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Penal Code (XLV of 1860)‑--

‑‑‑S. 302/380/457/34‑‑Criminal Procedure Code (V of 1898), S.103‑ Accused killed Chowkidar of a carpet industry by strangulation and committing theft of carpets‑‑Evidence of prosecution witnesses contradictory to each other‑‑Joint extra‑judicial confessional statement made by accused, which was relied by Trial Court for conviction, was not sufficient to advance case of prosecution‑‑Recovery of stolen property not having been witnessed by local persons, same, held, was hit by section 103, Criminal Procedure Code‑‑Statement of Inquiry Officer regarding extra‑judicial confession and the recovery of stolen property inspiring no confidence‑‑Prosecution alleged that at time of arrest of accused persons pistol was recovered from each of them but there was no mention of said recovery memo. in statement of Inquiry Officer nor it was mentioned that they were separately prosecuted therefor‑‑Conviction and sentence set aside in circumstances.

Ch. Muhammad Sadiq for Appellant. Ch. Imtiaz for A.‑G. for the State. Dates of hearing‑. 22nd and 26th October, 1986.

Ashfaque Ahmad (20) resident of Mandi Kamoke and Muhammad Akram (18) resident of old Bakar Mandi, Lahore, were tried for the murder of Khuda Bakhsh and for the offences under section 457/380 P.P.C. On 22‑9‑1983, Additional Sessions Judge, Gujranwala, sentenced each to imprisonment for life a/s 302/34, P.P.C. with a fine of Rs,5,000 each in default to undergo two years' R.I. further. They were also convicted under sections 457 and 380 P.P.C. and sentenced to ten years' R.I. each with a fine of Rs.2,000 in default to suffer one year R.I. and on the last count, to five years' R.I. with a fine of Rs.1,000 each in default to suffer one year R.I. further. The fine, if realised was ordered to be paid as compensation to the heirs of the deceased. These sentences were ordered to run concurrently. The appeals of the convicts before me.

2. Khuda Bakhsh (deceased) was a Chowkidar in the Oriental Industries, Kamoke. His son Muhammad Abbas (informant) also worked as a carpet weaver in the same factory. On 2‑9‑1981, leaving his father Khuda Bakhsh in the factory, Muhammad Abbas went home at about 8 p.m. The following morning at 6 a.m., Muhammad Abbas went to the factory but found the outer door locked. He called out for his father but there was no response. He thought may be, his father had gone home. He thus came back but his father was not there either. He again went to the factory and with the help of a ladder scaled over the wall and went inside the factory and found his father lying dead in a corner. Deceased's both hands, elbows and left ear were injured. A blood‑stained piece of cloth was found thrust in his mouth and another piece of cloth was wrapped around his neck and his hands had been tied behind his back. He had also bled through his penis. Two carpets were missing from the factory. Abbas raised an alarm, upon which, Allah Rakha, Chiragh Din and Muhammad Siddique reached there and saw Khuda Bakhsh lying dead. Leaving them there, Abbas proceeded towards the police station but met with PW 13 Mansabdad S.I./S.H.O., P.S. Kamoke at Bus Stand Kamoke. He made statement Ex.P.A. to him at 7.30 a.m.on the basis of which formal FIR Ex.PA/1 was registered at PoliceStation Kamoke same day at 7.45 a.m. The S.I. then went to the spot, prepared the necessary documents and sent the dead body for its post‑mortem examination. He took into possession blood‑stained earth from there and sealed into a parcel through memo. Ex.P.D.

3. The same day at 4.30 p.m. PW 4 Dr. Ashfaque Ahmad, S.M.O., Jail Hospital, Gujranwala, held the autopsy on the dead body of Khuda Bakhsh and found the following injuries on it:‑

(1) A contusion 4 cm x 1 cm on back of right hand.

(2) Contusion 3 cm x 2 cm on back of right fore‑arm.

(3) Contusion 3 cm x 1 cm on back of right fore‑arm (in lower part).

(4) Swelling 3 cm x 3 em on back of right elbow joint..

(5) Abrasion 3 cm x 1 cm on back of right elbow joint.

(6) Contusion 12 cm x 1 em lower part of front of right chest.

(7) Incised wound 2 cm x 1 cm bone deep on front of middle left index finger.

Death in his opinion was due to strangulation and there was a ligature around the neck.

4. On 30‑10‑1981 at about 9 a.m. Muhammad Ashfaque and Muhammad Akram both accused, came over to the house of PW 11 Muhammad Ashraf a resident of Purani Abadi Kamoke. PW 12 Muhammad Ismail was already present there when the two accused came inside, they sat down and told them that they had gone to the carpet factory to commit the theft of carpets but Khuda Bakhsh, Chowkidar, woke up and resisted them, therefore, they strangulated him to death and tied his hands behind his back, put a piece of cloth in his mouth and threw his dead body in a corner of the factory and thereafter they removed two carpets from there. The appellants asked PW Muhammad Ashraf to help them to get a pardon. The accused then went away. After their departure, the two witnesses went towards the bazar and met with a police party headed by PW 13 Mansabdad S.I. They apprised him of extra‑judicial confession which the accused had made before them. Since Ashfaque, accused, had told PW Ashraf that he would go towards Tibba, so he parted this information to PW Mansabdad S.I. and thus the police party followed the accused and arrested Ashfaque near the railway crossing the same day. On his personal search, a revolver was recovered which was taken into possession. As they came over to the Kamoke Bus Stand, they saw Muhammad Akram accused boarding a bus. He too was apprehended and a revolver was also recovered from the search of his person. On 7‑11‑1981, Ashfaque accused in custody led to the recovery of carpet P.5 from his house situatad in Shahbaz Colony, Gujranwala, it was taken into possession through memo. Ex. P. G., besides the investigating officer, it was attested by P.W.11 Muhammad Ashraf and Shafqat Ali (given up). Same day during investigation, Muhammad Akram also led to the recovery of carpet P.4 from his house situated in Bakar Mandi Lahore, it was taken into possession through memo. Ex.P.F. attested by the same aforesaid withesses. After completing the investigation, the accused were tried in due course.

5. Both accused denied guilt at the trial and ascribed the case to enmity with the prosecution witnesses.

6. Relying on the evidence of the extra‑judicial confession made by the accused before PWs Muhammad Ashraf and Muhammad Ismail and that of the ,recovery of the carpets P.4 and P.5 from the accused, trial court came to the conclusion that the prosecution case was satisfactorily proved against them.

7. Criticizing the finding, learned counsel for the appellants contended that it was obvious from the statements of PWs Ashraf and Ismail that a joint confession was made by the appellants and the same was not admissible in evidence. It was argued that an unnatural story about the extra‑judicial confession has been put up by the prosecution through the evidence of PWs Ashraf and Ismail because it did not stand to reason that the two accused on their own came over to them to make a confession and thereafter, they were not detained then and there and they just went away and perchance the two witnesses met the investigating officer in the bazar and they narrated the story to him who on the same day arrested both accused from two different places.

8. I have considered the matter. There is force in the submissions made by the learned defence counsel. The purpose of PW Ismail's visit to the house of P.W. Ashraf was contradictory in the evidence of these two witnesses. Be that as it may, it being a joint confession cannot be taken into consideration. Consequently, this piece of evidence did not advance the prosecution case. In so far as the recovery of carpets was concerned, Akram, accused, got recovered carpet P.4 from Shahbaz Colony, Gujranwala, but none from that locality was joined to attest the recovery. Admittedly, PW 11 Ashraf went all the way with the police from Kamoke to attest the recovery which took place at Gujranwala. The second recovery of carpet P.5 from Ashfaq, accused, took place from Bakar Mandi, Lahore but A none from there was joined in the recovery proceedings and it was again PW11 Ashraf who went to Lahore with police. The other witness of the recovery namely PW Shafqat was given up without assigning any reason, the recovery in both cases was hit by the provisions of section 103 Cr.P.C. It is, therefore, not safe to rely on it. As to the solitary statement of the investigating officer was concerned, there was an adverse reflection on the investigation in this case because the S.I. had not mentioned in his report under section 173 Cr.P.C. about the evidence of extra‑judicial confession. He denied the suggestion that he fabricated this evidence thereafter but did not explain why he omitted this fact in his charge report. This omission becomes material because an 7‑11‑1981 ,the investigating officer took into possession the two carpets under section 550 Cr.P.C and by this date, the accused had been arrested and it was within his knowledge that the carpets were stolen from the factory at the time of the murder. I also find that the prosecution alleged that at the time of arrest of the accused, pistol was recovered from each accused but there is no mention of their recovery memo in his statement nor it is mentioned that they were separately prosecuted for it. The statement of a police officer is as good or bad like the evidence of any other witness. Since the aforementioned analysis of the evident 'e of the investigating officer inspires no confidence in his statement, it, therefore, cannot be relied upon in proof of the recovery from the accused.

9. For the reasons given above, it is not safe to rely upon the evidence of extra‑judicial confession and the recoveries in this case. I, therefore, accept the appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith if not required in any other case.

10. In their statements, the accused did not claim the two carpets. On the contrary a suggestion was made to the witnesses that these were planted on them. The carpets are, therefore, ordered to be returned to PW Iftikhar‑ul‑Hassan owner of the Oriental Industries, Gujranwala.

M.Y.H./A‑121/L Appeal accepted.

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