Appellant Riaz and one Muhammad Ahmad were tried under Section 302 read with Section 34 PPC in case. FIR No, 42 dated 13.3.2001 registered with Police Station Raja Jang, District Kasur for on the night proceeding to the said date, i,e, 13.3.2001, in the area of Haveli Ghatianwali included in Raja Jang within the jurisdiction of that police station, in furtherance of their common intention committing the Qatal-e-Amd of deceased Tariq Mehmood.
2. On the conclusion of their trial, they both were found guilty of the Qatal-e-Amd of deceased and so vide the judgment recorded by Mr. Nussar Ali Naseem Awan, learned Additional Sessions Judge, Kasur on 26.2.2003 were convicted under Section 302 (b) PPC read with Section 34 PPC and sentenced to suffer imprisonment for life each and to pay compensation Rs, 50,000/- each to the legal heirs of the said deceased and in the event of their failure to do so, the same is to be recovered as arrears of land revenue and in case' of non recovery through that made even to further suffer six months SI each.
3. However, they both were extended the benefit of Section 382-B Cr.P.C..
4. Appellant Riaz feeling 'himself aggrieved of his conviction and sentence has brought the impugned judgment under attack through Criminal Appeal No, 280-J of 2003. However, his said co-convict had absconded at the time of pronouncement of the judgment and so he did not file any appeal against his conviction and sentence.
5. Muhammad Mushtaq, the brother of the deceased has brought Criminal Revision No, 208 of 2003 for enhancement in their sentence.
6. As both these matters have arisen out of 'one and the same judgment in a case, hence, are being disposed of by this single judgment.
7. The facts in detail have been incorporated in the impugned judgment. I, therefore, avoid to burden this judgment/record unduly by repeating all those here.
8. However, the facts in brief and strictly relevant for the disposal of these matters are that the said case has been registered on the statement Ex. PA of complainant Muhammad Hayat (PW-1), the father of the deceased on 13.3.2001. The same is to the effect that he resides in Haveli Ghatianwali included in Raja Jang and is a cultivator. He has land towards the sought of the village at a distance of three acres from the same. He has installed a crushing machine in his sugar-cane crop. The preceding night his son Tariq Mehmood slept in the field near the crushing machine for it's safety and that of the other luggage on 13.3.2001 at about 6:00 a.m. he aiongwith his son Abdul Sattar and one Muhammad Siddique son of Hashmat Ali came to the crushing machine for peeling the sugar-cane. His son Tariq Mehmood was found lying on the cot. He called him but he did not wake up. He removed the quilt from his face and found many sharp-edged weapon's wounds on his face and head and he was in the pool of blood and stood expired. He believed that some unknown persons had murdered him out of grudge.
9. He in his supplementary statement has nominated the appellant and his said co-convict as the culprits. They both after the investigation were challenged to the Court.
10. The learned trial Court had formally charged them under. Section 302 read with Section 34 PPC.
They pleaded not guilty.
11. The prosecution at their trial in support of it's case has produced it's 17 witnesses besides the reports EX PN and EX PO of the Chemical Examiner and EX PP and PQ of the Serologist.
12. The appellant and his co-convict in their statement under Section 342 Cr.P.C. have pleaded denial and their false implication in the case due to enmity. The appellant Riaz in reply to the question that as to why this case is against him and why the PWs have deposed against him has stated as follows:-- "I am innocent. PWs are inter se related as well as related with the complainant and the deceased, there was no enmity with of anybody including the deceased. Infact the deceased was engaged with daughter of Dara namely Fozia Bibi. The Dara had no male child and the said daughter of Dara was engaged to other person prior.tb the engagement with the deceased Tariq. The said Dara had six acres of land which had to go to his legal heir, the said Fozia. Therefore, the deceased might had been killed by one of those finances. The deceased and his brother and also enmity in the village with other people as they were of not good character, so, the deceased might have been killed by any of their enemies. I prohibited the deceased and his brother from such acts, so they were against me and involved me in the alleged case, Spy dogs were brought from agency of Col Ashraf at Okara on 14.3.2001 and I was arrested at the instance of the said dogs with suspicion after alleging the wrong motive. Moreover, I belong to Sunni Brailui Maslik, whereas the complainant is Ahl-e-Hadees. Therefore, I have been involved also due to the said reason. It is pertinent to mention that a theft was committed on the night of the occurrence in the village beside the village of Gathian Wala, So, those dacoits might had also killed the deceased. There are so many discrepancies, contradictions, and confrontation in the evidence which makes the story of the prosecution absolutely doubtful."
13. They, however, did not produce evidence in their defence and depose on oath in disproof of the allegation appearing against them in the prosecution evidence.
14. The learned trial Court after hearing the parties came to the conclusion that they were guilty of the charge of murder of the deceased. It with the same has convicted and sentenced them as mentioned above.
15. It has been argued on behalf of appellant Riaz that the evidence of the Waj Takar has been furnished by interested witnesses and so it could not be relied upon and the learned trial Court has erred in relying upon the same; that the evidence of their alleged extra judicial confession was not worth the while and so it has wrongly been relied upon by the learned trial Court; that the evidence of recovery of crime weapon from him has not been supported by any independent person and so it was also not reliable piece .of evidence and so, could not be used to corroborate the other evidence on the record against them; that the motive against them remained unproved on the record; and that in any case his conviction and sentence is not sustainable in the facts and circumstances of the case.
16. As against the same, the learned State counsel assisted by the counsel for the petitioner Mushtaq has supported the impugned judgment saying that the different pieces of the prosecution evidence on the record against the appellant and his co-convict Muhammad Ahmad were worth relying; that the evidence of Waj-Takar, extra judicial confession and recovery of the crime hatchet P-1 from the appellant has been furnished by the independent witnesses and they were not at all interested witnesses and so were worthy of placing reliance and were rightly relied upon; that the medical evidence has furnished support or corroboration to the other incriminating pieces of the evidence 'on the record 'against them and so the; same has rightly been received as so by the learned trial Court; that the reports of experts and the circumstances of the investigation were further supportive to the above mentioned incriminating evidence on the record against them; and that such evidence on the record against them has established their guilt to the hilt and so the impugned judgment of their conviction and sentence was rightly recorded.
17. However, the learned counsel for the petitioner (in Criminal Revision No, 208 of 2003) has submitted that as the appellant and his co-convict Muhammad Ahmad have taken the life of an innocent young man without any reason and so they have not adequately been punished and they in the facts and circumstances of the case deserved capital punishment but the same has not been awarded to them. He has requested that their sentence may be enhanced from the imprisonment of life to death.
18.I have carefully considered the submissions made from both the sides with the help of available record.
19. The prosecution in support of it's case against the appellant and his co-convict Muhammad Ahmad has mainly relied upon it's evidence regarding the motive, the Waj Takar, extra-judicial confession, the recovery of crime-weapon hatchet P-1 from the appellant and the medical evidence.
20. The learned trial Court did not believe the motive part of it's story. According to it, the same has remained unproved on the record. Hence, no discussion is called for in respect of the same.
21. As regards the evidence of Waj Takkar against them, the same has been furnished by Muhammad Din (Pw-4). He has stated that about a year or 1-1/2 ago at evening time, he and Mukhtar alias Chotu had gone to one Ibrahim to enquire about his health. They at late hours of the night, when were returning therefrom alongwith Rohinala, they saw appellant Riaz and his co- convict Muhammad Ahmad present near the land of Muhammad Hayat and Riaz was having hatchet with him and Muhammad Ahmad empty handed and they on seeing them immediately returned back and they then went to their village. On the following day, he came to know that the deceased has been murdered.
22. It may be mentioned here that he is sole witness of the prosecution on this aspect of it's case.
The other witness regarding this aspect namely Mukhtar alias Chotu has been given up by it.
23. So, I confine my discussion in respect of his testimony. He is the close relative of the deceased.
He has admitted that the deceased was his maternal nephew. It may be mentioned here that both the parties belong to one caste. To belong to same caste may be one thing and to be Someone's close relative and another. Anyhow, his such close relationship with the deceased is an admitted fact on the record.
24. It was an unseen occurrence or blind murder. It is matter of common experience that in such like cases usually the evidence of the type is created or fabricated to give support to prosecution's stand/version. Though, it may not necessarily be true in all cases but generally it is so. Hence, I proceed to analyze his evidence carefully keeping in view this phenomena.
25. As has been said earlier, that both the parties belong to one caste. They are Arain. Hence, one can very easily think that when both the parties belonged to one caste, then why the witness has deposed favorably to one and against the other. The answer to such question is available from the evidence on the record. He as said earlier is close relative of the deceased being his maternal uncle. He has no such relationship with the appellant's side. So, there was cause with him to be favourably inclined towards the deceased's side and inimically disposed towards the appellant. In this regard, it may also be mentioned that there had been found some enmity and hostility between the parties prior to the occurrence.
26. Muhammad Ismail (PW-6) has admitted in the cross-examination that Evacuee Trust's Land was in possession of one Bashir Ahmad son of Muhammad Shafi and the same was allotted to Rana Muhammad Qasim and it's possession was taken away from Bashir. He has also admitted it to be correct that Mst. Raashida, the wife of said Bashir Ahmad has got registered the case against him and his three sons in respect of that matter. He has also admitted it to be correct that the said land was thereafter taken by Khalid on lease, who is the cousin of the deceased. He has also admitted that the deceased was the son of his brother's daughter. It appears that there was some hostility between him and said Khalid in respect of that land. It was suggested to him that the deceased was helping Khalid in that matter. He though has denied the same but it appears that there was litigation between this witness and the said cousin of the appellant. So, it could be said that there existed background of bitterness between the two sides. He, therefore, could validly be said to be inimically disposed towards the appellant/accused. He, therefore, was an interested witness. His evidence, thus, required to be scrutinize with care and caution.
27. According to him, he has gone to enquire about the health of Ibrahim at evening time. It is a matter of common experience that a visitor of an ailing man sits not with him for such long time as he and his companion Mukhtar alias Chotu had statedly done and that too at night. According to him, they have remained with him till the midnight. This was an abnormal thing on their part. The same, therefore, is open to serious doubt as normally it happens not. He is maternal uncle of the deceased. He was also inimically disposed towards the appellant's side. It, thus reasonably appears that he has created the story of his having Waj Takkar the accused at late hours of the night. The same seems not above doubt. The same, thus, is not readily acceptable. I, therefore, find that the learned trial Court has not rightly accepted his testimony..
28. Amanat Ali (PW-5) has deposed about the alleged extra-judicial confession of Muhammad Ahmad. According to him, Tariq deceased was murdered and Muhammad Ahmad came to him after the same and told him that he had murdered him and requested him to produce him before the police and on the next day he did so.
29. It is important to note here that according to this witness Muhammad Ahmad has not mentioned the name of the appellant Riaz before him as his companion in that matter. He is also close relative of the deceasedc He has admitted that his sister is married to Muhammad Siddique, who is the son of Hashmat All and the deceased was the maternal grand-son of Hashmat Ali. So, it stands established on the record that he is nearer in relation to the deceased than the accused. He has also admitted that he neither is Lamburdar nor councilor of the village. He when was not an influential person, they why convict Muhammad Ahmad had gone to him to confess his guilt is not easily understandable. It was suggested to him that he is a police tout. Though, he has denied the same but had admitted that he off and on had been appearing before the police. This conduct of him suggests to some extent that he had connection with the police and the police might at his instance had helped the complainant party in creating evidence of the type.
30. Anyway, it when was a blind murder, the going of the said convict to him soon after the same is astonishing thing. The same, thus is not readily believable. His evidence, therefore, is not worthy of placing reliance safely. The learned trial Court, therefore, has erred in placing reliance upon his testimony. I, therefore, discard the same.
31. Muhammad, Ismail (PW-6) has furnished the evidence of extra-- judicial confession of the appellant Riaz and his co-convict Muhammad Ahmad. According to him, they both on 14.3.2001, had come to the Drawing Room of Bilal and confessed that they had committed the murder of the deceased and they asked them to get them pardon from the complainant party but Bilal refused to do so saying that they have committed the blunder.
32. He firstly is the close relative of the deceased. He has admitted that the deceased was the son of his niece. Secondly, he has admitted that he is neither Lamburdar nor councilor. Hence, why the appellant and his co-convict will confess their guilt before him is not understandable: His evidence, therefore, is not confidence inspiring.
33.Furthermore, it if at all for the sake of arguments may be believed that it was so, even then it was a joint extra judicial confession, which is inadmissible in evidence and so could not be given effect to. In this regard reference is made to the cases of Pahlwan etc. v. The State (PLJ 1971 Cr.C.
(Kar.) 503), Mamoon and 9 others v. The State (1971 P.Cr.L.J. 197 Lahore), The State v. Kamal Khan alias Maloo and another (1993 SCMR 1378).
34. Master Bilal Ahmad (PW-9) has also deposed that on 14.3.2001, between Maghrib and Eisha time, the appellant Riaz and Muhammad Anwar came to him and they stated before them that they had committed the murder of the deceased Muhammad Tariq and so committed a mistake and they may be forgiven. His testimony too discloses the joint extra-judicial confession of the appellant and his co-convict. The same, therefore, was inadmissible in evidence. It is, therefore, on that score alone is liable to be kept out of consideration.
35. Besides than this, he too is a close relative of the deceased. He has admitted that Muhammad Ismail, the maternal grand-father of the deceased is his Sala and Samdi. He in the cross- examination has also admitted that appellant Riaz is not his friend and he also did not maintain good relation with him. So, he was more nearer in relation to the complainant's side than the appellant/accused. So, his deposing favorably to the complainant's side is easily understandable.
Anyway, his evidence did not carry any legal weight being joint extra judicial confession of the accused. The same, therefore, is discarded. Even otherwise, such type of evidence has always been considered to be of weak type. In this regard reference is made to the case of Sarfraz Khan v. The State and 2 others (1996 SCMR 188).
36. Hence, the evidence of the above mentioned three prosecution witnesses on the point of alleged extra-judicial confession of the appellant and his co-convict was of no legal effect.
37. As regards the recovery of the crime weapon hatchet P-1 from the appellant, the same is also of no effect. Muhammad Siddique (PW-2) and Tariq Mehmood, S.I. (PW-17) have furnished the evidence regarding the same. They both but have not stated that it was blood stained. The report of Chemical Examiner EX PO though IS to the effect that the hatchet was stained with blood and the report EX PQ of the Serologist is to the effect that C it was human blood but surprisingly both these two recovery witnesses have not stated it to be so. Hence, the above mentioned reports of the Experts loose their value and credibility.
38. The witnesses before whom allegedly the recovery was effected, when have not stated that it was stained with blood, the reports of -the experts could not be attached much weight to. The recovery, thus was of no effect to the prosecution case and it could not be received as a piece of corroboration to the other evidence on the record against the appellant and his co-convict. The learned trial Court, therefore, has wrongly and on presumptive basis received the same as of corroborative value to the other evidence on the record. The same was liable to be kept out of consideration and could not be given effect to. The same, therefore, is discarded.
39. There when was no reliable evidence forth coming against the appellant or his co-convict, then the medical evidence could be of no effect. It simply has established that the death of the deceased had occurred due to the injuries caused to him. It did not go any further in establishing the guilt of the appellant or his co-convict.
40. As a result of the above discussion; I have found that the prosecution has failed to bring home the guilt to appellant Riaz and his co- convict Muhammad Ahmad beyond any shadow of reasonable doubt. Their conviction and sentence, therefore, is not liable to be sustained.
41. The appeal of appellant Riaz, Therefore, is accepted, the impugned judgment of his conviction and sentence set aside and he is G acquitted of the charge against him by giving him the benefit of doubt. He is in custody. He be released forthwith, if not required in any other case.
42. His co-convict, Muhammad Ahmad is absconding. He though has not brought any appeal against his conviction and sentence as said above but he is also entitled to the benefit of the factum of the prosecution's failure to bring home the guilt to him as well beyond any shadow of reasonable doubt. In this regards reference is made to the cases of Muhammad Aslam and 5 others u. The State (1972 SCMR 194), Muhabbat Ali and another v. The State (1985 SCMR 662) and Waqar Zahir v. The State (PLD 1991 Supreme Court 447). In the case of Muhammad Aslam and 5 others v. The State (1972 SCMR 194), the absconding appellant was acquitted due to such position.
Hence, his conviction and sentence too is set aside and he is acquitted of the charge against him giving him the benefit of doubt.