviction maintained.
--‑‑‑S. 302/34‑‑Excepting evidence of extra‑judicial confession and motive no other link existing to connect accused with crime‑‑Evidence of extra‑judicial confession without any strong corroboration, held, was week type of evidence‑‑Accused given benefit of doubt and acquitted in circumstances.
M. Abdul Saleem for Appellant.
Sh. Ehsan Ahmad for A.‑G. for the State.
Date of hearing: 4th June, 1986.
Muhammad Siddique, aged 36 years, his brother Mansha, aged 26 years, his father Muhammad Sharif, aged 65 years, were tried for having murdered Muhammad Sadiq, aged 25 years, nephew of Muhammad Sharif alongwith Muhammad Aslam, a co-villagers, by Additional Sessions Judge, Gujranwala. The learned trial Judge, vide judgment, dated 16th April, 1985, convicted Muhammad Siddique, Muhammad Mansha and Muhammad Sharif under section 302/34, P.P.C. and sentenced each of them to undergo imprisonment for life, plus a fine of Rs.2,000 in default whereof to undergo R.I. for six month.
Their co‑accused Muhammad Aslam was acquitted, vide the same judgment.
2. The convicts have filed appeal.
3. F. I. R. (Exh.P.B.) was recorded at Police Station Wahndo, District Gujranwala; on 19th July, 1982, at 5‑30 a.m. by Amjad Karim, S.I.. S.H.O., on the statement of Mst. Sardar Bibi, widow of Barkat Ali and mother of the deceased.
4. According to the F.I.R., the complainant alongwith her husband and their son Muhammad Sadiq were living in Chak No. 107/7‑R, District Bahawalnagar, where they owned, one square of land. Ten/twelve years prior to the registration of case, they had shifted to village Rajewala, where they owned six Acres of land, which was under cultivating possession of Muhammad Sharif, brother of husband of the complainant. On return to the village, Barkat Ali and Muhammad Sadiq deceased asked Muhammad Sharif and his sons Muhammad Siddique etc. to vacate the land as they intended to cultivate the land themselves, but they refused. Four/five years thereafter, Barkat Ali died, Muhammad Sadiq son of the complainant continued pressing for vacation of the land. A year before the present occurrence the deceased succeeded in getting the possession of the land through the good offices of Punchayat; as a result of which Muhammad Sharif and his sons Muhammad Siddique and Muhammad Mansha felt aggrieved. In the meantime, Muhammad Sadiq purchased another two Acres of land. Muhammad Siddique and Muhammad Mansha asked him to transfer one Acre of land in their favour, but Sadiq refused. AS a result whereof, Muhammad Sharif and his sons Muhammad Siddique and Mansha felt more enraged and started planning to finish him. On 10th July, 1982, Muhammad Siddique and Mansha sons of Sharif quarrelled with Sadiq at the Dera (where the deceased and his cousins used to keep their cattle). While quarrelling, Muhammad Siddique and Mansha threatened the deceased that they will not spare him alive. This incident apart from the complainant was witnessed by Ali Sher, a co‑villager also, who forbade them to quarrel inter se. Thereafter, the complainant returned home while her son and Muhammad Siddique alongwith Muhammad Mansha slept at Dera. The complainant went to the Dera on the following morning and not finding her son there, inquired from Muhammad Mansha, who told her that he had gone to purchase diesel. It is recorded in the end of the F.I.R. that the complainant had been waiting and searching for her son. She also expressed strong suspicion that her son have been murdered by Muhammad Siddique and Muhammad Mansha.
5. After registration of the F.I. R. Muhammad Siddique was arrested on the same day. In interrogation, on the same day, he led to the recovery of the dead body of Muhammad Siddique in the presence of Ashiq Ali, Muhammad Hanif, Suleman and the complainant from a paddy field in the village. The dead body was identified at that stage by the above‑named persons.
On 25th July, 1982, after interrogation, he led to the recovery of one pair of shoes (P.2/1‑2) belonging to the deceased from a paddy field, which was under six inches of water. They were taken into possession, vide memo. Exh.P.L./1, attested by Muhammad Suleman and Munshi Muhammad Akbar, apart from the S.I.
6. Mansha, Sharif and Aslam were arrested on 27th August, 1982. On 29th August, 1982, Mansha led to the recovery of blood‑stained Kassi (P.3) and his own blood‑stained shirt (P.4), from a room containing chaff at their Dera in the land of Saleem Khan. The articles were taken into possession, vide memo. Exh.P.M. On the same day, he led to the recovery of blood‑stained shirt of Muhammad Sadiq deceased buried in the paddy field. The memos apart from the S.I., were attested by Muhammad Tufail and Mehnga Masih P.Ws.
Statement of Muhammad Hanif son of Abdul Karim was also recorded during investigation in connection with extra‑judicial confessions, said to have been made by accused Muhammad Sharif, Mansha and Aslam before him.
7. Dr. Anjum Javid (P. W.5) had performed the autopsy at 4‑45 P.M. on 19th July, 1982. The dead body at the time of autopsy was identified by Muhammad Akbar and Muhammad Suleman. The doctor noted following injuries on the dead body:‑
(1) An incised wound 8 c. m. x 3 c. m. bone deep on right side of forehead alongwith fracture (cut) of underline bone.
(2) An incised wound 18 c.m. x 5 c.m. x bone deep on right side of face alongwith fracture (cut) of the nozzle bone under and lower jaw.
(3) An incised wound 11 c.m. x c.m. x bone deep on front of face more on left side alongwith the fracture (cut) of next flaxri bone.
(4) An incised wound, 8 c. m. x 2 c. m. on lower part of face alongwith fracture (cut) of lower jaw and tongue was cut.
All the organs of the body were decomposed and the stomach was empty. According to the opinion of the doctor death was 'the result of shock and haemorrhage, due to injuries 1 to 4 all of which were grievous and caused by sharp‑edged weapon. Time between injuries and death was opined to be immediate while time between death and post‑mortem was opined to be four days.
During cross‑examination, he admitted that he had seen the police papers which contained the information about the death having occurred on 15th July, 1982, but he denied the suggestion that he had expressed the opinion regarding duration of death and post ‑mortem on that basis.
8. At the trial prosecution in all examined ten witnesses including the doctor, who had performed autopsy, gist of whose evidence has been recorded above.
Mst. Sardar Bibi complainant, mother of the deceased appeared as P.W.4. She stated that Sharif, Mansha, Siddique and Aslam had taken away the deceased from her house on 19th July, 1982 to the Dera of Saleem Khan whose land they used to cultivate. Next day morning she went there to milch the buffalo, not finding her son present there, she inquired about him from the accused. They told her that the deceased had gone to fetch oil for the tube-well. She waited and searched for him for three days and thereafter reported the matter to the police with the help of Chacha Akbar. The police on arrival at the spot took Muhammad Sddique in custody, who led to the recovery of dead body of her son.
During cross‑examination, on confrontation With her statement Exh.P.B., she was not found to have stated there that the four accused had taken away her son from her house, nor the fact of her visit to the Dera in connection with milching of buffalo and inquiring about the deceased from the accused was found recorded therein. She admitted that in the Local Bodies Elections of 1983, she had voted for Muhammad Hanif P.W. but denied the knowledge about the accused having supported Tasleem Khan, his rival. The suggestion put in this regard that they had supported Tasleem Khan was denied by her. She also stated that the dead body at the time of recovery was almost a skeleton, but she identified the dead body to be of her son from the flesh on the face. The suggestion that the deceased had divorced his wife was accepted by her.
Muhammad Hanif P.W.7 stated that the deceased was the only issue of his father, who died 2/3 years prior to the occurrence. He also stated that the deceased owned six Acres of land in this village and also owned land in District Bahawalnagar. He stated that Siddique appellant, in his presence, in custody of the police, had led to the recovery of dead body of the deceased from a paddy field, belonging to Saleem Khan. He claimed that he had attested the recovery memo. in this regard. He also stated that he had identified the dead body at that stage and so was done by the mother of the deceased. He further stated that Sharif, Mansha and Aslam had approached him, after one and a quarter months of the occurrence, and had confessed before him that they had murdered the deceased to get his land and that they had requested him to produce them before the police, which he did.
In cross‑examination, he admitted that he was Lambardar of the village, that he had filed his nomination papers for election as B.D. member in the Ayub regime but had boycotted the elections. He denied the suggestion that in 1979 local bodies elections he had sided Younis against Nasim Khan. He explained that Younis had boycotted the elections. He admitted that in 1982 local bodies elections, he had contested against Tasleem Khan, but stated that since during those elections the accused were behind the bars, the question of their supporting anybody did not arise. He denied that the relations of the accused had sided Tasleem Khan. The suggestion that Sharif was cultivating the land of his sister's son Yamin was admitted by him, but he denied that Yamin had taken the possession of the land immediately on the arrest of Sharif; according to him, Ishaq son of Sharif, had continued cultivating the land after the arrest of Sharif and it was in Kharif 1984 that Yamin had changed the tenant. He denied the suggestion that he was police bird and also denied the suggestion that he had come up as a false witness because of enmity with the accused.
Suleman, who appeared as P.W.8, stated that he had identified the dead body of Sadiq at the time of post‑mortem examination. He also stated that Siddique had led to the recovery of a pair of shoes during custody of police from a paddy field.
In cross‑examination, he admitted that he was nephew of Ali Sher and was looking after the land of the complainant since after the death of her son. He denied the suggestion that he alongwith his uncle had been supporting Hanif Lambardar in the elections.
Mehnga Masih P.W.9 stated that he had witnessed the recovery of blood‑stained Kassi P.3 and blood‑stained shirt P.4 at the pointing out of Mansha accused from a room containing chaff. He also stated that he had witnessed the recovery of blood‑stained shirt P.5 of Sadiq deceased, at the instance of Mansha accused.
In cross‑examination he stated that he was appearing in the Court for the first time in his life. He denied the suggestion that he had been helping Hanif Lambardar in the elections. On being questioned by the Court, he stated that Muhammad Sharif accused was real paternal‑uncle of the deceased while Siddique and Mansha were sons of Muhammad Sharif.
Amjad Karim, S.I./S.H.O., appeared as P.W.10 and gave the details of the investigation and the recovery of the dead body at the instance of Siddique accused, the recovery of blood‑stained Kassi and shirts at the instance of Mansha and recovery of a pair of shoes at the instance of Saddique.
9. The appellants during their statements under section 342, Cr.P.C. denied the prosecution case and pleaded innocence.
10. Learned counsel for the appellant contended that the prosecution had failed to prove that the dead body has been recovered in this case was really that of Saddique deceased that all the witnesses, who appear in this case, were either inimical to the appellants or were interested in the complainant in that, learned counsel pointed out that Hanif P.W.7 was inimical to the accused because of accused having oppo4.ed him in the elections, and also for the reason that Sharif accused was not vacating the land of his sister's son, which he was cultivating as a tenant, that Suleman P.W. was a tenant of the complainant and given up P.W. Ali Sher was his uncle and that Mehnga was also an interested witness. Learned counsel further contended that the statement of Mst. Sardar Bibi does not inspire confidence as her statement about tile accused having taken the deceased from her house, was not found recorded in her previous statement Exh.P.B. Learned counsel contended that the prosecution has failed to prove the motive and that the evidence of extra‑judicial confession has been deposed by interested and inimical witnesses. In this regard learned counsel pointed out that the trial Court has discarded the evidence of extra‑judicial confession.
11. The dead body in this case was not only identified by Suleman P.W. at the time of post‑mortem examination, but was also identified at the time of recovery of the dead body, by mother of the deceased, Hanif and Suleman P.W. Although the doctor had stated that the body was in decomposed condition but he did not state that it was not A identifiable. The mother of the deceased had specifically stated in cross‑examination that she had identified the dead body, to be that of her son, from the flesh on the face. For these reasons, I do not find weight in the argument of the learned counsel for the appellant that the prosecution have failed to prove that the recovered dead body was that of Saddique deceased.
12. None of the witnesses, who appeared at the trial, is related to the complainant or the deceased. Except the suggestions that the complainant had been supporting Hanif Lambardar in the elections and the accused had been opposing him, no other particular instance of enmity has been proved even alleged against any of the witnesses. Even the suggestion of the accused having opposed Hanif Lambardar in the local bodies elections was denied by all of the witnesses. Of course, Mst. Sardar Bibi admitted that she had once voted in the local bodies elections in favour of Hanif, but during those elections the accused were in jail and so it cannot be considered that the complainant had supported a candidate in the elections, who was being opposed by the accused.
The facts, that have not to be lost sight of, in this case are, that the complainant's husband had died. Her only son had been murdered and the murderers, according to her, were none else than real brother and nephews of her late husband. She had no other relations in the village. In that situation some persons from the village had to be joined in the investigation and the persons who joined the investigation and deposed about the facts in their knowledge, not being related to the deceased or the complainant, cannot, therefore, be dubbed as interested witnesses.
The contention of learned counsel that the prosecution have failed to prove the motive, has not impressed me. It is in evidence that the land owned by the deceased and his father was being cultivated by the accused and it was after great efforts and pursuit that the deceased had been able to obtain possession of the land and that too only year prior to the occurrence. The fact is that after the death of Muhammad Sadiq, the land, leaving aside the share of his mother, was to devolve upon brother of his father and his sons. I would say the accused had double motive in this case. First, that they were ejected from the land and, second, that they had an eye on begetting the land of the deceased.
13. Since there is no eye‑witness account in this case, the whole case rests on circumstantial evidence. The evidence of the prosecution against each of the appellants has, therefore, to be examined individually.
14. The only evidence against Siddique appellant is of having led to the recovery of dead body and of having led to the recovery of a pair of shoes. No evidence was led at trial to prove that the shoes belonged the deceased. Even the complainant, who is mother of the deceased, was not asked, whether the 'shoes recovered at the instance of Siddique were those of her son. There is no evidence to connect him with the murder of the deceased. Evidence of recovery of dead body at his instance only prove a case under section 261, P.P.C. against him. His conviction under section 302/34, P.P.C. is, therefore, set aside. Instead, he is convicted under section 201, P.P.C. and is; sentenced to undergo R.I. for five years, plus a fine of Rs.1,000 in default whereof to suffer R.I. for six months.
15. Although the trial Court has discarded the evidence of extra‑judicial confession, deposed by Hanif P.W.7 but I do not feel inclined to accept the verdict of the trial Court. Since Hanif was associated with the investigation from the very beginning, which he was supposed to do as a Lambardar, there was nothing unusual for the accused to have chosen him for making disclosure about the commission of offence. They must have thought that in the circumstances, that he was placed he would be useful to them. I am, therefore, inclined to take into account his evidence and assess the weight of the same against Sharif and Mansha appellants.
Mansha appellant had led to the recovery of weapon of offence and blood‑stained shirt belonging to him and the deceased, both of which were found stained with human blood, according to the report, (Exh.P.N. of the Chemical Examiner and (Exh.P.O.) of the Serologist The witness, who appeared to depose about the recoveries at hi instance, apart from the S.I. is a Christian, who obviously had relationship with the deceased. He is a person, who had come to the Court as a witness for the first time. He was not at all inimical to the accused. The attempt in cross‑examination to prove his association with the deceased did not bear fruits. There is evidence of extra‑judicial confession against him and evidence of motive as well. A11 Linked together makes out a clear case against him. The prosecution without doubt has been able to prove case against him. His appeal, therefore, is dismissed.
16. However, case of Muhammad Sharif appellant is distinguishable. Although there is evidence of extra‑judicial confession against him, but there is no other link to connect him with the commission of murder, except the motive. Evidence of extra‑judicial confession, without some other strong piece of evidence connecting the accused with the commission of crime, is a week type of evidence. The case against him, therefore, is of a doubtful nature. He is acquitted by way of abundant caution.
The appeal stands disposed of in the above terms.
H.A.K. Appeal partly accepted.
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