' IJAZ AHMAD CHAUDHRY, J.--- Mst. Irshad Bibi wife of Sultan Ahmad and Imran Khan son of Sultan Ahmad, appellants have preferred this criminal appeal against their conviction and sentence who, along with Umar Hayat, Muhammad Fayyaz and Muhammad Ijaz were tried in case F.I.R. No,232, dated 31-10-2002, registered under sections 302/148/149/114, P.P.C. At Police Station Bhera District Sargodha and on conclusion of the trial, vide judgment, dated 16-6-2004 passed by Mr. Arshad Javed Mir, the learned Additional Sessions Judge, Bhalwal, District Sargodha, Mst. Irshad Bibi appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life for committing the murder of Sultan Ahmad her husband with direction to pay an amount of Rs,1,00,000 as compensation to the legal heirs of the deceased or in default of payment thereof to further undergo R.I. For six months. Both Mst. Irshad Bibi and Imran Khan, appellants were convicted under sections 201/34, P.P.C. And sentenced to undergo R.I. For seven years each along with fine of Rs,10,000 each or in default of payment of fine to further undergo R.I. For six months each. Benefit of section 382-B, Cr.P.C. Was also extended to them. However, through the same judgment, Umar Hayat, Muhammad Fayyaz and Muhammad Ijaz co-accused of the appellants were acquitted of the charge by extending them the benefit of doubt.
2. The occurrence in the present case was alleged to have taken place on 31-10-2002 near about 1- 00 a.m. (night), at the Dera of Sultan Ahmad deceased, situated in Ilathi Wind which is 11 Kms.
Towards South/West from the police station and the matter was initially reported by Imran Khan appellant while getting registered F.I.R. (Exh.P.G.) at Police Station Bhera at 3-00 a.m. (night) on 31- 10-2002, which was drafted by Ameer Abbas Khemta, S.-I. (P.W.9) to the effect that Imran Khan, appellant No,2 was a student of 9th class in Government High School Khan Muhammad Wala. On the fateful night he as well his sister/brothers, mother Mst. Irshad Bibi, appellant No,1, father Sultan Ahmad deceased and real maternal-uncle Khizar Hayat, were sleeping in their house when at about 11-00 p.m. Three unknown persons armed with fire-arms came there, who got awakened Sultan Ahmad and Khizar Hayat and tied their hands on their back. They took them to a room where accused persons demanded key of iron box to which Sultan Ahmad replied that the key of iron box was with his wife Mst. Irshad Bibi. One of the accused person got awakened Mst. Irshad Bibi and in the meanwhile, he (Imran Khan) also got up. The accused took them to the room where Sultan Ahmad and Khizar Hayat were already present and their hands were tied. The accused persons took out Rs,4,000 from the iron box. Sultan Ahmad (deceased) said that he had identified the accused persons upon which one of the accused person fired hitting on the chest of Sultan Ahmad, who fell down and then the other accused persons made fires which hit on the right and left hands of Sultan Ahmad. The accused persons then fled away. Sultan Ahmad succumbed to the injuries at the spot.
3. (sic) After registration of the case the investigation was carried out by Ameer Abbas Khemta, S.-I.
(P.W.9) who visited the place where the dead body of Sultan Ahmad (deceased) was lying; prepared the injury statement (Exh.P.H.), and inquest report (Exh.P.J.) of the dead body of Sultan Ahmad deceased. Thereafter he sent the dead body of Sultan Ahmad deceased to mortuary through Zafar Abbas, F.C. (P.W.3) for autopsy. He took into possession the blood-stained earth from the place of occurrence vide recovery memo. (Exh.P.C.). He also got drafted scaled site plan (Exh.P.B. And Exh.P.B./1) from Muhammad Hafeez , Draftsman (P.W.4) and recorded the statements of the P.Ws. Under section 161, Cr.P.C. During the investigation on 6-11-2002, Muhammad Aslam (P.W.6) submitted application (Exh.P.D.) while narrating another version of the occurrence to the effect that Mst. Irshad Bibi appellant had made disclosure that she had developed illicit relations with Umer Hayat (acquitted accused) and with his connivance she made plan to remove her deceased husband from her way. In this respect she also associated her son Imran Khan (appellant). On the fateful night, Umer Hayat, Muhammad Fayaz and Muhammad Ijaz (acquitted accused) being armed with fire-arms arrived there and committed murder of Sultan Ahmad deceased. On 10-12-2002, Umar Hayat, Muhammad Fayyaz and Muhammad Ijaz were arrested by P.W.9 and on 15-12-2002, Umar Hayat acquitted accused while in police custody led to the recovery of rifle .7 mm (P.4) along with four live bullets (P.5/1-4) from the cattle shed of his house which were taken into possession by the Investigating Officer, vide recovery memo. (Exh.P.E.). On 17-12-2002, Ijaz acquitted accused while in police custody led to the recovery of gun (P.6) from his Baithak in village Khan Muhammad Wala which was also taken into possession by the Investigating Officer vide recovery memo. (Exh.P.F.) On 23-12-2002, Imran Khan and Mst. Irshad Bibi appellants were arrested by him. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court.
5. After receipt of report under section 173, Cr.P.C. The learned trial Court supplied the copies of the documents to the appellants along with the co-accused required under section 265-C, Cr.P.C. And thereafter framed the charge against the appellants and their co-accused on 18-10-2003, which was denied by them and they claimed to be tried.
6. The prosecution in order to prove the guilt of the appellants and their co-accused produced as many as 10 witnesses. P.W.6 Muhammad Aslam is a witness of alleged extra-judicial confession made by Mst. Irshad Bibi appellant, P.W.7 Khizar Hayat is the alleged eye-witness and P.W.8 Nazir Ahmad is the witness of Vajtakkar, who had seen Umer Hayat, Muhammad Fayyaz and Ijaz (acquitted accused) coming out of house of the deceased just after the occurrence. Ameer Abbas Khemta, S.-I. (P.W.9) had conducted the investigation while the medical evidence was adduced by Dr. Qalb-e-Hussain Sherazi, S.M.O. T.H.Q. Hospital, Sahiwal who on 31-10-2002 at 10-00 a.m. Had conducted the postmortem examination on the dead body of Sultan Ahmad deceased. The other witnesses are less or more of formal nature and need not to discuss here.
7. After recording of the statements of the P.Ws. The appellants along with the acquitted accused were examined under section 342, Cr.P.C. Both the appellants shad admitted the allegation levelled by the, prosecution against them. However, they did not opt to make statements on oath under section 340(2), Cr.P.C. Or produce any defence evidence.
8. After hearing the learned counsel for the parties, the learned trial Court passed the impugned judgment of conviction and sentence against the appellants as detailed in para. No,1 ante which is being assailed through this appeal.
9. None has turned up on behalf of the appellants to prosecute this appeal. However, while considering that both the appellants are widow and real son of Sultan Ahmad deceased, who during the investigation were converted to accused from the status of P.Ws. On the allegation that on their facilitation co-accused Umer Hayat, Fayaz and Ijaz had murdered Sultan Ahmad while making firing on him, but the said co-accused were acquitted while disbelieving the prosecution version by the learned trial Court and the appellants have been convicted and 'sentenced on account of alleged admission made during their examination under section 342, Cr.P.C. I have proceeded to appoint Mian Abdul Qayyum Anjum, Advocate for the appellants at State expenses.
He has contended that the learned trial Court has erred in law while convicting the appellants only on the ground that the allegations levelled by the prosecution were admitted by them during their examination under section 342, Cr.P.C. As the prosecution evidence was disbelieved to the extent of the main accused and the appellants were only alleged to have facilitated them.
10. The learned counsel appearing on behalf of the State opposes this appeal, who .Contends that the allegations levelled against the appellants in the prosecution evidence were admitted by the appellants in their statements recorded under section 342, Cr.P.C. Whose involvement in the occurrence stood established beyond any shadow of doubt and their conviction and sentence recorded by the learned trial Court is sustainable.
11. I have heard the learned counsel for the parties and also perused the whole record with due care and caution.
12. The case was registered at the instance of Imran Khan appellant at the police station, vide F.I.R.
(Exh.P.G.) which was recorded by Ameer Abbas Khemta, S.-I. (P.W.9) on 31-10-2002 at 3-00 a.m.
(night) while the occurrence had taken place on the night between 30/31st October, 2002 at 11-00 p.m. According to the version of appellant Imran Khan given in the F.I.R. (Exh.P.G.) three unknown persons while armed with fire-arms had entered in the house of the complainant/ appellant and murdered his father through firing after committing theft. On the next day i,e, 1-11-2002, Muhammad Ali Khan, A.S.P./S.D.P.O. Bhalwal also visited the spot and some statements were got recorded by the prosecution witnesses including Khizar Hayat (P.W.7) who is brother of Mst. Irshad Bibi appellant and maternal-uncle of Imran Khan. His statement (Exh.D.C.) was duly incorporated in the daily diary. The site plan (Exh.P.B. And Exh.P.B./1) was also got prepared on the pointation of the witnesses namely Mst. Irshad Bibi and Khizar Hayat on 3-11-2002. D.P.O. Had also directed to trace the real culprits and to complete the investigation to the S.H.O. (P.W.9) on 6-11-2002. Muhammad Aslam who is first cousin of Sultan Ahmad deceased had moved the application (Exh.P.D.) against Mst. Irshad Bibi mother of Imran Khan complainant of the present case that they had facilitated Umer Hayat, Muhammad Fayyaz and Muhammad Ijaz for committing the murder of Sultan Ahmad deceased through firing as Mst. Irshad Bibi had developed illicit liaison with Umar Hayat acquitted accused. Umar Hayat, Muhammad Fayyaz and Muhammad Ijaz were arrested on 10-12-2002 and recoveries were also affected from them during the investigation. On 23-12-2002, Imran Khan and Mst. Irshad Bibi appellants were arrested by Ameer Abbas Khemta, S.-I. (P.W.9).
13. Except the statements of Muhammad Aslam (P.W.6) and Khizar Hayat (P.W.7), there is nothing on the record to connect them with the commission of the crime, but the said statements have already been disbelieved by the learned trial Court to the extent of involvement of Umar Hayat, Muhammad Fayyaz and Muhammad Ijaz acquitted accused who had actually committed murder of Sultan Ahmad through firing according to the version of these two witnesses. Learned counsel for Mst. Irshad Bibi though had cross-examined P.W.4 to P.W.6, yet he had not cross-examined P.W.7 and other P.Ws. However, it does not amount to an admission on the part of the accused as the burden of proof is on the prosecution which has to stand on its own legs and any lapse on the part of the accused in adducing their defence is not sufficient to hold them guilty.
13-A. It is noticed that Muhammad Aslam (P.W.6) is first cousin of Sultan Ahmad deceased. During the cross-examination he admitted that the deceased had two brothers and sister and he was also owner of land measuring 16/17 acres in the same village. The other children of the deceased were minor. It was conceded by him that after arrest of both the appellants the said land had been under his cultivation and the children were also living with him. Muhammad Aslam during the cross-examination stated that he had submitted statement (Exh.P.D.) to the Investigating Officer on the next day i,e, 1-11-2002 and he also signed the same but the Investigating Officer, Ameer Abbas Khemta, S.-I. (P.W.9) denied and stated that the said application (Exh.P.D.) was produced by Muhammad Aslam (P.W.6) before him on 6-11-2002. There is contradiction in the statements of the complainant and the Investigating Officer regarding the time and date when the application was presented for involving the appellants in the present case. Muhammad Aslam (P.W.6) and Khizar Hayat (P.W.7) were present at the time when the S.H.O./Investigating Officer visited the spot and Khizar Hayat claimed, that he had told the whole story being an eye-witness. Muhammad Aslam (P.W.6) was aware of the fact before presentation of application (Exh.P.D.) before him but this fact had not been mentioned in his statement (Exh.P.D.) before the police.
14. No doubt, P.W.7 Khizar Hayat is real brother of Mst. Irshad Bibi, but at the same time it cannot be ignored that he is son-in-law of P.W.6. He claimed that his statement as an eye-witness was recorded on 1-11-2002 but Exh.D.A. Shows that it was recorded on 6-11-2002. The Investigating Officer (P.W.9) also stated that till 6-11-2002 the names of the accused who allegedly had participated in the occurrence were not brought on the record and `Khurris' were also summoned to trace out the real culprits. Khizar Hayat also supported through his statement (Exh.P.D.) before the police that statement got recorded by the complainant was against the unknown culprits. If Khizar Hayat had witnessed the occurrence then why he had kept silent till 6-11-2002 and had not made such statement before the police about the commission of the offence by Umar Hayat, Muhammad Ijaz and Muhammad Fayyaz acquitted accused with the active connivance of the present appellants. Even making of said statement on 6-11-2002 is found to be doubtful as both the appellants were arrested on 23-1-2002.
15. After perusal of the impugned judgment it is found that their statements have already been disbelieved by the learned trial Court while A acquitting Umar Hayat, Muhammad Fayyaz and Muhammad Ijaz, co-accused, who allegedly had committed this occurrence. On the other hand, both the appellants Imran Khan and Mst. Irshad Bibi have been convicted only on the ground that they had admitted the allegations levelled by the prosecution in their statements recorded under section 342, Cr.P.C. It is very interesting to be noted that both the appellants were only alleged to have facilitated the co-accused in the commission of the crime and when the prosecution evidence has been disbelieved regarding commission of the occurrence by the said co-accused, how the same could be believed against the present appellants. It is settled principle of law that the prosecution has to stand on its own legs and prove the case against the accused beyond any shadow-of doubt. The purpose of examination of the accused under section 342, Cr.P.C. Is to afford opportunity to explain about circumstances appearing in the evidence led by the prosecution, if the same are to be used against the accused. The evidence of P.W.7, who claimed to be alleged eye-witness and P.W.8 a witness of Vajtakkar regarding involvement of the co-accused for the commission of the crime with the connivance of the appellant and inculpatory part of the statements of the appellants, under section 342, Cr.P.C. Has been disbelieved by the learned trial Court, I am of the considered opinion that the appellants could not be held guilty, who were only facilitator and not the actual killer, on the basis of their admission to the questions put in their statements under section 342, B Cr.P.C. When the prosecution evidence was disbelieved by the learned trial Court, any admission made thereto by the appellants was irrelevant and could not be used as an incriminating piece of evidence against them. It is also noted that the appellants had denied the charge-sheet and also cross-examined P.W.6 to shake his veracity. In Shamoon alias Shamma v. The State 1995 SCM R 1377, it has been held that burden of proof is on the prosecution beyond reasonable doubt irrespective of any plea raised by the accused in his defence. The relevant portion is reproduced as under:-- "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Where the prosecution succeeds in establishing its case against the accused beyond reasonable doubts, then the stage arrives for consideration of the plea of accused in defence and the question of burden of proof becomes relevant. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise. However, if the Court decides to convict the accused on the basis of his confessional statement or his plea under section 342, Cr.P.C. Then it is not open to the Court to accept a part of the statement of the accused and reject another part for the purpose of convicting him for the offence."
17. (sic) Similarly, it has been held in Rahim Bakhsh v. Crown PLD 1952 FC 1 that "it would be most unfair to the accused, and it would amount to a violation of a fundamental principle of natural justice if he is D convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court".
18. Moreover, the learned counsel for the present appellants had only cross-examined P.W.4 and P.W.6 but his defence counsel had not cross-examined P.W.7 and other P.Ws. It does not amount to an admission on the part of the accused as the learned trial Court was obliged to look into the details of the prosecution evidence produced by it to connect them with the commission of the crime. The Courts cannot be influenced in arriving at their conclusions that the accused did not direct any cross-examination to challenge the testimony of the witnesses. Reliance is placed on S. Mahmood Alam Shah v. The State PLD 1987 SC 250 and the relevant portion is reproduced as under:- ' "The Courts below seem to have been generally influenced in arriving at their conclusions that the accused did not direct any cross-examination to challenge the testimony of the witnesses---In criminal cases such an approach---In appreciation of evidence not approved as proof of a fact depends not upon the accuracy of the statement but upon the probability of its having existed."
19. For the foregoing reasons, I have no hesitation in holding that prosecution/complainant has miserably failed to bring home guilt to the appellants through any cogent piece of evidence.
Resultantly, this appeal is accepted, the impugned judgment of conviction and sentence is set aside and all the appellants are acquitted. They shall be released from jail forthwith, if are not required in any other criminal case.