' HASNAT AHMAD KHAN, J.-- Muhammad Imran appellant along with two others was tried by the learned Additional Sessions Judge Sahiwal, after having been challaned in case F.I.R. No.264 dated 11-7-2003 registered at Police Station Yousafwala, District Sahiwal under sections 302/201/109, P.P.C., who vide judgment dated 23-12-2004 acquitted Mst. Razia Bibi and Muhammad Rarnzan alias Dipal co-accused and convicted the appellant under section 302(b), P.P.C. For committing Qatl-i- Amd of Zulfiqar deceased and sentenced him to suffer imprisonment for life. The appellant was also directed to pay Rs.50,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to further under go six months' R.I. Benefit of the provisions of section 382-B, Cr.P.C. Was also granted to the appellant. He has challenged the conviction and sentence awarded to him, through the instant appeal.
2. The prosecution story as unfurled in the F.I.R. (Exh.P.H/1) lodged at the instance of Ghulam Fareed complainant is that on 5-7-2003 at 7-00 a.m. He asked about his brother Zulfiqar Ali as they had to go to Sahiwal. Muhammad Imran appellant told him that Zulfiqar Ali, his grandfather had left for Vehari and would return after 3/4 days. The complainant statedly went to Sahiwal. On 10-7-2003 the complainant, Muhammad Riaz and Ghulam Muhammad were sitting in their house where they came to know that Muhammad Imran appellant along with his mother was leaving his house along with all bag and baggage of his house upon which they stopped Muhammad Imran and brought them back to his house and inquired about Zulfiqar Ali. Imran after some resistance disclosed that he had murdered Zulfiqar Ali and had buried his dead body in his room. The complainant along with Riaz allegedly went inside the room and saw that Zulfiqar Ali was buried therein. It was alleged that in the meantime Muhammad Imran appellant decamped from the spot.
3. The motive behind the occurrence as stated, was that Imran appellant and Zulfiqar Ali deceased had strained relations due to the fact that Imran appellant wanted to get married but Zulfiqar deceased had opposed said idea of Imran without his getting some job. Due to this grudge Imran appellant had murdered Zulfiqar Ali, as stated by the complainant.
4. After investigation, all the three accused including the appellant were found guilty and challaned to the Court to face trial.
5. Charge was framed by the learned trial Court to which the accused pleaded not guilty and claimed to be tried.
6. At the trial, the prosecution produced as many as 14 P.Ws. Out of whom Dr. Syed Hafeez ur Rehman who , had conducted autopsy on the dead body of Zulfiqar deceased appeared as P.W.4; Ghulam Muhammad and Muhammad Riaz appeared as P.Ws. 6 and 8 to give ocular account of the occurrence; Falak Sher (P.W.9) and Muhammad Anwar (P.W.10) are the witnesses of extra- judicial confession whereas Niaz Ahmad S.I. Who had investigated the case appeared as P.W.14.
Rest of the P.Ws. Except Ghulam Fareed complainant (P.W.13) are formal in nature.
7. Ghulam Fareed complainant appeared as P.W.13. However, he resiled from his statement/complaint (Exh.PH) and blamed Ramzan co-accused for the murder of Zulfiqar deceased instead of Imran accused. He was, therefore, declared hostile and was cross-examined at length.
8. Dr. Syed Hafeez ur Rehman P.W.4 was posted at R.H.C. No.55/5-L on 12-7-2003 when he conducted post-mortem examination on the dead body of Zulfiqar deceased and found the following injuries on his person:--
(1) Cut laceration 4 c.m. x 1/2 c.m. x bone cut on lower jaw from right angle of mouth to chin (margins were contused on dissection). -
(2) Cut laceration 2 c.m. x 1 c.m. x bone exposed on forehead just above the inner part of right eye brow.
(3) Contusion 4 c.m. x 2 c.m. On right temple.
' On dissection the doctor found that frontal bone was fractured at multiple points and areas were depressed. Vertebrae were showing putrefaction of the surrounding tissues. Behind the injuries, membrains of brain were contused. Brain, was liquefied and spinal cord was putrefied.
' In the opinion of the doctor the death in this case was caused by Injuries Nos. 2 and 3 leading to comma and death which were sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was inunediate while between death and postmortem was more than 48 hours.
9. Niaz Ahmad S.I./I.O. Had recorded the statement (Exh.PH) of Ghulam Fareed complainant on 11-7- 2003 and dispatched the same to the police station for registration of the F.I.R. .(Exh.PH/1).
Thereafter he proceeded to the place of occurrence, prepared visual site-plan and moved an application for disinterment of the dead body of Zulfiqar deceased. On the next day the dead, body was exhumated in presence of the Illaqa Magistrate and the doctor (P.W.4) conducted the post- mortem. The I.O. Took blood-stained earth into possession and the last-worn clothes of the deceased and prepared all the recovery memos. He also recorded the statements of the P.Ws.
Under .Section 161, Cr.P.C. On the application of the complainant (Exh.P.M.) he arrested Ramzan and Mst. Razia accused on 22-7-2003 and 24-7-2003 respectively. On 27-7-2003 he arrested Imran accused and got recovered hatchet (P.4) on his pointation. As a result of the investigation conducted by him, the I.O. Found all the three accused guilty of the offence and challaned them to Court.
10. After conclusion of the prosecution evidence, the appellant made statement under section 342, Cr.P.C. When questioned as to why the case had been made against him and why the P.Ws. Had deposed against him, he replied:-- "I have been falsely implicated in the case. P.Ws. Are related inter se. The P.Ws. Anwar, Falak Sher and Haitam wanted to usurp the agricultural land of Zulfiqar deceased which he had given to his sister Zuhran Bibi. My mother Razia and her children along with me are the legal heirs of Zulfiqar deceased. P.Ws. Were interested to get the agricultural land of Zulfiqar deceased and to deprive us of our share. They have involved me in this case falsely with mala fide intention."
11. At the end of the trial the appellant was convicted and sentenced as mentioned above.
12. During pendency of this appeal, Criminal Miscellaneous No.246-M of 2005 was filed seeking acquittal of the appellant on the ground that the legal heirs of Zulfigar Ali deceased had entered into a compromise with the appellant. This Court vide order dated 12-5-2005 referred the matter of compromise to the learned Sessions Judge Sahiwal to ascertain the legal heirs of the deceased and to look into the authenticity and genuineness of the compromise acclaimed to have been arrived at between the parties. The learned Sessions Judge submitted his report on the basis of report submitted by Tehsildar and the concerned S.H.O. The Tehsildar had reported to the learned Sessions Judge that Zulfiqar deceased had earlier married with Mst. Naimat Bibi and had two sons, namely, Wali. Muhammad and Muhammad Ameen and one daughter Mst. Bhagan. It has been further reported that one Mst. Razia claimed to be the wife of Zulfiqar and also claimed that she had a son Mukhtar and five daughters by the loins of Zulfiqar deceased but she could not produce any Nikahnama. The Tehsildar further reported that Haitam and Muhammad Anwar, real brothers of Zulfiqar deceased had claimed that Mst. Razia was wife of Wali Muhammad son of Zulfiqar and the above-said children were born out of the wedlock .Of Mst. Razia and Wali Muhammad. Thus according to the learned Sessions Judge there were two sets of legal heirs, one being Mst. Razia and her son and daughters and the other of Mst. Naimat Bibi and his sons and daughter. Since whereabouts of Mst. Naimat Bibi and her children were not known, therefore, their statements having entered into a compromise with the appellant, could not be recorded. Faced with this situation, the learned counsel for the appellant on instructions, did not press Criminal Miscellaneous No.246-M of 2005 and prayed for withdrawal of the same which prayer was allowed vide order dated 26-9-2005 and the petition was dismissed as withdrawn. Therefore this appeal is being decided on merits.
13. Learned counsel for the appellant has contended that this is a case which is based upon circumstantial evidence. There is no direct evidence against the appellant. On the basis of same evidence two of the accused, namely, Mst. Razia and Ramzan have already been acquitted, therefore, strong corroboration is required to convict the appellant which is lacking in this case; that the complainant who had appeared as P.W.13 has resiled from his statement; that the learned trial Court had disbelieved the motive and the conviction has been mainly based upon the evidence of Ghulam Muhammad P.W.6 and Muhammad Riaz P.W.8 who had provided the evidence of extra-judicial confession against the appellants. On the basis of the said submissions, he had contended that the prosecution has failed to prove its case beyond shadow of doubt and, therefore, the appellant is entitled to acquittal.
14. Conversely, the learned Deputy Prosecutor General has opposed the appeal by contending that the prosecution has proved its case beyond shadow of doubt and, therefore, the appellant is not entitled to acquittal.
15. After hearing the arguments of the learned counsel for the parties it has been straightaway noticed that it is an un-witnessed occurrence. The prosecution's case rests upon the evidence of medical evidence, motive, extra-judicial confession and recovery of hatchet. As far as medical evidence is concerned that does not advance the case of the prosecution in any way as it A was an unwitnesscd occurrence. As far as the motive is concerned, which could have been a strong piece of evidence against the appellant, has been disbelieved by the learned trial Court.. I have gone through the findings of the learned trial Court as far as story of motive is concerned. Perusal of said finding shows that the same is well-founded. According to the prosecution story the appellant had murdered the deceased, his grandfather, who had refused to get him married.
During the investigation said motive was furnished by Ghulam Farid (P.W.13) who while appearing in the witness-box had resiled from his previous statement. Ghulam Muhammad P.W.6 and Muhammad Riaz P.W.8 who were basically witnesses of extrajudicial, confession had stated the abovementioned story of motive but they were duly confronted with the statements made by them under section 161, Cr.P.C. Wherein said story was not mentioned. For the said reasons story of motive was rightly disbelieved by the learned trial Court. As far as recovery of hatchet is concerned, admittedly the same was not blood-stained, therefore, does not connect the appellant with the alleged crime.
16. On the basis of the same evidence, Mst. Razia Bibi and Ranizan accused have been acquitted by the learned trial Court, therefore, strong corroboration was required to connect the appellant with the alleged crime. But apart from the evidence of extra-judicial confession, no corroboration is forthcoming against the appellant. As far as the evidence of P.W.6 and P.W.8 who had furnished the evidence of extra-judicial confession is concerned, the conviction on capital charge cannot be c based on the said evidence inasmuch as the evidence of extra-judicial confession is always treated to be a weak type of evidence. While dealing with the question of motive, the learned trial Court had, disbelieved them as far as their statements relating to the story of motive were concerned. Consequently no implicit reliance can be placed on the evidence of such-like witnesses who admittedly are related to the deceased.
17. For all the reasons mentioned above, I have come to the conclusion that the prosecution has failed to prove the case against the appellant beyond shadow of doubt. Consequently, while giving the ID benefit of doubt, this appeal is accepted and the'appellant is acquitted of .The charge. He is set at liberty and be released forthwith if not required to be detained in any other case.