Tanveer Ayub vs Muhammad Anwar etc.

Crl.Apeeal.No.177-2012

Tanvir Ayub Muhammad Anwar, etc.

30.10.2014. Mr.Gohar Razzaq, Advocate for the appellant.

Through the instant appeal filed in terms of Section 417 (2-A) of Cr.P.C., Tanvir Ayub, appellant has challenged the legality of order dated 22.12.2011 passed by the learned Additional Sessions Judge, Sargodha whereby respondents No.1 & 2 were acquitted in case F.I.R. No.348-2011 dated 06.07.2011, registered under offences 302, 392, 411, 34 P.P.C., at Police Station, Jhal Chakian, Sargodha.

2.It is the prosecution’s case that the complainant-Tanvir Ayub (PW-8) who was Hawaldar in Pak-Army and was posted at Barnala Kashmir was on leave on 06.07.2011 and was at his home, when his sister Mst. Farhat Afroz at about 10:30 a.m. informed him telephonically that “today Mst.Farkhanda has been murdered by unknown persons”. After receiving this information from his sister, the complainant along with his mother, Malik Iltaf Hussain, maternal uncle and Muhammad Arif reached at the house of Mst. Farkhanda and found that Mst. Farkhanda was lying in pool of blood and there was a cloth around her neck. They found three wounds of fire arms on the chest and abdomen of Mst. Farkhanda whereas house hold articles were lying scattered. It is reported that some unknown person had murdered Mst. Farkhanda by

making three fires, by putting cloth around her neck and by giving her electric current. The complainant’s sister Mst. Farkhanda was married with Arshid Abbas; she was qualified midwife; she had constructed her home at Munawar Town Dakhali Haiderabad, Sargodha and was residing with her husband-Arshid Abbas and was also running a clinic in her house.

3.It is at this time that the complainant-Tanvir Ayub (PW-

8)on 02.08.2011 through his supplementary statement nominated accused persons namely Muhammad Anwar and Saif ullah (respondents No.1 & 2).

4.The learned counsel for the appellant contends that the impugned judgment is against the law and facts; that circumstantial evidence in the shape of extra-judicial confession by the respondents No.1 & 2 coupled with recovery of bloodstained dagger and ear rings from respondent No.1 have wrongly been disbelieved by the learned trial court and that the acquittal of the respondents No.1 & 2 is based on surmises and conjectures.

5.We have anxiously attended to the arguments addressed by the learned counsel for the appellant.

6.It is noticed that the evidence against the respondents No.1 & 2 is of joint extra-judicial confession made before Haroon Mehmood (PW-9) and Mehr Muhammad Akhtar (PW-

10)on 27.07.2011. We find the joint extra-judicial confession to be improbable and lacking in credence. According to Haroon Mehmood (PW-9), the confessing accused-Muhammad Anwar (respondent No.1) made confession that they committed the dacoity and murder of Mst. Farkhanda Bibi, whereas

according to Mehr Muhammad Akhtar (PW-10), the confessing accused, respondents No.1 & 2 came to them and blurted out confessions. From the prosecution story, it reveals that murder of Mst. Farkhanda was committed in a most heinous manner. The persons who committed murder to conceal their identification and under a veil of secrecy, would not come forward and they would acquire a sudden pronounce to blurt out and made confession. We also noted that it was significant that Haroon Mehmood (PW-9) and Mehr Muhammad Akhtar (PW-10) were not in such a position that respondents No.1 & 2 would be willing to repose their confidence in them. It is alleged that on 27.07.2011 respondents No.1 & 2 confessed before PW-9 and PW-10 whereas same is brought on the record on 02.08.2011 through supplementary statement made by Tanvir Ayub-complainant (PW-8) with unexplained delay of seven days. There is no reason as to why after 21 days of the incident, the accused would go to the above referred PWs to make a joint confessional statement. If they had done so, there were no reasons for PW-9 and PW-10 to have kept mum for seven days. As far as recovery of the bloodstained dagger and ear rings can be relied upon is the question of fact and depends upon the facts of each case. In this case particularly when the witness-Arshid Abbas has not been produced as witness by the prosecution to corroborate the fact of recovery of ear rings and blood-stained dagger. The fact of recoveries in pursuance of joint extra-judicial confession after 35 days can not be relied upon. In such circumstances, in absence of corroboration of the fact of recovery by independent witness, the recovery made by

the Investigating Officer does not inspire faith. The remaining evidence is not sufficient enough to connect the respondents No.1 & 2 with the murder of Mst. Farkhanda-deceased. The learned trial court has applied his conscious mind to the relevant evidence and has also appreciated the evidence in the light of principles laid down by the superior Courts. Learned counsel has tried to persuade us to accept the evidence of joint extra- judicial confession furnished by PW-9 and PW-10 without any ocular account. It is settled principle of law that joint extra-judicial confession is inadmissible in evidence. So far recovery of blood-stained dagger is concerned, if accepted would not be adequate enough to record any finding of guilt on a capital charge in view of our above findings on this point.

7.In an appeal against acquittal against the judgment of learned trial court qua finding of acquittal, this Court does not interfere with the appraisement of the evidence by the learned trial court unless that appraisement is vitiated by some glaring infirmity. No such infirmity has been brought to our notice. In out opinion, this appeal has no merits, which is accordingly dismissed in limine.

(Mazhar Iqbal Sidhu) (Aalia Neelum) Judge Judge

Approved for reporting. .

A.S.Khan.