' MUHAMMAD JEHANGIR ARSHAD, J.-- Through this criminal appeal the convict/appellant Rehmat Ullah has challenged the judgment dated 11-11-2000 passed by learned Additional Sessions Judge, Haroonabad whereby in case F.I.R. No,180, dated 15-8-1999 under sections 302/452/109, P.P.C. Police Station Saddar Haroonabad, the appellant was convicted and sentenced as under:-- ' Under section 302(b), P.P.C. Sentenced to imprisonment for life as Tazir. Further ordered to pay Rs,30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo R.I. For six months.
' Under section 452, P.P.C. Sentenced to five years' R.I. And to pay a fine of Rs,5,000, in default whereof to further undergo R.I. For six months.
' Both the sentences were ordered to run concurrently and benefit under section 382-B, Cr.P.C. Was extended.
2. Briefly the facts of the case as emanate from F.I.R. (Exh.P.A.) got lodged by Hafiz Muhammad Shabir (complainant/P.W.1) on 15-8-2000 at 9-00 a.m. Are that his father Rana Muhammad Hussain had been deprived of his inherited property by his uncles but on their death his cousin Ghulam Rasool had asked his father to settle with them in Sindh, as such his father Rana Muhammad Hussain, brother Muhammad Saleem and sisters namely Kausar Bibi and Zakiya Bibi had settled there. On 14-8-1999 they all had come to his house from Sindh and after taking evening meal they all went asleep in the courtyard. At about mid night on the hue and cry of his father, the complainant and his wife Mst. Shahadat Bibi woke up and saw that his father Rana Muhammad Hussain had been severely injured and was clamouring who later on died due to those injuries.
According to the F.I.R. Rana Muhammad Hussain was murdered due to some animosity.
3. Bashir Ahmad, S.-I. While appearing in the witness-box as P.W.7 deposed about registration of F.I.R.; his visiting the place of occurrence for inspection of the dead body; preparation of injury statement Exh.P.B./2; inquest report Exh.P.B./3 and further preparation of necessary police papers.
He also sent the dead body for post-mortem, collected blood-stained earth Exh.P.D. From the place of occurrence; blood-stained cot, blood-stained Gaddi, blood-stained pillow and one blood- stained Chaddar vide different memos. After post-mortem examination, last-worn clothes of the deceased were produced before him and he prepared the memos signed by Noor Muhammad P.W.5 and Muhammad Amin P.W.6. According to the Investigating officer, Rehmatullah accused/appellant was arrested by the S.H.O. On 7-9-1999 who led to the recovery of hatchet P.7 which was secured in possession vide recovery memo. Exh.P,F. Attested by Muhammad Amin P.W.6 and one Muhammad Ashraf (not produced). Rana Muhammad Aslam, Inspector /S.H.O. P.W.2 deposed about arrest of accused Rehmat Ullah and submission of challan in Court after completion of formal investigation.
4. On submission of the report under section 173, Cr.P.C. Charge was framed against the accused/appellant, to which he pleaded not guilty and claimed to be tried. During trial the prosecution produced as many as nine witnesses. The statements of two Investigating Officers have already narrated above.
5. P.W.1 (reappeared as P.W.4) Hafiz Muhammad Shabir complainant while deposing in Court apart from the repeating the narration of the F.LR. Further stated that Rehmat Ullah accused had made confession before him and other P.Ws. Muhammad Amin and Noor Muhammad to the effect that he (Rehmat Ullah) had committed the murder of Rana Muhammad Hussain, as one Muazim Ali son of Muhammad Sarwar had given him Rs,5,000 for commission of said murder. The reason for that murder was explained to be that Muazim Ali wanted to marry complainant's sister Mst. Kausar Bibi which marriage was refused by Rana Muhammad Hussain complainant's father, which nourished grudge in the mind of Muazim Ali who got his father murdered.
6. In view of the above statement of the complainant, Muazim Ali co-accused was also summoned by the learned trial Court to face trial. P.W.2 is Dr. Muhammad Aslam Tahir who conducted the post-mortem of the deceased and noted seven injuries on his dead body. According to his opinion, the death was result of haemorrhage and shock resulting from injuries on vital organs. All the injuries were ante-mortem. Injuries Nos.1, 2 and 4 to 7 were caused with sharp-edged weapon whereas injury No,3 was inflicted with blunt weapon. The time between injuries and death within two hours and death to post-mortem was within 24 hours. P.W.5 Noor Muhammad and P.W.6 Muhammad Amin deposed about alleged extra-judicial confession and attestation of certain recoveries in their presence. The remaining witnesses are formal in nature wha performed various functions towards completion of the investigation. The learned D.D.A. By tendering in evidence the report of Chemical Examiner Exh.P.J., Exh.P.K. And reports of Serologist and Exh.P.L. And Exh.P.M.
Closed the prosecution case. The accused when put the prosecution case under section 342, Cr.P.C. Refuted the prosecution evidence, and attributed their false involvement because of suspicion. However, neither of them opted to appear as their own witnesses under section 340(2), Cr.P.C.
7. On conclusion of the trial, the learned Additional Sessions Judge while holding that prosecution had failed to prove its case against Muazim Ali, acquitted him of the charge. However, convicted and sentenced Rehmat Ullah as detailed in the opening paragraph of this judgment. Through the instant appeal, said Rehmat Ullah has assailed his above conviction and sentence.
8. Malik Sadiq Mehmood Khurram, Advocate appearing on behalf of the appellant, has initiated his arguments by contending that the learned trial Court acquitted co-accused Muazim on the ground that prosecution has not successfully proved the motive against him, whereas appellant has been convicted on the ground that he acted in'furtherance of motive attributed to Muazim (as he had allegedly been refused the hand of Mst. Kausar daughter of the deceased by Rana Muhammad Hussain) and thus committed murder of Rana Muhammad Hussain on the abetment of Muazim who had promised not only to give him Rs,5,000 but also to take him to Saudi Arabia free of cost; that the prosecution has not been able to connect the appellant with said Muazim nor any independent and confidence inspiring evidence had been produced to prove such motive except the statement of Hafiz Shabir complainant who had not disclosed the alleged motive in the FIR.
Wherein it was stated that his father had been murdered by some unknown persons due to unknown enmity; that according to the contents of the F.LR. Rana Muhammad Hussain deceased succumbed to the injuries one hour after the occurrence but neither the deceased disclosed the names of assailants nor conveyed any motive to the complainant; that although statement of Mst.
Shahadat Bibi wife of the deceased and mother of the complainant who was sleeping in the company of deceased and others, was recorded under section 161, Cr.P.C. But she was not produced in Court which leads to a strong adverse presumption against the prosecution and that admittedly it was a blind ,murder and only evidence produced by the prosecution for sustaining conviction is extra-judicial confession allegedly made by the appellant before the complainant Noor Muhammad P.W.5 and Muhammad Amin P.W.6 which evidence according to the learned counsel is not only inconsistent but also does not stand the test of cross-examination. Learned counsel while referring to certain parts of statements of P.W.5 and P.W.6 contends that they have tried to dishonestly advance the proseqution case and were duly confronted with their earlier statements recorded under section 161, Cr.P.C. It is next argued that on the point of alleged extra judicial confession the complainant had taken two different stand's, firstly on 3-8-2000 while appearing as P. W.1 in his examination-in-chief he deposed that Rehmat Ullah made confession after some days of the occurrence during investigation in his presence when Muhammad Amin and Noor Muhammad were also there but subsequently he changed his version during the course of cross-examination and stated before the Court that appellant had allegedly made confession near his (accused) house on the outer side of complainant's house where Muhammad Amin called him. Learned counsel submits that according to Muhammad Aslam, Inspector who had partly conducted the investigation, accused was arrested on 7-9-1999 whereas according to Bashir Ahmad, S.-I. P.W.7 he obtained physical remand of the accused on 14-9-1999 whereafter the aecused got recovered the weapon of offence. Similarly, it is argued that Bashir Ahmad, S.-I. P.W.7 admitted in cross-examination that investigation had been taken back from him on 20-8-1999. It is, therefore, argued that recovery allegedly effected on the pointation of accused/appellant cannot be believed. Learned counsel has seriously challenged the alleged extra-judicial confession by placing reliance on the case Ishaq v. The Crown PLD 1954 FC 335 and Abdul Rehman and another v.
The State 2001 YLR 749:D.B. Lahore. Learned counsel has further argued that not only the complainant but also both the P.Ws. Have made dishonest improvements in, theif statements viz. Extra-judicial confession. It is concluded that in view of the contradictions, improvements and discrepancies it is highly unsafe to sustain conviction, hence the impugned judgment is liable to be set aside.
9. Conversely, Mr. M.A. Farazi, Advocate for the State has vehemently opposed the appeal and supported the impugned judgment and conviction as recorded by the learned trial Court.
10. I have considered the arguments of learned counsel and have also perused the relevant record/evidence.
11. Admittedly, the learned trial Court has acquitted Muazim co-accused of the appellant on the ground that prosecution had not been able to prove motive against him but the appellant has been convicted by relying the motive allegedly attributed to Muazim. It is also admitted fact that it was a blind murder having been committed in the dark hours of A the night and F.I.R. Was got lodged by the complainant without naming any person as accused.
12. The statements of two Investigating Officers materially contradict each other on the point of alleged recovery at the pointation of the accused/appellant because according to Muhammad Aslam, Inspector/S.H.O. He arrested the accused on 7-9-1999 and Bashir Ahmad despite admission that investigation had been taken over from him on 20-8-1999, submits that he obtained physical remand and allegedly got recovered the weapon of offence on the pointation of accused on 14-9- 1999.
13. While appearing as P. W.1 in his examination-in-chief the complainant stated that confession was made by the accused before the police and it is by now settled that no such confession can either be relied upon nor considered being inadmissible under Article 39 of the Qanun-e-Shahadat Order. The statement of the complainant is also full of discrepancies, dishonest improvements and lacks corroboration from any B independent source. Further the P.Ws are materially contradicting each other and are at variance with regard to the time and place of alleged confession, which even otherwise lacks necessary particulars as required by law. In the above cited Ishaq's case PLD 1954 FC 335 the Honourable Federal Court at page 363 while discussing the importance of extra- judicial confession held in unequivocal terms that the persons before whom such a confession is made must reproduce the exact words in which the alleged confession was made, as clearly as possible. Further in the case of Abdul Rehman and others v. The State 2001 YLR 749 this Court had held that in the absence of date, time, place, motive and details of the incident alleged extra- judicial confession has no credence. Whereas, in the instant case apart from other contradictions in the statement of the witnesses, admittedly the complainant did not disclose the date, time, place and other details of the occurrence, which make the prosecution case extremely doubtful.
14. As regards the medical evidence, the same does not support the prosecution in any manner because in the facts and circumstances of the present case, the statement of the doctor only indicates the time, nature and seat of the injuries or at the most it may suggest the weapon used during the occurrence but in no way can point out the real culprit, as admittedly it was a dark night occurrence which also went unwitnessed.
15. In view of above contradictions in the statements of the P.Ws. Inadmissibility of alleged extra- judicial confession and lack of independent and impartial evidence, it is highly unsafe to base conviction of the accused on murder charge, especially when the prosecution has failed to prove its case against him beyond any shadow of doubt. Therefore, this appeal is allowed, the impugned judgment of conviction and sentence dated 11-11-2000 passed by learned Additional Sessions Judge, Haroonabad is set aside, appellant is acquitted of the charge against him and is ordered to be released forthwith, if not required in any other case. These are the reasons for short order of even date recorded separately. Acquittal ordered.