--Despite that, matter was not reported to police time--There is delay of more than one month in reporting crime to police, for which only explanation given in FIR is that accused had been promising for return of deceased--Such explanation, on face one is not confidence inspiring-

 PLJ 2021 Cr.C. (Lahore) 139

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b)/34--Conviction and sentence--Challenge to--Qatl-e-amd--Recovery of pistol--There is no direct evidence to connect appellant with commission of offence--In FIR, complainant alleged that his nephew (deceased) was taken alongwith them by appellant co-accused alongwith two unknown persons on 01.02.2011 in presence of PWs did not return and as per prosecution's own showing, complainant and witnesses had been inquiring from appellant and co-accused about deceased who, had been promising to return him but ultimately refused--Despite that, matter was not reported to police time--There is delay of more than one month in reporting crime to police, for which only explanation given in FIR is that accused had been promising for return of deceased--Such explanation, on face one is not confidence inspiring--Complainant PW-3 is also witness of recovery of pistol 30-bore taken into possession by PW-6 Investigating Officer vide recovery--In his examination in chief, complainant PW-3 did not tell date of recovery of said pistol--Moreover, no empty was recovered from spot, as such no comparison was made with pistol recovered on pointation of appellant--Therefore, no evidence is available on record to conclude with certainty that pistol taken into possession by Investigating Officer was same which was used by appellant for firing on deceased--Second witness was PW2--who was given being won over by accused--One of witnesses of recovery was also given up by prosecution being won over by accused--Another witness of said recovery memos in his examination in chief also did not disclose dates of said recoveries--Burnt bones of deceased allegedly recovered on pointation of appellant vide recovery were sent for DNA analysis but same were found to had been burnt to ashes--As such DNA analysis could not be performed--That being so, if cannot he held with certainty that bones allegedly recovered were if--In such backdrop, recoveries above referred shown by prosecution in this case are not sufficient to connect appellant with commission of crime--"No motive for crime has been alleged in
FIR--As dead body was, not recovered, there is no medical evidence except reports of chemical examiner and that of Serologist showing human blood on woven ropes recovered--However, no evidence was available to claim that blood on said pieces of rope was of deceased--In a case depending upon circumstantial evidence, there should have been established a chain of circumstances starting from missing of deceased leading to neck of accused--However, in case in hand, links of weak type of chain of circumstances are missing--Appeal was allowed.          [Pp. 142, 143 & 144] A, B & C

Mr. Aamir Javed Bhatti, Advocate for Appellant.

Mr. Muhammad Nawaz Shahid, Deputy Prosecutor General for State

Mr. Zikriya Yousaf Toor, Advocate for Complainant.

Date of hearing: 7.12.2020.

 PLJ 2021 Cr.C. (Lahore) 139
Present: Ch. Mushtaq Ahmad, J.
MUHAMMAD SAFDAR--Appellant
versus
STATE--Respondent
Crl. A. No. 54-J of 2013, heard on 7.12.2020.

Judgment

Through this criminal appeal Muhammad Safdar appellant has challenged his conviction and sentence. He was tried by learned Additional Sessions Judge, Faisalabad in case FIR No. 205 dated 04.03.2011 registered at Police Station Nishat-abad, Faisalabad. On conclusion of trial, appellant was convicted vide judgment dated 31.01.2013 and sentenced as under:

(i)       Convicted under Section 302(b) read with Section 34 PPC and sentenced to undergo imprisoment for life with compensation under Section 544-A Cr.P.C. to the tune of Rs. 2,00,000/-.

Benefit under Section 382-B, Cr.P.C. was extended to the appellant.

2. FIR was registered on the basis of complaint Ex.P-A moved by Muhammad Yaseen (PW-3). As per FIR. complainant was resident of Chak No. 8/JB. Complainant's nephew (bhaanja) Zohaib Ameer aged 24-25 years was residing with him since his birth. Muhammad Safdar (appellant) often used to make telephone calls to complainant's nephew. On 01.02.2011 Muhammad Safdar (appellant), Ibrar Hussain (co-accused since exonerated) and two unknown persons came to complainant and in presence of Ijaz Aslam (since given up) and Muhammad Rafee (PW-4) took Zohaib Ameer with them to Nisar Awan at Chak No. 54 R.B. Complainant repeatedly went to Nisar Awan resident of Chak No. 54/RB alongwith Abdul Ghafoor (since given up) and Muhammad Asif for inquiring about Zohaib Ameer. Muhammad Safdar. Ibrar Hussain and others had been promising for return of Zohoib Ameer but ultimately they refused. Complainant had suspicion that Muhammad Safdar, Ibrar Hussain and others in connivance with Nisar Awan had murdered his nephew Zohaib Ameer or they had concealed him for some ulterior purpose.

3. FIR was initially registered for the offence under Section 365, PPC Investigation of this case was conducted by Muhammad Ramzan SI (PW-6). Appellant Muhammad Safdar was arrested on 22.03.2011. During investigation, appellant disclosed that Zohaib Ameer had been murdered by him, whereupon Sections 302, 201, 404, 34, PPC were added by Investigating Officer on 27.03.2011. On completion of investigation, appellant was sent up to face trial alongwith co-accused Ehsan-ul-Haq. He was charge sheeted by learned trial Court. He pleaded innocence and claimed for trial. Prosecution in order to prove charge, examined six witnesses. After completing prosecution's evidence, statement of appellant under Section 342, Cr.P.C. was recorded. He again pleaded innocence. He did not opt to appear as his own witness under Section 340(2), Cr.P.C. Appellant did not choose to produce evidence in his defence. On conclusion of trial, appellant was convicted and sentenced as mentioned in opening paragraph of this judgment. Hence, this appeal.

4. I have heard learned counsel for the parties and learned Deputy Prosecutor General at length and perused the record with their able assistance.

5. There is no direct evidence to connect the appellant with commission of offence. In the FIR, complainant alleged that his nephew Zohaib Ameer (deceased) was taken alongwith them by appellant Muhammad Safdar and Ibrar Hussain co-accused alongwith two unknown persons on 01.02.2011 in presence of Ijaz Aslam (since given up) and Muhammad Rafee (PW-4). Zohaib Ameer did not return and as per prosecution's own showing, complainant and witnesses had been inquiring from appellant and co-accused about Zohaib Ameer who, had been promising to return him but ultimately refused. Despite that, matter was not reported to police timely. There is delay of more than one month in reporting the crime to police, for which only explanation given in the FIR is that accused had been promising for return of Zohaib Ameer. Such explanation, on the face of it is not confidence inspiring. Appellant was named in the FIR alongwith one Ibrar Hussain and two unknown persons but quite surprisingly, Ibrar Hussain co-accused was exonerated by complainant through an affidavit which was made part of judicial record while recording statement of complainant PW-3. Had complainant's nephew been taken with them by appellant and co-accused Ibrar Hussain in presence of complainant and witnesses and had they been promising for his return as alleged by prosecution, there could hardly be an occasion for not reporting the matter to police, but in the case in hand there is considerable delay of more than one month. Likewise, complainant's act of exonerating co-accused Ibrar Hussain, also makes his version highly doubtful. Moreover complainant PW-3 and Muhammad Rafee PW-4 in their statements made a lot of improvements, which were confronted to them by defence during cross examination. Besides statements of PW-3 and PW-4 qua last seen. prosecution has relied upon following pieces of circumstantial evidence in shape of recoveries:

"(i)     A pistol .30-bore allegedly recovered on pointation of appellant during investigation on 28.03.2011, which was taken into possession by Muhammad Ramzan SI PW-6 vide recovery memo Ex.P-B attested by complainant PW-3 and Ijaz Aslam (since given up).

(ii)      A mobile phone container box allegedly belonging to Zohaib Ameer deceased, which was produced by complainant PW-3 before Muhammad Ramzan SI PW-6 and the latter took into possession vide recovery memo Ex.P-C attested by Abdul Ghafoor (since given up) and Muhammad Rafee PW-4.

(iii)     Blood stained woven ropes of a cot recovered on pointation of appellant on 27.03.2011 which was taken into possession by Muhammad Ramzan SI PW-6 through recovery memo Ex.P-D attested by Abdul Ghafoor (since given up) and Muhammad Rafee PW-4.

(iv)     Mobile phone and laminated photo copy of National Identify Card of Zohaib Ameer deceased, recovered on pointotion of appellant on 27.03.2011, which were taken into possession by Muhammad Ramzan SI PW-6 vide recovery memo Ex.P-E attested by Abdul Ghafoor (since given up) and Muhammad Rafee (PW-4).

(v)      Burnt bones of Zohaib Ameer deceased, recovered on pointation of appellant on 27.03.2011, which were taken into possession by Muhammad Ramzan SI PW-6 vide recovery memo Ex.P-F attested by Abdul Ghafoor (since given up) and Muhammad Rafee (PW-4).

Complainant PW-3 is also witness of recovery of pistol 30-bore taken into possession by PW-6 Investigating Officer vide recovery memo Ex.P-B. In his examination in chief, complainant PW-3 did not tell the date of recovery of said pistol. Moreover, no empty was recovered from the spot, as such no comparison was made with the pistol recovered on pointation of appellant. Therefore, no evidence is available on record to conclude with certainty that the pistol taken into possession by Investigating Officer vide Ex.P-B was the same which was used by appellant for firing on the deceased. Second witness of Ex.P-B was Ijaz Aslam. Who was given up being won over by accused. Abdul Ghafoor, one of the witnesses of recovery memos Ex.P-C, Ex.P-D, Ex.P-E and Ex.P-F was also given up by prosecution being won over by accused. Muhammad Rafee, another witness of said recovery memos in his examination in chief also did not disclose the dates of said recoveries. Burnt bones of deceased allegedly recovered on pointation of appellant vide recovery memo Ex.P-F were sent for DNA analysis but the same were found to had been burnt to ashes, as such DNA analysis could not be performed. That being so, if cannot be held with certainty that the bones allegedly recovered vide Ex.P-F were of Zohaib Ameer. In such backdrop, recoveries above referred shown by prosecution in this case are not sufficient to connect the appellant with commission of crime. "No motive for crime has been alleged in FIR. As dead body was not recovered, there is no medical evidence except reports of chemical examiner and that of Serologist showing human blood on woven ropes

recovered vide Ex.PD. However, no evidence was available to claim that blood on said pieces of rope was of the deceased. In a case depending upon circumstantial evidence, there should have been established a chain of circumstances starting from missing of deceased leading to the neck of accused. However, in the case in hand, links of weak type of chain of circumstances are missing.

6. On re-appraisal of evidence, I have found that prosecution had failed to prove charge against appellant. Findings of conviction and sentence recorded against appellant in the impugned judgment are not sustainable. which are hereby set aside allowing this criminal appeal. Resultantly, appellant is acquitted of the charge. He is in jail. He be released forthwith if not required in any other case.

(A.A.K.)          Appeal allowed