' HASNAT AHMAD KHAN, J.---Abdul Latif appellant was convicted by the learned Sessions Judge Sahiwal for an offence under section 302(b), P.P.C. In case F.I.R. No, 141, dated 23-7-2001 registered at Police Station Shah Kot Distt. Sahiwal and vide judgment, dated 15-1-2005 the said learned trial Court sentenced him to suffer imprisonment for life (S.-I.). Benefit of the provisions of section 382-B, Cr.P.C. Was also granted to him.
2. The appellant has challenged his conviction and sentence beforethis Court through Criminal Appeal No, 33 of 2005 whereas Altaf Hussain complainant has approached this Court with Criminal Revision No, 45 of 2005 for enhancement of the sentence awarded to the appellant. Both these matters are being disposed of together through this single judgment.
3. Compendiously the prosecution story as narrated in the F.I.R: (Exh.P.A./1) lodged at the instance of Altaf Hussain (P.W.7) is that on 23-7-2001 at 10-00 p.m. The complainant, his brother Muhammad Sher and Zafar Iqbal P.W. Were returning to their home situated in. Chak No, 99/L, on two separate motorcycles whereas ahead of them was their other brother Ahmad Sher who too was returning home on a motorcycle after dropping one Muhammad Riaz at Chak No, 101/12-L. It was alleged that when they reached near Killa No,3 Square No,26 owned by one Anwar ul Haq, all of a sudden three unknown persons armed with rifles came in front of motorcycle of Ahmad Sher. Two of them allegedly signaled him to stop but he did not oblige them whereupon the third one fired with his rifle hitting Ahmad Sher on backside of his left shoulder.. Ahmad Sher (deceased) fell down in an injured condition whereupon all the three attackers who had been seen by the P.Ws. In the head- lights of their motorcycles, vanished into the cotton crop. The complainant and the P.Ws. Statedly attended the said Ahmad Sher but he had succumbed to his injuries at the spot. The complainant suspected that murder of his brother was result of some 'political rivalry of Ahmad Sher deceased who used to actively participated in the local politics.
4. Dr. Syed Zameer ul Hassan Shah (P.W.11) was posted as. Medical Officer at R.H.C. Chak No,96/12-L where he conducted postmortem examination on the dead-body of Ahmad Sher deceased on 24- 7-2001 and found the following injuries:-
(1) A fire-arm punctured wound 1/2 c.m. x 1/2 c.m. x deep going on the back left side of chest, 19 c.m.
From the left shoulder and 15 cm from the midline. The edges were inverted and it was wound of entry. Corresponding laceration was present on the Qameez.
(2) A fire-arm punctured wound 3 c.m. x 1 c.m. x going deep on the right side of chest, from 3 c.m.
From the right nipple and 14 c.m. From the right shoulder. The edges of the wound were everted.
Corresponding laceration was present on Qameez and it was a wound of exit.
(3) A fire-arm glancing wound 2 c.m. x 5 c.m. x muscle deep in the inner aspect of right elbow with heaping of dermis and other soft tissues on behind. The edges of the wound were inverted on the inner aspect.
(4) An abrasion 3 c.m. x 2 c.m on the left knee.
(5) A bruise 1 c.m. x 1 c.m. On the knee (right) on its outer aspect.
(6) An abraison 1 1/2 c.m. x 1 c.m. On right knee on inner aspect.
(7) A laceration 1 c.m. x 1 c.m. x skin deep on the tip of left big toe.
' On dissection rib underneath the injury and two ribs on the right side of the chest were found fractured. Left and right pleural cavity along with left and right lungs and upper part of the heard were also found perforated through and through.
' In the opinion of the doctor injury No,2 was exit of injury No,l. The said injury had been caused by fire-arm which proved fatal and was sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate whereas the time between death and postmortem examination was about 9 hours.
5. Mukhtar Ahmad Joiya Inspector/S.H.O. (P.W.10) was present on patrol duty near Chak No, 96/12-L where Altaf Hussain complainant got recorded his statement (Exh.P.A.) which was sent to Police Station Shah Kot for formal registration of the F.I.R. (Exh.P.,A./1). Thereafter the Inspector proceeded to the place of occurrence where the dead-body of Ahmad Sher deceased was lying. He prepared its inquest report (Exh.P.G.) and sent the dead-body to the mortuary for post-mortem examination.
During spot inspection he took blood-stained earth into possession vide recovery memo. Exh.P.B.
He also found an empty of bullet (P.W.5) at the spot which he took into possession vide recovery memo. Exh.P.C. He prepared rough site-plan of the place of occurrence and also recorded statements of the P.Ws. Under section .161, Cr.P.C.
' Muhammad Azam Bajwa S.-I. Also conducted investigation of this case. He arrested Muhammad Latif appellant on 6-2-2002. During investigation, he found the appellant guilty in this case and challenged him to Court.
6. Charge was framed against Muhammad Latif appellant to whom he pleaded not guilty and claimed to be tried.
7. At the trial, the prosecution produced as many as 13 witnesses to prove the charge against the appellant. Out of the same, Irshad Hussain and Ahmad Nawaz appeared as P.Ws. 4 and 5 to provide extra-judicial confession. Muhammad Hussain (P.W.6) entered the witness box to .Prove motive. Altaf Hussain and Muhammad Sher (P.Ws. 7 and 8) provided ocular account of the occurrence whereas Mukhtar Ahmad Joiya Inspector and Muhammad Azam Bajwa S.-I. Who had investigatedthe case appeared as P.Ws. 10 and 12 respectively. Dr. Syed Zameer ul Hassan Shah (P.W.11) appeared to provide medical evidence. Rest of the witnesses is of formal nature.
8. At the conclusion of the prosecution case, Muhammad Latif appellant made a statement under section 342, Cr.P.C. To a question why the case against him and why the P.Ws. Have deposed against him, he replied as under:-- "It is a false case. All the P.Ws. Are closely related inter se and also with the deceased. They have made false statements against me due to their close relationship with the deceased and enmity with me and also due to extract money from me. In fact it was .a blind murder and an unwitnessed occurrence which had taken place in the darkness of the night when the deceased was also alone when he was murdered. The complainant party summoned Ghulam Fareed Virk, Ali Muhammad Masoor and Bahawal Sher Khichi trackers in order to trace out the foot-prints of the culprits on the next day of the night of occurrence. The complainant party also brought sniffer dogs in order to trace out the culprits of this case. The complainant party had also suspected and nominated Muhammad Nawaz, Nasrullah, son of Muhammad Saeed residents of Chak No, 99/12-L.
Muhammad Afzal, Mumtaz, Pervaiz, Habib, Qamar and Bashir Ahmad caste Khichi, as culprits in this case who were subsequently exonerated by the complainant party after getting money from them.
The whole evidence in this case has been procured by the police in collusion with the complainant party after about 6/7 months of the occurrence in order to falsely involve me in this case."
9. At the end of the trial the appellant was convicted and sentenced as mentioned above.
10. In support of this appeal, learned counsel for the appellant has contended that the appellant was not named in the F.I.R.; that it was a night time occurrence; that the appellant was involved in this case on the basis of extra-judicial confession which was recorded after nine months of the occurrence; that no identification parade had been conducted to determine the culpability of the appellant; that the appellant admittedly being resident of the village of the complainant was fully known to him and had the occurrence been seen by the witnesses they would have definitely named the appellant as one of the murderers; that according to the F.I.R. The motive of the occurrence was stated to be political rivalry of the deceased while during the evidence the complainant as well as the other eye-witnesses had improved the prosecution version by importingnew story regarding the motive whereby it was claimed that Muhammad Latif appellant had suspected the liaison of his wife with the deceased; that the prosecution case is entirely based upon circumstantial evidence which has miserably failed to connect the appellant with the crime; that during the investigation different sets of accused were interrogated and services of the foot trackers and sniffing dogs were also hired which also shows occurrence was unseen. On the basis of the said submissions, he has prayed for the acquittal of the appellant.
11. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant has argued that the F.I.R. In this case was promptly lodged; that the prosecution case is supported by the ocular evidence, medical evidence and evidence of Irshad Hussain P.W.4 and Ahmad Nawaz P.W.5 who had deposed regarding the extra-judicial confession which was made by the appellant before them.
12. After hearing the arguments put forth by the learned counsel for the parties, I have concluded that initially the appellant was not named in the F.I.R. According to the prosecution version, the deceased was done to death right in their presence and three assailants out of whom one had shot Ahmad Sher to death were duly seen by the eye-witnesses who claimed that they could recognize the assailants on their encounter with them. On the basis of the said F.I.R. The legal machinery was put into motion and during investigation admittedly different sets of accused were investigated. It has further come on the record that services of foot trackers and sniffing dogs were hired to trace the murderers of the deceased. This fact was duly admitted by ,Muhammad Hayat P.W.3. Altaf Hussain complainant P.W.7., Muhammad Sher P.W.8 another eyewitness and P.W.9.
Mukhtar Ahmad Joyia Inspector/investigator of this case. The appellant was involved in this case on the basis of evidence of Irshad Hussain P.W.4 and Ahmad Nawaz P.W.5 who had claimed that on 6-2-2002 i. After about nine months of the occurrence, the appellant had met them at a bus-stop and had made extra-judicial confession of murdering the deceased. Admittedly, neither the said witnesses apprehended the accused/appellant at that time nor did they raise any hue and cry to get the appellant apprehended by public though it was admittedly a thickly-populated area: Besides that interestingly enough after hearing the said breaking news, they did not opt to tell the said story to the complainant or the Investigating Officer rather they proceeded to Sargodha as claimed by them and after 13 days of said disclosure they got their statements recorded under section 161, Cr.P.C. It is also interesting to note that uptil that stage the appellant was not even suspected to be the murderer. Therefore, it does not touch to my sense of judicial appreciation that as to why the appellant would confess his guilt before the said witnesses. For all said reasons no reliance can be placed on the evidence of said P.W.4 and P.W.5.
13. As mentioned above, the appellant was involved in this case on the basis of extra-judicial confession made by P.W.4 and. P.W.5 and after recording the supplementary statement to the said extent, he was challaned. While appearing as P.W.7 the complainant duly admitted that the appellant was resident of his village. Exact answer in this regard recorded during his cross- examination is as under:-- "It is correct that Latif accused is resident of my village."
' This sentence alone is sufficient for acquittal of the accused/appellant, keeping the background of the contents of the F.I.R. Into consideration as according to the said contents it was claimed by the complainant that the assailants/murderers were duly seen by the 'complainant and the other witnesses in the head-lights of the motorcycle but interestingly enough the appellant who was fully known to the complainant party was not named in the F.I.R. The improved story of the motive whereby it was alleged that the appellant had suspicion of illicit liaison of his wife with the deceased also shows that he was known to the witnesses. In the said backdrop, identification of the appellant during the trial is meaningless.
14. Besides the above-mentioned discussion it has been noticed that both the eye-witnesses had made deliberate efforts to improve their statements especially Muhammad Sher P.W.8. Had made visible D dishonest improvements. He had tried to make the learned trial Court believe that while making statement under section 161, Cr.P.C. He had named the appellant as one of the assailants.
The said statement entirely runs against the whole record. This fact shows that the said witness was desirous to see the appellant to go to the gallows at any cost. More-over during the investigation nothing incriminating material was recovered at E the instance of the appellant. The entire discussion made above, shows that the prosecution case is entirely based upon circumstantial evidence which is always treated a weak type of evidence. Similarly the extra- F judicial confession is also treated a weak type of evidence. Both the witnesses of extra-judicial confession have been disbelieved by me.It is established law that one tainted piece of evidence cannotcorroborate another such piece of evidence. In this backdrop, medical evidence alone cannot advance the case of the prosecution. For all the reasons mentioned above, I have come to a definite conclusion that the prosecution has miserably failed to prove the case against the appellant.
15. Consequently, this appeal is accepted. The conviction and sentences awarded to the appellant are set aside and he is acquitted of the H charge. He be released from jail forthwith if not required to be detained in any other case.
16. In view of what has been noticed and discussed above, Criminal ' RevisionNo, 45 of 2005 filed by Altaf Hussain complainant fails and is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.