' HASNAT AHMAD KHAN, J.--- Appellant Muhammad Ramzan along with Mukhtiar co-accused was tried for the murder of Muhammad Iqbal in F.I.R. No,209 of 1997, dated 25-8-1997 under section 302, P.P.C. Registered with Police Station Sarai Sidhu, District Khanewal by learned Additional Sessions Judge, Khanewal who vide judgment dated 17-10-2001 convicted him under section 302(b), P.P.C.
And awarded death sentence. He was also directed to pay compensation amounting to Rs,1,00,000 to the legal heirs of Muhammad Iqbal, deceased under section 544-A, Cr.P.C. In default whereof he was further directed to undergo six months' S.I. However, Mukhtiar, the co-accused was acquitted of the charge.
2. Challenging his conviction and sentence the appellant has filed Criminal Appeal No,753 of 2001 while Khizar Hayat complainant has filed Criminal Appeal No,872 of 2001 challenging the order of acquittal of Mukhtiar, the co-accused. Trial Court has also made a reference (Murder Reference No,41 of 2002). All these matters are being disposed of together by this judgment.
3. Summarizing the facts as narrated by Khizar Hayat P.W.8 complainant in the F.I.R. Are that on 25- 8-1997 at about Maghrib Wela, complainant Muhammad Iqbal (deceased), Rab Nawaz, Ghulam Murtaza and Iftikhar Ali P.W.9 were present at Pull Gamoon Wali. After Maghrib Wela Iqbal along with Iftikhar Ali left the bridge and proceeded towards their houses on metalled road. Meanwhile, Zafar Hussain also reached there and joined them on a bicycle and when they reached on Kacha road leading towards Chah Deray Wala at 8-15 p.m. Muhammad Iqbal deceased separated himself and went to his home on Kacha road. The complainant and Rab Nawaz also proceeded towards their homes. After a shortwhile they heard a fire shot and voice of Muhammad Iqbal deceased who had shouted that he had received fire-arm injury upon which complainant and Rab Nawaz P.W. Allegedly rushed towards Muhammad Iqbal and attended him. They saw that Muhammad Iqbal had received fire-arm injury on his backside. In the meanwhile Zafar Hussain, Iftikhar Ali, P.W.9 Rab Nawaz and Haq Nawaz, P.W.7 also reached at the spot. It was further alleged in the F.I.R. That Muhammad Iqbal injured was removed for treatment but he succumbed to the injuries on the way. Complainant allegedly went to the police station and got Exh.P.E. Registered.
4. Investigation was conducted by Habib Ahmad, S.-I. Who recorded statement of the complainant on 25-1-1997 at about 10 p.m. Which is Exh.P.E., thereafter Investigating Officer proceeded to the place of occurrence, took into possession the dead body of Iqbal, deceased, prepared inquest report Exh.P.H. And injury statement Exh.P.1, then handed over the dead body of Muhammad Iqbal deceased to Muhammad Ashraf, constable for escorting the same to hospital for post-mortem examination. Thereafter, he inspected the spot, taking into possession the blood-stained earth and empty cartridge P.7 from the place of occurrence through Exhs.P.C. And P.D. Respectively. Then he prepared rough site plan (Exh.P.J.) of the place of occurrence, thereafter he recorded supplementary statement of the complainant and statements of P.Ws. Under section 161, Cr.P.C.
Afterwards Muhammad Akram, S.H.O. Took over the investigation and recorded statements of Muhammad Zafar, Muhammad Nawaz, Ghulam Murtaza, Hashmat Iqbal, Afzal and Thiraj P.Ws. He also took into possession the bloodstained last-worn clothes of Muhammad Iqbal, deceased, i.e. Shirt P.1, Shalwar, P.2, Vest P.3, Safa P.4, string P.5 vide recovery memo. Exh.P.A. He got prepared site plan Exh.P.F./1-2. Muhammad Ramzan appellant who was arrested on 13-9-1997 allegedly got recovered single barrel .12 bore gun on 19-9-1997 from his shop through recovery memo. Exh.P.B.
After the investigation appellant and Mukhtiar co-accused were challaned. Both of them were tried by learned Additional Sessions Judge, Khanewal for the offence under sections 302/109, P.P.C.
5. During the trial the prosecution came forward with 18 witnesses in all to prove the prosecution case. Muhammad Iqbal and Hashmat appeared as P.W.1 and P.W.2 and both of them stated that on the day of occurrence they had seen Muhammad Ramzan appellant armed with .12 bore gun along with Mukhtiar, acquitted co-accused while going towards Chah Dera Wala. They further deposed that on their inquiry Muhammad Ramzan had replied that he had got the pin of his gun repaired and they were going to check it. They further deposed that Mukhtiar acquitted co- accused went to his house while Ramzan appellant went towards Chah Dera Wala and after half an hour Muhammad Iqbal (deceased) received the fire-arm injury. They further deposed that Muhammad Ramzan appellant had committed the murder of Muhammad Iqbal.
6. Muhammad. Zafar and Muhammad Nawaz appeared as P.W.3 and P.W.4 claiming themselves as the witnesses of Wajtakkar. According to them on the fateful day they heard the noise of fire upon which they rushed towards the place of occurrence and saw the appellant armed with .12 bore gun while running from the site of the place of occurrence. Allah Bakhsh and Khuda Bakhsh both real brothers appeared as P.W.5 and P.W.6 respectively and furnished the evidence regarding extra- judicial confession allegedly made by the appellant and Mukhtiar, acquitted co-accused before them.
7. Haq Nawaz, P.W.7 stated that on 25-8-1997 when he heard a fire shot and rushed towards that side, he saw that Muhammad Iqbal deceased had received fire shot injury at his back, whereas Khizar Hayat complainant along with other witnesses was present there. He further deposed that in his presence police had taken into possession empty cartridges of .12 bore gun. Khizar Hayat complainant appeared as P.W.8 and supported the story mentioned in the F.I.R. Exh.P.E. As well as supplementary statement. He further claimed that the basic design of this horrendous act was chalked out by the acquitted co-accused Mukhtiar whose sister poured the poison into his ears that the deceased Iqbal sent her the abominable message to have illicit relations with him. Iftikhar Ali appeared as P.W.9 and supported the version narrated by the complainant Allah Ditta Patwari who had prepared the site plan appeared as P.W.10.
' Dr. Zulfiqar Ali Medical Officer, the conductor of post-mortem examination on the dead body of Muhammad Iqbal, deceased appeared as P.W.13 and gave the details of injuries as under:--
(1) Fire-arm injury, margins were inverted, 1/2 x 1/2 c.m. Going deep on back and left side of chest 6 c.m. Away from mid line, just above the last rib.
(2) Fire-arm injury margins were inverted 1/2 x 1/2 c.m. Area, 5 c.m. Medials to injury No,1.
(3) Fire-arm injury, margins were inverted 1/2 x 1/2 c.m. Area, 2 c.m. Medial to injury No,2.
(4) Fire-arm injury, margins were inverted, 1/2 c.m. Area, 4 c.m. Medial to injury No,3.
' Fire-arm injury 1Y2 x 1/2 c.m. Area, margins were inverted, 3 c.m. Above injury No,3.
(6) Fire-arm injury, margins were inverted 1/2 x 1/2 c.m. Area, just near to injury No,5.
(7) Fire-arm injury, margins were inverted 1/2 x 1/2 c.m. Area, two c.m. Lateral to injury No,6.
(8) Fire-injury, margins were inverted 1/2 x 1/2 c.m. Area just near to injury No,7.
(9) Fire-arm injury 1/2 x 1/2 c.m. Area, margins were inverted, 1 c.m. Above injury No,8.
' The corresponding holes for the all above injuries were present on the clothes.
(10) Fire-arm injury, margins were inverted 1 x 1 c.m. Area, 4 c.m. Above outer part of Rt. Wrist joint in front of Rt. Fore-arm.
(11) Fire-arm injury with inverted margins, 1 x 1/2 c.m. Area in front and middle of Rt. Wrist joint. Exit wound.
Exit wound
(12) 1 x 1/2 c.m. Area, margins were everted 3 c.m. Above the medial side of Rt. Wrist joint on back of Rt. Forearm.
(13) 1/2 x 1/2 c.m. Area just below and back to the Rt. Wrist joint.
(14) 1/2 x 1/2 c.m. Area fire-arm injury on Rt. Side of abdomen, 11 c,.m. Above umbilicus.
(15) Fire-arm injury 1/2 x 1/2 c.m. Area, the margins were everted 10 c.m. Below to injury No,14.
8. Habib Ullah, S.-I. And Muhammad Akram Inspector Police appeared as P.W.14 and P.W.18 and gave the details of their investigation. Rest of the witnesses are of formal nature.
9. After tendering report of Chemical Examiner Exh.P.K., report of Serologist Exh.P.L. And report of Forensic Science Laboratory Exh.P.M. Learned S.P.P. Closed the case of prosecution.
10. On the completion of the prosecution evidence the appellant as well as Mukhtiar co-accused were examined under section 342, Cr.P.C. And in answer to question No,10 Muhammad Ramzan appellant replied as under:-- "The case is false and fabricated. It is a blind murder as is evident from prosecution story. None had seen the occurrence or heard any fire shot. It seems that after a longtime, complaint and P.Ws.
Came to know about the murder. All the P.Ws. Are interested, inter se related and are inimical towards me. They had deposed falsely. The case was registered after due deliberation and consultation, even then the name of accused and motive was unknown to the complainant and P.Ws. They later on with the connivance of Investigating Officers, introduced the names of accused.
Motive taken up by the complainant and P.Ws. During the investigation was left by them during trial, rather it was contradicted by them. Motive otherwise was not even plausible that a sister will tell to his real brother about the message of a paramour and the brother will conspire with the other paramour of his sister.For the murder of second paramour. The evidence of Wajtakkar before the occurrence and after the occurrence is totally false and fabricated. It is an afterthought. It has not come before the first Investigating Officer. All the P.Ws. In this regard are interested, inter se related and inimical towards me. The story of the complainant and the other P.Ws. That they heard fire shot and voice of the deceased that he had received fire shot is also totally false and afterthought and evidence of extra-judicial confession was concocted later on with the connivance of Investigating Officer through interested witnesses. This story is also highly unbelievable. I had no connection with Allah Bakhsh and Khuda Bakhsh, P.Ws. Hence, there was no occasion for me for going there and making confession before them. Story of over hearing plan of murder on 20-8-1997 in my shop is also totally false and fabricated. There was no occasion of Muhammad Afzal and Thiraj P.Ws. Coming to my shop from such a long distance and entering the shop without permission. It is noteworthy that these P. Ws. Kept mum from 20-8-1997 to 26-8-1997.
Had there been any plan between me and my co-accused Mukhtar, the P.Ws. Should have informed the deceased to save his life. I had no connection with Mst. Razia nor any link with my co- accused, Mukhtar. The recovery of empty is also false and fabricated. It has been introduced to strengthen the prosecution story. Gun has been planted upon me, it is not mine. The recovery is bogus, false and fabricated and it is against the provisions of section 103, Cr.P.C. It is also interesting to know that the key for opening the shop of the accused, i.e. Place of recovery was said to be lying in an open hole in the outer wall, situated on the main road. I had pleaded my innocence through the investigation but due to pressure of complainant party, my defence was not brought. On record. The reports of the Chemical Examiner and Forensic Science Laboratory are also fake and fabricated and have been procured after firing the gun at the police station before sending empty and gun to the concerned laboratory. It is dark night and unseen occurrence. All the pieces of evidence have been manoeuvred and manufactured in connivance with Investigating Officers to connect me falsely in the crime and to strengthen the case. The deceased was a man of bad character due to which he had many enemies. He might have been murdered by some of his enemy. The real culprits could not be traced out. I was later on with the connivance of P. Ws.
Implicated in this case with my co-accused due to enmity and suspicion. I am innocent. I had not committed the offence. I neither had any motive nor any enmity with the deceased."
11. On the conclusion of the trial the learned trial Court proceeded to acquit Mukhtiar Ahmad, the co-accused, while appellant was convicted and sentenced as mentioned above.
12. In support of the appeal filed by Muhammad Ramzan the learned counsel for the appellant has contended that it was a case. Of unseen occurrence; the appellant was not named in the F.I.R.; entire prosecution case stands upon circumstantial evidence which was not believable; motive as set up during the investigation could not be proved which even otherwise was disbelieved by the learned trial Court; that on the same evidence the co-accused who according to the prosecution had the motive to kill the deceased has been acquitted by the learned trial Court and as such strong evidence was required to convict the appellant but the same is not forthcoming in the present case; that the appellant had no motive or enmity to murder the deceased; that the prosecution case is entirely based on tainted pieces of evidence and it is established law that one tainted piece of evidence cannot corroborate other tainted piece of evidence. Regarding the recovery he has asserted that although there is a positive report of Fire-Arm Expert yet same cannot be relied upon as empty cartridge recovered from the place of occurrence was not sent to the Fire-Arm Expert till the arrest of the accused.
13. On the other hand the learned State counsel assisted by the complainant counsel has contended that prosecution has proved its case against the appellant beyond any shadow of doubt through the circumstantial evidence which has proved the guilt of the appellant to its hilt and he has supported the impugned judgment whereby the appellant has been convicted.
14. After hearing and considering the arguments of both the parties and on in-depth study of the record, we have straightaway observed that it was an unseen occurrence and the finger was not placed on anyone as confirmed murderer of Muhammad Iqbal deceased, in the F.I.R. So much so that even the suspicion was not raised against any person. Further more the murder was committed in the darkness of night. It was only during the investigation that the appellant and the acquitted accused were implicated in this case. To prove the case against the appellant the prosecution has relied upon following piece of evidence:-
(i) Motive;
(ii) Circumstantial evidence in the shape of Wajtakkar;
(iii) Evidence of extra-judicial confession;
(iv) Medical-legal report;
(v) Evidence of conspiracy; and
(vi) Recoveries.
' We will now appreciate all these pieces of evidence one by one.
Motive. According to the prosecution case the motivating factor behind the murder as deposed by Khizar Hayat complainant was that P.W.15 Muhammad Afzal had told to the complainant that Iqbal deceased had sent a message to Mst. Razia, sister of Mukhtiar co-accused for maintaining illicit relations with him due to which Mukhtiar Ahmad got the deceased murdered at the hands of Ramzan appellant. This piece of evidence was rightly disbelieved by the learned trial Court as such no further discussion is required in this regard.
Medical evidence. Unfortunately the occurrence was unseen therefore, the medical evidence does not aid the prosecution much. However, the statement of P.W.13 tends to show that instead of backing the prosecution case it has contradicted the same inasmuch as according to the prosecution only the voice of one fire shot made its way to ears of complainant and his companions whereas during the cross-examination the doctor admitted that the deceased had received two separate fires. One was fired from backside and the second was fired on the front side of the deceased. He further deposed that after receiving injuries Nos.1 to 9 the deceased was not in a position to raise alarm as claimed by the prosecution. Moreover he braced the fact that death of the deceased was sudden and as such the claim of the prosecution that after reaching at the spot the complainant and the other witnesses had removed Muhammad Iqbal, deceased in condition of unconsciousness and while oh the way to the doctor he succumbed to the injuries, has been contradicted by the medical evidence. Delay of more than two hours in lodging the F.I.R. Also shows loopholes in the case of the prosecution.
Conspiracy. The evidence of conspiracy as furnished by Muhammad Afzal P.W.15 has already been rightly disbelieved by the learned trial Court, hence it also does not require serious consideration by us.
Circumstantial evidence/Wajtakkar evidence. Muhammad Iqbal and Mehar Hashmat appeared as P.W.1 and P.W.2. Both of them deposed that half an hour before the occurrence they saw Muhammad Ramzan, appellant and Mukhtiar acquitted co-accused while said witnesses were standing on a metalled road. According to them Muhammad Ramzan having .12 bore gun and on inquiry he had replied that they had got the pin of the gun repaired and they were going to check the same. After that reply both the appellant and Mukhtiar went ahead and after covering a distance of one acre Mukhtar departed while Ramzan proceeded towards Chah Deray Wala. Their evidence does not ring true for had they seen the appellant and acquitted co-accused with a gun, they being the close relatives of the deceased would have certainly foretold the complainant, regarding said fact and the complainant in turn would have certainly nominated the appellant in the F.I.R. Which was got registered with the delay of more than two hours. At least he could have shown suspicion against the appellant. P.W.1 Muhammad Iqbal is the cousin of Muhammad Iqbal deceased while Hashmat P.W.2 is admittedly uncle of complainant as well as of the deceased.The occurrence being of night time, the question of identification of the appellant is also open to serious doubt specially when it was admitted by P.W.1 that it was a dark night and even otherwise it does not appeal to reason that having, selected the dark night time for the commission of offence, the assailants would not conceal them before the commission of the crime. While being cross- examined, P.W.1 braced the fact that he along with Hashmat and other P.Ws. Was present when the police reached at the Dera but they did not narrate the story to the Investigating Officer. Admittedly the place of occurrence is only at a distance of five acres from the place where the appellant and the above said two witnesses had met half an hour before F the occurrence while the said time gap also makes the statement of the said witnesses prone to doubt.
' P.W.3 Muhammad Zafar, who is also cousin of the complainant, had,appeared to depose that just after, five minutes of hearing of the fire shot Ramzan appellant had met him and Muhammad Nawaz P.W.4 while coming from the side of place of occurrence. Evidence of said two witnesses is also highly doubtful inasmuch as they had allegedly seen the appellant coming on the place of occurrence just after five minutes of the alleged commission of offence but they did not bring the said fact into the knowledge of the complainant instantly though were closely related to the deceased as well as the complainant. They had claimed having seen the appellant in the tubelight.
Muhammad Zafar. P.W.3 admitted in cross-examination that he had seen Muhammad Ramzan from a distance of one acre. Identification from such a distance in the night is highly arguable. Said P.W. Admitted the fact during the cross-examination that after hearing the voice of the fire shot they had moved to Dera of Iqbal deceased but according to them complainant had left for the police station before they reached. Said statement seems to be artificially fabricated to cover the lapse of not nominating the accused persons in the F.I.R. Even otherwise his statement under section 161, Cr.P.C. Exh.P.A. Was recorded on 26-8-1997, that also shows that evidence of Wajtakkar was fabricated by the Investigating Officer later on. For all the said reasons the evidence of Wajtakkar as provided by P.W.3 and P.W.4 is discarded and disbelieved being not trustworthy.
Evidence of extra-judicial confession. As per extra-judicial confession provided by Allah Bakhsh P.W.5 and Khuda Bakhsh P.W.6. Muhammad Ramzan appellant and Mukhtiar acquitted accused visited them while they were sitting at Dera and Ramzan, appellant requested them to hear him separately and thereafter made his confession taking the responsibility of this gross act of murder.
Afterwards Mukhtiar co-accused, made the similar statement. The motive for murder was given that Mst. Razia, sister of Mukhtiar had complained to him regarding the messages sent to her by the deceased. Said story had already been disbelieved by the learned trial Court. Evidence of extra-judicial confession is always treated contemptuously and it is not given much weight as an evidence. Prima facie the story put forward by said witnesses seems hollow as there was no reason for the appellant to approach said witnesses for making the confession. Allah Bakhsh P.W.5 admitted during the course of investigation that they had told the story of confession to the complainant in the presence of Investigating Officer. It is not believable that the accused had admitted the commission of the offence of murder but the said witnesses made no effort to apprehend them and they were simply let off with the assurance that they would talk to the complainant for compromise which commitment according to them was abided by and they approached the complainant in presence of the Investigating Officer. Said conduct of the witnesses is also arguable. Yet another reason for disbelieving the evidence of extra-judicial confession against the appellant is that the same has already been disbelieved qua acquitted co- accused. As the said witnesses even otherwise is not the person in authority the story of extra- judicial confession is disbelieved.
Recoveries. Reliance has been placed by the learned State counsel as well as by the complainant counsel on this piece of evidence and according to them empty cartridge recovered from the place of occurrence had wedded with the gun allegedly recovered from the appellant. This piece of evidence is also not believable, for, according to the prosecution the recovery of empty cartridges was effected on the fateful day but the same was sent to the Fire-Arm Expert on 30-9- 1997, the day on which the accused was arrested. No plausible reasons had been advanced as to why the same was not sent to the Fire-Arm Expert before the arrest of the appellant. Possibility of recovery of gun on the same day and sending the empty cartridge after firing film said gun as alleged by the accused cannot be ruled out. Moreover, another reason for not placing any belief in said piece of evidence is that though empty cartridge allegedly recovered was found at the place of occurrence but admittedly nothing such-like mention was made in the F.I.R. It was admitted by the complainant that he did not mention the said fact in his statement/F.I.R. Exh.P.E. Even otherwise, according to the prosecution, only one shot was fired. There was no possibility of ejecting of empty/cartridge. For all the reasons, we feel no hesitation to discard the positive report of Forensic Science Laboratory, also.
Conclusions. As mentioned above all pieces of evidence provided by L the prosecution are found to be tainted and manipulated and it is established law that one tainted piece of evidence cannot furnish corroboration to another tainted piece of evidence. Consequently, after discussion of all the prosecution evidence available on the record, we have come to the conclusion that the prosecution has failed to prove its case beyond the shadow of doubt and by way of abundant caution, we are inclined to extend benefit of doubt to the appellant especially in view of the settled law, it is better to err in acquittal rather than to err in N conviction. The appeal in hand is accepted, conviction and sentence awarded to the appellant is set aside and the appellant stands acquitted from the charge of murder. He be released forthwith from jail, if not required to be detained in any other case.
' Death sentence awarded to the appellant is not confirmed and the Murder Reference is answered in the negative.
' For all the reasons stated above, criminal appeal filed by the complainant against the acquittal of Mukhtar accused is also found to be meritless and consequently is dismissed.