' MUHAMMAD FARRUKH MAHMUD, J.---Muhammad Ishtiaq alias Jat appellant, along with Aamir Javed, was sent up to face trial in case F.I.R. No,134 registered at Police Station, Sadar Toba Tek Singh on 26-5-1995 for offences under sections 302/392/451/412, P.P.C. Vide judgment, dated 24-3- 1997, the learned Sessions Judge, T.T. Singh, convicted and sentenced each of them as follows:--
(i) For offence under section 460, P.P.C. Each to undergo R.I. For ten years each plus fine of Rs,10,000 each, in default in payment whereof to further suffer S.I. For three years each;
(ii) For offence under section 302(b), P.P.C. Each to death plus payment of Rs,40,000 each as compensation to the legal heirs of the deceased; and
(iii) For offence under section 392, P.P.C. Each to undergo seven years' R.I. Each plus payment of fine of Rs,5000 each, in default in payment whereof to further suffer R.I. For two years each.
2. Muhammad Ishtiaq alias Jat appellant has challenged his convictions and sentences through the instant appeal. Murder Reference No,97 of 1997 seeking confirmation or otherwise of death sentence has also been placed before us. Both these matters are being decided through this consolidated judgment.
3. It may be mentioned here that Aamir Javed, co-convict of the appellant, had challenged his convictions and sentences through Criminal Appeal No,211 of 1997, which, as per office, has been disposed of. The case of the appellant could not be taken up at that time, as at the time of pronouncement of the judgment by the learned trial Court, he was on bail and escaped his arrest.
He surrendered, as per record, on 7-5-2002 and filed the instant appeal through Superintendent Jail in the year 2005, which was admitted to hearing after condonation of delay vide order, dated 26-1-2005.
4. Briefly, the facts of case per F.I.R. Exh. P.J. Lodged at the instance of Wali Muhammad, complainant/P.W.10, are that the brother Ali Muhammad, who was living in the same village, was sick. At about 9-00 p.m. On 25-5-1995, the complainant went to the house of Ali Muhammad to inquire about his health. Mst. Ramzan Bibi, the wife of Ali Muhammad, P.W.8, and Mst. Shamshad Bibi, daughter-in-law of Ali Muhammad, P.W.9, were also present in the house. Ali Muhammad was lying in the verandah. The complainant, Mst. Ramzan Bibi and Mst. Shamshad Bibi remained talking till late at night. The complainant also slept there. Electric bulb was on. At about 2-00 a.m. On 26-5- 1995, on hearing noise in the courtyard, the complainant and Mst. Ramzan Bibi got up and saw two persons having average height with thin bodies, one of whom was armed with a carbine and the other was empty handed. Mst. Ramzan Bibi inquired as to who were they, whereupon the empty handed accused caught hold of her and while pressing her throat threatened that in case she raised alarm, she would be killed. The other accused broke the bolt of the room where goods, were lying and went inside and after a short-while he came out of the room without stealing anything.
The empty handed accused removed the gold ear rings and Koka of Mst. Ramzan Bibi, valuing rupees four thousands. Ali Muhammad, who was suffering from dysentery, got up to answer the call of nature and went in the courtyard. The carbine holder accused inquired from him, as to where he was going. Ali Muhammad replied that he was going to ease himself. When Ali Muhammad reached near the Sheesham tree in the courtyard, the accused who was armed with a carbine, fired at Ali Muhammad, hitting him upon his thigh above the left knee, as a result of which he fell down. In the meanwhile Mst. Shamshad Bibi also got up. All the P.Ws raised alarm, whereupon both the accused ran away after scaling over the eastern wall of the house.
' The hue and cry attracted Tariq Mahmood, Abdul Ghafoor and Habib at the spot, who carried Ali Muhammad and laid him on the cot where he died after a few minutes. Both the accused could be identified. Due to non-availability of conveyance at night, the matter could not be reported to the police. After leaving-Haji Muhammad Yousuf and Tariq Mahmood with the dead body, the complainant along with Muhammad Sharif Lambardar went to the police station, and reported the matter on 26-5-1995 at 6-15 a.m.
5. After recording the statement of Wali Muhammad Exh.P.J., Muhammad Imtiaz Hussain Qureshi, S. -I. /P. W. 11, went to the place of occurrence, prepared injury statement Exh.P.A. And inquest report Exh.P.B. Of the deceased and sent the dead body for post-mortem examination. He inspected the spot, prepared site plan without scale Exh.P.N. Secured blood-stained earth from the place of occurrence through memo. Exh. P.K., Attested by Wali Muhammad complainant/P. W.10 and Muhammad Sharif Lambardar (not produced at the trial) and took into possession one empty vide memo. Exh.P.L., attested by the same P.Ws. He also took into possession lock and hook P-7 through memo. Exh.P.M. Attested the aforesaid P.Ws. After postmortem examination, he took into possession the last worn clothes of the deceased consisting of shirt P.1 and Chaddar P-2 through memo.
Exh.P.D. On 15-6-1995, the I.O. Recorded the statements of Muhammad Saleem/P.W.7 and Jan Muhammad. The appellant was arrested on the same day. On 19-6-1995, the appellant, while in custody, led to the recovery of Chhuri P-6 from underneath the bridge of Saim Nala, which was made into a sealed parcel and taken into possession vide memo. Exh.P.I., attested by Muhammad Saleem/P.W.7 and Jan Muhammad. Site-plan Exh. P.I./1 with respect to the place of recovery of P-6 was also prepared. After completion of investigation, the appellant was challaned to face the trial.
6. To substantiate its version at the trial, the prosecution examined eleven witnesses, Mst. Ramzan Bibi P.W.8, Mst. Shamshad Bibi, P.W.9 and Wali Muhammad P.W.10 furnished the ocular account.
Muhammad Saleem P.W.7 stated about he extra-judicial confession made by the appellant and also about the recovery of Chhuri effected at the instance of the appellant. Dr. Siraj-ud-Din Shad P.W.2 conducted post-mortem examination on the dead body of the deceased and found one fire- arm injury on the left thigh of the deceased and four incised wounds on the left thigh of the deceased. In the opinion of the doctor, cause of death was haemorrhage and shock due to Injury No,1, caused by fire-arm weapon which was sufficient to cause death in ordinary course of nature individually as well as collectively, while Injuries Nos.2 to 5 were caused by a sharp edged weapon.
The duration between the injuries and death was within one hour and between death and post- mortem examination was within eighteen hours. Muhammad Imtiaz Hussain S.-I./P.W.11 stated about the registration and investigation of the case. After tendering in evidence the reports of Chemical Examiner Exh.P.O., Serologist Exh.P.Q. And that the Forensic Science Laboratory Exh.P.R., the prosecution closed its case.
7. The appellant in his statement recorded under section 342, Cr.P.C. Denied the allegations of the prosecution and pleaded his innocence.
8. Learned counsel for the appellant has submitted that the appellant has been convicted on the basis of extra-judicial confession which is weak type of evidence; that P.W.7 Muhammad Saleem before whom the appellant allegedly confessed was real nephew of the deceased; that it was proven from the record that the appellant was in police custody on the date of confession in some other case. Reference has been made to Exh.D.C., D.C./1 and D.D., the orders passed by the Area Magistrate; that the medical evidence belies the ocular evidence; that the recoveries were effected from an open place; that no independent witness of recovery was produced during trial; and that the learned trial Court has convicted the appellant simply on presumptions. The learned counsel appearing on behalf of the State has argued that there is no enmity between the P.Ws and the accused, so as to involve him in a false case; that the F.I.R. Was recorded promptly; that the ocular account is supported by medical evidence, evidence of recoveries and the report of the Forensic Science Laboratory; that on the same day, after registration of the case, supplementary statements of the complainant and P.Ws. Were recorded, wherein it was stated that they could identify the accused; that the accused has committed heinous offence and no mitigating circumstances existed in his favour, so he has rightly been condemned to death.
9. We have heard the learned counsel for the parties and have also scanned the entire record.
10. The occurrence took place at 2-00 a.m. During night on 26-5-1995. According to the prosecution case, Wali Muhammad brother of the deceased, Mst. Ramzan Bibi wife of the deceased and Mst.
Shamshad Bibi daughter-in-law of the deeased had seen the occurrence. Wali Muhammad, who resided separately per chance, went to the house of the deceased on the fateful night at 9-00 p.m.
And then slept there. The presence of Mst. Ramzan Bibi and Mst. Shamshad Bibi, P.Ws.8 and '9, who are inmates of the house, cannot be denied but the sole question involved in this case is, whether the culprits were identified by P.Ws.8 and 9 and P.W.10, if it is presumed that he was also present at the scene of occurrence. The most important document on that regard is F.I.R. Exh. P.J., which was registered at the police station at 6-15 a.m. On 26-5-1995. The complainant had explained the delay by stating that he could not report the matter immediately to the police due to lack of transport. In other words, the matter was not reported to the police in a hurry and the complainant had ample time to consult with the other P.Ws. The names of the culprits were not mentioned in the F.I.R. According to F.I.R., the complainant as well as other P.Ws. Saw two accused, who were of average height and lean in physique standing in the compound of the house and one of the accused was holding a carbine. No particular mark of identification was mentioned. The description given in the F.I.R. Would fit to thousands of citizens. The I.O. Knowing fully well that the identification was not possible and would be cumbersome came out with an easy method of recording of supplementary statement of complainant, wherein it was stated that the accused who had partly muffled their faces were identified by the complainant as well as by Mst. Ramzan Bibi and Mst. Shamshad Bibi. According to the supplementary statement, the complainant had almost identified the culprits but did not name them in the F.I.R. Out of abundant caution. However, according to supplementary statement, after returning from the police station, the complainant consulted Mst. Ramzan Bibi and Mst. Shamshad Bibi, who confirmed the suspicion of the complainant. As already noted above, the F.I.R. Was lodged after a considerable delay and the complainant spent enough time with the remaining P.Ws. And it cannot be said that during that period, the P.Ws. Did not consult with each other. The F.I.R. Is a document which is signed/thumb marked by the informant, while the supplementary statement is recorded under section 161, Cr.P.C.
And it cannot be equated with the F.I.R. In most of the cases, the supplementary statement is recorded only to fill in the lacunas of the prosecution case or to add the number of the accused. In the instant case, it is not the only factor that names of the accused were not mentioned in the F.I.R.
There is another factor as well, which is also of equal importance. According to F.I.R. One of the accused, who was holding a carbine, fired once at Ali Muhammad deceased, which hit on his left leg above the knee, while according to medical evidence furnished by P.W.2 Dr. Siraj-ud-Din, the deceased had received one fire-arm injury on the back of left thigh and four other injuries (Injuries Nos. 2 to 5) which were caused by a sharp edged weapon. Incidently, all the injuries caused by sharp-edged weapon were on the left thigh. Perusal of the injuries further reveals that those were caused by a very large blade. The injuries caused by the sharp edged weapon were never mentioned in the F.I.R. Both these factors lead us to conclude that the eye-witnesses were not present when Ali Muhammad was attacked and even if they were present, they could not identify the culprits. We are further strengthened in our opinion by perusing the inquest report Exh.P.B.
Which was prepared at the spot after the registration of case. The names of the culprits were not mentioned in the inquest report, where brief facts of the case were given.
12 (sic). In the presence of eye-witnesses, the prosecution thought it fit to come out with a story of extra-judicial confession. Muhammad Saleem, real nephew of the deceased, appeared as P.W.7 and stated that on 15-6-1995, the appellant along with his co-accused went to his house in the presence of Jan Muhammad (who was not produced during trial). Both the accused confessed their guilt. Extra-judicial confession is a very weak type of evidence and is mostly carved out in cases of unwitnessed occurrence. No plausible reason is available on the record as to why the accused went to the house of Muhammad Saleem and confessed their guilt before him and one Jan Muhammad who was also related to the deceased. The said Jan Muhammad was not produced before the learned trial Court. It was observed by the apex Court in the case of Sajid Mumtaz and others v. Basharat and others 2006 SCM R 231 that the Court must keep in view the status of the person before whom the extrajudicial confession was made and that it was always a weak type of evidence which could easily be procured whenever direct evidence was not available.
It was further observed that exercise of utmost care and caution had always been the rule prescribed by the apex Court while dealing with the extra-judicial confession. In the instant case, Exh.D.C./1, which is certified copy of interim order, dated 7-6-1995 passed by the Judicial Magistrate in some other case coupled with Exh.D.D. Reveal that the accused were in police custody much earlier before 15-6-1995 when they allegedly made confession before P.W.7. In the above noted circumstances, no reliance can be placed upon the extra-judicial confession. As far as recoveries are concerned, the prosecution failed to prove the same to judicial satisfaction, as no independent person from the locality was produced and instead P.W.7, who is nephew of the deceased, and was also witness of extrajudicial confession was produced. Further more, the recovery is only confirmatory evidence would be of no consequence when the direct evidence has not been believed. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence.
13. As far as medical evidence is concerned, it rather belies the prosecution case, -as instead of one, the deceased received five injuries and four of them were caused by a sharp edged weapon, which were not mentioned in the F.I.R.
14. The upshot of the whole discussion is that, in our view, the prosecution case is not free from doubt. Thus, while extending the benefit of doubt to the appellant Muhammad Ishtiaq alias Jat son of Muhammad Munshi, we allow this appeal and set aside the judgment dated 23-4-1997 passed by the learned trial Court to the extent of the appellant. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case. The death sentence is not confirmed. The Murder Reference is answered in the negative.