Muhammad Amjid VS State

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

JUDICIAL DEPARTMENT

Criminal Appeal No. 59 of 2009 (Muhammad Amjad Vs. The State etc.)

Criminal Revision No. 37 of 2009 (Abdul Kareem Vs. Muhammad Amjad etc.)

Date of hearing: 14-05-2014

Appellant by: Muhammad Amjad appellant in person.

Complainant by: Mian Muhammad Tayyab Watoo, Advocate.

State by: Mr. Khalid Pervaiz Uppal, DPG SADAQAT ALI KHAN, J.:- This single judgment shall dispose of Criminal Appeal No. 59 of 2009 filed by Muhammad Amjad present appellant (against his conviction) and Criminal Revision No. 37 of 2009 filed by Abdul Kareem complainant (for enhancement of the sentence of Muhammad Amjad present appellant) as all these matters have arisen out of same judgment dated 20.02.2009 passed by learned Additional Sessions Judge, Haroonabad according to which Muhammad Amjad present appellant was convicted and sentenced as under:- “Muhammad Amjad was convicted under section 302(b) PPC and sentenced to life imprisonment as Tazir alongwith fine Rs.1,00,000/- payable to the legal heirs of the deceased Abdul Ghaffar and in default thereof further undergo six months.”

Benefit of section 382-B Cr.P.C was also extended to the present appellant, whereas his co-accused namely Muhammad Bakhsh, Allah Bakhsh, Muhammad Alam and Abdul Majeed were acquitted from the charge by the learned trial court in case FIR No. 255 dated 15.8.2007 under section 302/34 PPC police station Sadar, Haroonabad.

2.The facts of the case has been narrated by Abdul Kareem complainant PW-5 real brother of Abdul Ghaffar

Criminal Revision No.37 of 2009 deceased in his statement before the trial court and same statement is hereby reproduced for narration of the facts of the instant case: - “About one year and two months back at evening time, Imran Ali S/O Saaran and Bashir s/o Kamal Din had come to my house to inquire about the health of my brother who was ill. In the meantime, after a short while Muhammad Amjad S/O Allah Dittah and Muhammad Bux s/o Lakhmeer also came there to inquire about the health of my mother. After some time while leaving my house Muhammad Amjad and Muhammad Bux accused persons present in court asked my brother Abdul Ghaffar (deceased) to accompany them. Thereafter, he also left my house alongwith them. After a lot of time when my brother did not come back, I worried about him. I alongwith Imam Ali and Bashir Ahmad went in search of my brother. When we reached in the land of Muhammad Amjad accused, we saw that on a cot Muhammad Amjad, Muhammad Bux, Allah Bux, Aalam Ali (attendance dispensed with) and Abdul Majeed present in court were sitting on cot and were talking. When we asked my brother Abdul Ghaffar deceased to accompany us, Amjad accused present in court stated that our turn of water is going on and after its end, we will send him back in the house. Thereafter, we came back. I went to my house and Imam Ali and Bashir Ali also went to their houses. Till morning when I got up, I found that my brother Abdul Ghaffar had not come back to his house. I alongwith Imam Ali and Bashir Ahmad went to the house of Muhammad Amjad accused present in court. After locating him we inquired from him about Abdul Ghaffar, he in the beginning tried to avoid to tell us about the presence of Abdul Ghaffar at one pretext or the other and when we pressurized him, he told us that we have committed the murder of Abdul Ghaffar. He stated the reason that he had illicit relations with the wife of co-accused Alam Ali who is my maternal uncle and for this reason. Abdul Majeed accused provided tablet of eighty won which we administered to Abdul Ghaffar through tea. Alam Ali stated that I will go soon after the occurrence to Karachi on my duty and I will enter my presence there in my attendance Register as I myself Incharge of that Register. After serving tea, when Abdul Ghaffar went to a sound sleep, we tied his

Criminal Revision No.37 of 2009

hands and abdomen with the cot and then I inflicted injuries on his person with a Kassi and thereafter we buried him after digging a pit on a nearby sand. Thereafter, Muhammad Amjad accused told us that he is ready to company us the place where they have buried the deceased.

Accordingly, he took us to the sand dew/Tebbi where the dead body of Abdul Ghaffar was lying buried. After reaching there, we took Kassi from the Dera of Muhammad Bux and started digging the place pointed by Amjad accused ,present court to recover the dead body. When we digging the same and busy in that process, Muhammad Amjad accused slipped away from the place and disappeared. After discovering the dead body, I left Imam Ali, Bashir Ahmad and other persons present there to guard the dead body and went to the Police Station for registration of the case. I narrated the above said facts to the I.O. who recorded the same which was read over and explained to me and thereafter I signed the same i.e. Exh.PB in token of its correctness”

3.After registration of the case, investigation started and on completion of the investigation report under section 173 Cr.P.C was submitted in the trial court.

4.Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 16.9.2008 against present appellant Muhammad Amjad and his co-accused (since acquitted) namely Muhammad Bakhsh, Allah Bakhsh, Muhammad Alam and Abdul Majeed under sections 302, 148/149 PPC to which they pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced doctor Zulifqar Ali CMO THQ Hospital Haroonabad PW-1, Naseer Ahmed HC PW-2, Rafaqat Ali Constable PW-3, Salamat Ali PW-4, Abdul Kareem complainant PW-5, Imam Ali PW-6, Abdul Hameed Qaddafi Incharge Investigation Circle, Haroonabad PW-7, Muhammad Rasheed PW-8, Rab Nawaz SI PW-9 Muhammad Zahid Majeed Inspector/SHO PW-10, Mozaffar Iqbal ASI PW-11, whereas PW Bashir Ahmad was given up being unnecessary and after producing documentary evidence

Criminal Revision No.37 of 2009

i.e. postmortem report Ex.PA, injury statement Ex.PA/1 & Ex.PA/2, inquest report Ex.PA/4, FIR Ex.PB, recovery memo of Kassi blood stained Ex.PC, recovery memo of last worn clothes of the deceased Ex.PD, recovery memo of iron cot Ex.PE, recovery memo of Kassi Ex.PF, rough site plan Ex.PG, scaled sight plan Ex.PG/1, report of chemical examiner Ex.PH, report of Serologist Ex.PH/1, report of Chemical Examiner, Lahore Ex.PI, report of Serologist Ex.PI/1, closed the prosecution evidence.

6.On the other hand, statements of present appellant alongwith his co-accused stated above were recorded under section 342 Cr.P.C who refuted the allegations so leveled against them but have not opted to appear as a witness under section 340(2) Cr.P.C and did not produce the defence evidence and in reply to question “why this case against you and why the PWs deposed against you?” the present appellant Muhammad Amjad replied as under: -

“I have been falsely implicated in this case. I am innocent. The complainant is brother of the deceased while other PW is related inter se with the deceased and complainant. They have deposed falsely against me. In fact there was a political rivalry between us and the complainant party. One Malik Nasir Naib Nazam of Union Council has personal grudge against me. After the murder, he finding an opportunity falsely implicated me and my co-accused in this case. In fact it was a blind murder and nobody had witnessed this occurrence. Nasir Mahmood Naib Nazam made me escape good in this case”.

7.Medical evidence was furnished by Dr. Zulifqar Ali PW-1, CMO THQ Hospital, Haroonabad who on 16.8.2007 conducted the postmortem examination on the dead body of Abdul Ghaffar Yasin deceased and observed following injuries: -

“EXTERNAL APPEARANCE.

Injury No.1 (Mark of ligature on neck and dissection etc) There was an incised wound below the mandible on the anterior aspect of neck at highest point. Carotid vessels had been cut on both sides

CONDITION OF SUBJECT:

Criminal Revision No.37 of 2009 A young stout man bearing beard and moushtaches was lying on Charpai, face had been defaces by injuries described below. Rigor mortis had finished after developing. He was wearing blue coloured Shalwar.

WOUND, BRUISES, POSITION SIZE, NATURE.

Injury No.1 There was incised wound on face involving eyeballs, bridge of nose extending more on right side. Scalp and skull bone had been cut upto ear on right side upto cheek on left side. Injury No.2 There was incised wound above the moustaches involving the nostrils. Both maxilla had been cut.

Injury No.3 There was an incised wound below the Mandible on the anterior highest point of neck above the hyoid bone involving the carotid vessels.

Injury No.4 There were two abrasions on the arm (right) confined to superficial skin at and above elbow measuring 3 x 2.5 and 2.5 CM. Injury No.5 There was an abrasion on left arm measuring 12 cm x 10 cm confined to superficial skin only.

Injury No.6 There were abrasions on the right side of chest measuring 10-12 cm inferior to right brest nipple, 10 cm x 2 cm confined to superficial skin.

Injury No.7 Multiple abrasions on left side of chest and Abdomen involving superficial skin measuring 5 x 10 cm, 10 x 10 cm and 10 x 5 cm. Injury No.8 There were two incised wound on the anterior part of head near anterior scalp hairline measuring i) 10 cm x 1.0 cm, bone exposed ii) 10 cm x 0.5 cm skin deep..

CRANIUM AND SPINAL CORD.

SCALP, SKULL AND VERTEBRAE.

Scalp and skull bones had been cut by the injuries already described. Brain matter was lying exposed. Vertebrae were intact.

MEMBRANES, BRAIN, SPINAL CORD.

Membranes and brain had been cut by the injuries.

Spinal cord was intact.

THORAX.

Larynx and trachea were cut at the site of injury. Right and left lungs were healthy but black spots were present on the surface which were due to smoking. Paricardium and heart were healthy, right heart contained liquid blood and left heart contained clotted blood.

Criminal Revision No.37 of 2009

Blood vessels healthy except carotid vessels which were cut at the site of injury. All other visceras were healthy.

ABDOMEN.

Stomach contained semi digest and undigested food particles Small intestines contained semi digested food particles.

Large intestines contained faecal matter. Bladder contained little amount of urine. All other visceras were healthy.

MUSCLES, BONES, JOINTS.

Already described.

REMARKS.

In my opinion death had occurred due to incised injuries as already described by some heavy cutting weapon like Kassi, resulting in excessive haemorrhage and shock i.e. Injury Nos. 1, 2 & 3 were sufficient to collectively to cause death in ordinary course of life. All injuries were antimortem. However, I kept my final opinion reserved till the receipt of report of Chemical Examiner for detection of poison or any other narcotic substance. Probable time between injuries and death immediately and between death and postmortem examination with 36 hours.

8.After conclusion of the trial, learned trial court convicted the present appellant Muhammad Amjad with above stated sentence and acquitted his co-accused namely Muhammad Bakhsh, Allah Bakhsh, Muhammad Alasm and Abdul Majeed Hence this appeal.

9.Appellant Muhammad Amjad contended that:-

(i)the judgment of the trial court dated 20.02.2009 is against law and facts on the file and is liable to be set-aside;

(ii)it is submitted that the story of the prosecution is improbable and not believable;

(iii)it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant in surmises and conjectures;

Criminal Revision No.37 of 2009

(iv)further submitted that motive is not attributed to the present appellant and nothing was recovered from or on pointation of the appellant and lastly submitted for the acceptance of the appeal;

10.On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-

(i)prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal;

(ii)learned counsel for the complainant further submitted in criminal revision No. 37 of 2009 filed by complainant Abdul Kareem for enhancement of the sentence of Muhammad Amjad present appellant that the learned trial court without any legal justification convicted Muhammad Amjad present appellant with lesser sentence and he is liable to be convicted with maximum sentence provided under the law.

11.I have heard the learned counsel for the parties and perused the record.

12.The detail of prosecution case as mentioned in complaint recorded on the statement of Abdul Kareem PW-5 has already been given in paragraph No. 2 of this judgement, therefore, there is no need to repeat the same.

13.According to FIR the occurrence took place in between night of 14/15 August 2007 whereas FIR Ex.PB was registered on 15.8.2007 at about 5:15 pm on the statement of Abdul Kareem complainant PW-5 real brother of Abdul Ghaffar deceased.

14.Admittedly, Abdul Ghaffar is not an eye witness of the occurrence and the postmortem examination was conducted on the dead body of Abdul Ghafar on 16.8.2007 at about 09:10 am - 11:30 am by doctor

Criminal Revision No.37 of 2009

Zulifqar Ali PW-1 after the recovery of the dead body on 15.8.2007 (no time of recovery of dead body is given) as stated by Abdul Kareem complainant/PW-1. The case of the prosecution is based on circumstantial evidence which can be categorized as under: -

(i)last seen evidence furnished by Abdul Kareem complainant PW-5 and Imam Ali PW-6.

(ii)evidence of extra judicial confession furnished by Abdul Kareem complainant PW-5 and Imam Ali PW- 6 relative of the deceased as well as the complainant.

(iii)medical evidence furnished by Dr. Zulifqar Ali PW-1 CMO, THQ, Hospital, Haroonabad.

(iv)evidence of recovery of ‘Kassi’ P-4, mobile phone P-3 and iron cot P-2 furnished by Imam Ali PW-6 and Rabnawaz SI/I.O of this case PW-9.

(v)Motive furnished by Abdul Kareem complainant/PW-5.

15.Now I take up the afore-mentioned pieces of evidence separately.

16. LAST SEEN EVIDENCE FURNISHED BY ABDUL

KAREEM COMPLAINANT PW-5 IMAM Ali PW-6 Abdul Kareem complainant/PW-5 stated that about one year and two months back at evening time from recording of his statement i.e. 31.10.2008, Imam Ali PW-6 Bashir Ahmed (given up PW) come to his house for inquiring about the health of his mother who was ill. In the meantime, after a short while Amjad present appellant and Muhammad Bakhsh (acquitted accused) also came there to inquire about the health of his mother. After some time while leaving his house Muhammad Amjad present appellant and Muhammad Bakhsh (acquitted accused) asked his brother Abdul Ghaffar deceased to accompany them. Thereafter he also left his house alongwith them. After a lot of time when his brother did not come back he became worried about him and he alongwith Imam Ali PW-6 and Bashir

Criminal Revision No.37 of 2009

Ahmed (given up PW) went in search of his brother Abdul Ghaffar deceased and reached in the land of Muhammad Amjad present appellant and saw that on a cot Muhammad Amjad present appellant, Muhammad Bakhsh, Allah Bakhsh, Alam Ali and Abdul Majeed (acquitted accused) were sitting and were talking. When they asked about his brother Abdul Ghaffar deceased to accompany us, Amjad present appellant also stated that their turn of water is going on and after its end they will send him back in the house. Thereafter, they came back. Imam Ali PW-6 narrated the same story as stated by PW-5 Abdul Kareem complainant.

17.Admittedly this above stated last seen evidence has been disbelieved by the trial court to the extent of Muhammad Bakhsh, Allah Bakhsh, Muhammad Alam, Abdul Majeed co-accused of the present appellant and they were acquitted by the trial court through the impugned judgment and Criminal Appeal No. 72 of 2009 filed by Abdul Kareem PW-5 has been dismissed by this court and same last seen evidence to the extent of present appellant Muhammad Amjad could not be believed. Even otherwise, last seen evidence is a weakest type of evidence and can be procured at any stage of the investigation by the prosecution whenever it is required and same is hereby also disbelieved to the extent of Muhammad Amjad present appellant. Reliance is placed on case titled Altaf Hussain V. Fakhar Hussain and another (PLJ 2008 SC 687).

18. EVIDENCE OF EXTRA JUDICIAL CONFESSION FURNISHED BY

ABDUL KAREEM COMPLAINANT PW-5 AND IMAM ALI PW-6

RELATIVE OF THE DECEASED AS WELL AS THE COMPLAINANT.

Abdul Kareem PW-5 complainant stated that till morning when he got up and found that his brother Abdul Ghaffar had not come back to his house he alongwith Imam Ali PW-6 and Bashir Ahmed (given up PW) went to the house of Amjad present appellant and after locating him they inquired from him about Abdul Ghaffar deceased he in the beginning tried to avoid to tell them about the presence of Abdul Ghaffar on one pretext or the other and when they pressurized him he

Criminal Revision No.37 of 2009

told them that they committed the murder of Abdul Ghaffar with the reason that he had illicit relations with the wife of Imam Ali (acquitted accused) who is his maternal uncle. Abdul Majeed (acquitted accused) provided tablet –Ativan (81) which they administered to Abdul Ghaffar through tea. Alam Ali acquitted accused stated that he will go soon after the occurrence to Karachi on his duty and will enter his presence there in attendance register. After serving the tea, when Abdul Ghaffar went to a sound sleep they tied his hands and abdomen with the cot and then he inflicted injuries on his person with’ Kassi’ and thereafter they buried him after digging a pit on a nearby ‘sand’ and further Muhammad Amjad present appellant told them that he is ready to take them where they buried the deceased. Accordingly he took them to the ‘sand’ where the dead body of Abdul Ghaffar was lying buried. After reaching there they took ‘Kassi’ from the Dera of Muhammad Bakhsh (acquitted accused) and started digging the place pointed out by Muhammad Amjad present appellant to recover the dead body and they were digging the same and busy in that process, meanwhile Muhammad Amjad appellant slipped away from the place and disappeared. Imam Ali PW-6 narrated the same story. Abdul Kareem complainant PW-5 stated in cross-examination that he did not mention in FIR Ex.PB that Abdul Majeed (acquitted accused) provided Ativan (81) tablets to Muhammad Amjad present appellant who served the same to the deceased Abdul Ghaffar through tea. He further stated that he did not state in Ex.PB (FIR) that Alam (acquitted accused) stated to Muhammad Amjad etc that he will get his attendance registered in a register after going back to Karachi soon after the occurrence. He further stated that he did not state in FIR Ex.PB that Muhammad Amjad present appellant stated that after taking tea deceased Abdul Ghaffar went to a sound sleep and they tied him and murder him. He further stated that he did not state in FIR Ex.PB that they took two ‘Kassi’ from the Dera of

Criminal Revision No.37 of 2009

Muhammad Bakhsh (acquitted accused) for digging the place.

19.In view of the above it is concluded that Abdul Kareem PW-5 made dishonest improvements in his statement to strengthen the prosecution case and it is settled principle of law that when the witness improve his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witenss has improved his statement dishonestly and his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubts on the veracity of the said witness. Reliance is placed on case titled Akthar Ali and others Vs. The State (2008 SCMR 6). Abdul Kareem PW-5 and AIam Ali PW-6 both witnesses stated that the dead body of Abdul Ghaffar deceased was buried in ‘sand’/mud but doctor Zulfiqar Ali PW-1 did not observe any sand on any part of the dead body of Abdul Ghaffar deceased. Further Abdul Kareem PW-5 and Imam Ali PW-6 have not stated the place and the time of making of alleged extra judicial confession by Muhammad Amajd present appellant and admittedly after making the alleged extra judicial confession he was not arrested by Abdul Kareem PW-5 and Imam Ali PW-6 and their explanation that Amjad was slipped away from them is not acceptable and important aspect of this case is that Abdul Kareem PW-5 real brother of Abdul Ghaffar is silent about the fact that why post mortem examination of Abdul Ghaffar deceased was conducted on 16.8.2007 at about 9:10 am -11:30 am on the next day from recovery of the dead body i.e. 15.8.2007 as stated by Abdul Kareem complainant PW- 5 and further no time of recovery of dead body is given by the prosecution and doctor Zulifqar Ali PW-1 stated that probable time between death and postmortem was 36 hours and complainant did not explain that they after the recovery of dead body on 15.8.2007 where kept the same and was not brought in the hospital for

Criminal Revision No.37 of 2009

autopsy. This sole fact is sufficient to create doubt in the prosecution story regarding making of alleged extra judicial confession by the present appellant Muhammad Amjad. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.

20.Evidence of extra judicial confession allegedly made by Muhammad Amjad present appellant before Abdul Kareem PW-5 real brother of the deceased Abdul Ghaffar and Imam Ali PW-6 relative of the deceased and the complainant is concoction and same is not believable. Even otherwise, court before acting upon retracted extra judicial confession must inquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true because an extra judicial confession is not a direct evidence and it must be corroborated in material particulars before being made the basis of conviction and the status of the person before whom extra judicial confession is made must be kept in view. Extra judicial confession is always a week type of evidence which can easily be procured whenever direct evidence is not available.

21.In view of the above, the evidence of Abdul Kareem PW-5 and Imam Ali PW-6 is hereby disbelieved Reliance is placed on case Hamid Nadeem V. The State (2011 SCMR 1233) in which Hon’ble Supreme Court of Pakistan has observed at page 1237 as under: - “We are well-conscious of the fact that conviction can be based on extra judicial confession when it is corroborated by other reliable evidence. However, extra judicial confession being regarded as a weak type of evidence by itself, utmost care and caution has to be exercised in placing reliance on such confession. Recovery of crime weapon and blood stained clothes of appellant could have supported the prosecution case but in the instant case that too are not beyond doubt as would be clear from the subsequent discussion”

22. MEDICAL EVIDECNE FURNISHED BY DR. ZULIFQAR

ALI PW-1 CMO THQ HOSPITAL HAROONABAD.

Criminal Revision No.37 of 2009

Medical evidence was furnished by Doctor Zulifqar Ali PW-1 who stated that on 16.8.2007 he conducted postmortem examination on the dead body of Abdul Ghaffar deceased and observed eight injuries on the body of the deceased detail of which has already been given by me in para No.7 of the judgment and further stated that probable time elapsed between death and postmortem was 36 hours which itself negates the prosecution story. According to postmortem report Ex.PA, postmortem was conducted on the dead body on 16.08.2007 at about 9:10 am -11:30 am whereas according to the prosecution, dead body was recovered on 15.08.2007 but no time of recovery of dead body has been given by the prosecution rather was concealed intentionally and prosecution is silent where the dead body was kept by the prosecution in intervening period. Even otherwise, medical evidence may confirm the ocular account with regard to the seat of the injuries, nature of the injury, kind of weapon used in the occurrence but is not connected the accused with the commission of crime.

23. EVIDENCE OF RECOVERY OF KASSI P-4, MOBILE PHONE P-3

AND IRON COT P-2 FURNISHED BY IMAM ALI PW-6 AND RABNAWAZ

SI/I.O OF THIS CASE PW-9.

Imam Ali PW-6 stated that after about 2/3 days less than one month he and Bashir Ahmed (given up PW) joined the investigation of this case and Muhammad Amajd appellant disclosed and led to the recovery of ‘Iron cot’ P-2 from his house lying in the gallery and also got recovered mobile phone Ex.P3 from his residential room which was taken into possession through recovery memo Ex.PE by Rabnawaz SI/I.O of this case PW-9 and further stated that Muhammad Amjad present appellant on the same day got recovered ‘Kassi’ blood stained P-4 from the Dera of Muhammad Bakhsh (acquitted accused) which was made into sealed parcel and took into possession through recovery memo Ex.PF attested by him. Rabnawaz SI/I.O of this case PW-9 stated that on 12.9.2009 Muhammad Amjad present appellant disclosed and led to the recovery of ‘Kassi’ P-4

Criminal Revision No.37 of 2009

from his Dera which was taken into possession through recovery memo Ex.PF after making into sealed parcel and on the same day Muhammad Amjad present appellant disclosed and led to the recovery of mobile phone P-3 and cot P-2 which was taken into possession through recovery memo Ex.PE. Rabnawaz SI/I.O of this case PW-9 did not state in his statement that ‘Kassi’ P-4 was blood stained at the time of recovery so the recovery in the instant case has become inconsequential and positive report of Chemical Examiner and Serologist are in significant. Reliance is placed on case titled Muhammad Attique Vs. The State (2011 SCMR 1378). As far as recovery of mobile phone P-3 from Muhammad Amjad present appellant is concerned, in the FIR complainant Abdul Kareem PW-5 has not stated that his brother Abdul Ghaffar deceased was having any mobile phone while leaving his house in his presence therefore no reliance can be placed on this evidence. Further Imam Ali PW-6 recovery witness admittedly is not resident of the locality of the place of recovery and place of recovery was surrounded by many houses but none was summoned in the recovery proceedings by the police. Such recovery is not worthy of any credence and could not be used against the accused in the circumstances and same is disbelieved. Reliance is placed on case titled Ghulam Akbar and other Vs. The State (2008 SCMR 1064) in which Hon’ble Supreme Court of Pakistan has observed at pages 1071 & 1072 as under: - “in the instant case, recovery witness Nazir Ahmed was not the resident of the locality and the Investigating Officer admitted that the place of recovery was surrounded by the 50/60 houses but none was summoned from the locality. According to PW-12 he was standing at a bus stand and was going to Sinjhoro (where he lived) when police reached there and he just accompanied them. Court did not take the above mentioned circumstances while placing reliance on the evidence and has erred in law. The recovery evidence is not worthy of credence and cannot be used against any of the appellants”

24. MOTIVE FURNISHED BY ABDUL KAREEM COMPLAINANT/PW-5

Criminal Revision No.37 of 2009

Admittedly, no motive has been given by the complainant in his statement before the police upon which FIR Ex.PB was recorded and further he stated before the trial court that present appellant Muhammad Amjad while making extra judicial confession before him stated that he alongwith other accused committed the murder of Abdul Ghaffar on the reason that Abdul Ghaffar deceased had illicit relations with the wife of Imam Ali (acquitted accused) which is not mentioned in the FIR and same is dishonest improvement made by Abdul Kareem PW-5 and I have already discarded the evidence of Abdul Kareem PW-5 and Imam Ali PW-6 regarding extra judicial confession and learned trial court also has disbelieved the motive in para No.35 of its judgement so motive is not believed and evidence of the complainant Abdul Kareem PW-5 is also disbelieved to this extent.

25.Sequel of the above discussion is that prosecution is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case titled Muhammad Akram Vs. The State (2009 SCMR 230) in which Hon’ble Supreme Court of Pakistan has observed at page 236 as under: - “the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to be benefit of doubt not as a matter of grace and concession but as a matter or right”.

26.From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by Abdul Kareem PW-5 and Imam Ali PW-6. Resultantly, salutary principle of benefit of doubt is extended in favour of the

Criminal Revision No.37 of 2009

appellant. The Criminal appeal No. 59 of 2009 filed by Muhammad Amjad, present appellant is accepted and conviction and sentence awarded by the learned trial court vide judgment dated 20.02.2009 is set-aside and the appellant is ordered to be acquitted of the charge in case FIR No. FIR No. 255 dated 15.8.2007 under section 302/34 PPC police station Sadar, Haroonabad by giving him the benefit of doubt. He is on bail. His surety stands discharged. (In view of above, Criminal Revision No. 37 of 2009 filed by Abdul Kareem complainant (for enhancement of the sentence of Muhammad Amjad present appellant) is dismissed.

(Sadaqat Ali Khan) Judge

Approved for Reporting

Irfan