' SH. HAKIM ALI, J.---"Where victim is tyrant, where witnesses are partisan, where police is indolent, where accused is innocent, and where Judge is kept ignorant, how truth can come out and how the justice can be done, is the theme and outcome of this judgment."
' Muhammad Younus alias Bagga, convict appellant of the above titled- appeal, having heard the conviction and sentence under section 302(b) of the P.P.C. To undergo life imprisonment with a direction to pay a sum of Rs,1,00,000 as compensation under section 544-A of the Cr.P.C., failing which to suffer six months more simple imprisonment and under section 7-A of the Anti-Terrorism Act, 1097, to suffer imprisonment for life and to pay the amount of Rs,1,00,000 as fine and in default of payment whereof, to undergo more simple imprisonment for six months, has come to this Court against this announced and pronounced judgment of conviction dated 24-11-2005, recorded by learned Judge, Anti-Terrorism Court, Bahawalpur (Mr. Muhammad Akram Khan), in case titled "The State v. Muhammad Younus alias Bagga" with regard to an occurrence, reported through F.I.R.
No,215 of 2004 dated 20-5-2004, within 20 minutes from the occurrence to Abdullah, A.S.-I. Of Police Station Liaqatpur, District Rahimyar Khan, under section 324/34 of the P.P.C. (Section 302, P.P.C.
Added afterward upon the death of the informant).
2. Blubbering against the conviction and sentence awarded, Muhammad Younus, convict appellant states as to how he has been made a scapegoat for the nominated accused, his learned counsel as well as the learned counsel appearing on behalf of the State, and for the mother of the informant, namely, Mst. Srdaran, have narrated the alleged occurrence and we have also tried to search out the reality of the occurrence from the record in hand, which had commenced with the lodging of a report by Ghulam Farid, a victim (now deceased) of the offence with an A.S.-I. Of Police Station, Liaqatpur on 20-5-2004 at about 2-00 a.m. (mid-night) near Fauji Colony, Chak No,23-A, Police Station Liaqatpur: The narration of the occurrence as stated by the victim of the incident is reproduced hereunder in verbatim for ready reference:--- "I am resident of Chak No,23/A Colony, Muhammad Akbar and Muhammad Ashraf sons of Muhammad Latif, who are my neighbours, are running a retail shop on a thoroughfare.
Muhammad Akbar used to have a bad eye on my wife. He made obscene joke with my wife. My wife told me. I forbade Muhammad Akbar, who felt annoyed. On 20-5-2004, I along with my family members was sleeping in my house, when at about 1-40 a.m. In the night, Muhammad Akbar and Muhammad Ashraf trespassed into my house. I woke up. Muhammad Akbar told to me that they would teach him a lesson for the disgrace he had done and threw a gallon full of acid upon my face, eyes and other parts of my body. On my hue and cry, Himmat Khan son of Muhammad Yousaf and Muhammad Younus son of Inayatullah, residents of the village, also woke up and arrived at the spot and had seen the occurrence with their own eyes. They began to take care of me while the accused persons succeeded to run away, by scaling the wall over. Due to throwing of acid, my whole body was burnt. Motive behind the occurrence is that Muhammad Akbar wanted to develop illicit liaison with my wife and upon admonishing by me, he along with his brother has sprinkled/poured acid on my body."
3. The investigation of this case was conducted by the police. During the investigation, Muhammad Akbar and Muhammad Ashraf, nominated accused were declared innocent on 6-6-2004 by the police as it took somersault and brought into picture another person, namely, Muhammad Younus, the present convict appellant (brother of Mst. Sobia (somewhere noted as Sofia], the wife of Ghulam Farid). How this declaration of innocence of clearly nominated accused occurred, how the substitution of present convicted appellant proceeded and how he was entangled in the case, are mysterious questions requiring to be answered.
4. After completion of investigation, instead of sending up Muhammad Akbar and Muhammad Ashraf, the report under section 173 of the Cr.P.C. Was submitted against the present convicted appellant in the Court of learned Judge, Anti-Terrorism, Bahawalpur, to face the trial.
5. At the commencement of trial, the learned trial Court framed a charge with two heads, one under section 302 of the P.P.C. And the other under section 7-A of the Anti-Terrorism Act, 1997 against Muhammad Younus alias Bagga, to which he pleaded, not guilty and claimed trial.
6. During the trial prosecution produced fourteen witnesses in support of its case against the accused/appellant, i.e. Dr. Muhammad Ibrahim Khan (P.W.1), Muhammad Abdullah, A.S.-I. (P.W.2), Dr. Muhammad Nadeem Zia (P.W.3), Rafiq Ahmed, A.S.-I. (P.W.4), Muhammad Saeed (P.W.5), Muhammad Habib (P.W.6), Muhammad Anwar (P.W.7), Muhammad Aslam, Patwari (P.W.8), Muhammad Aslam (P.W.9), Aziz-ur-Rahman, S.-I. (P.W.10), Naseer Ahmad, 1044/C (P.W.11), Nasir Hussain, 1401/C (P.W.12), Sajid Hassan, Inspector (P.W.13) and Hakim Ali, S.-I. (P.W.14). Prosecution also tendered into evidence Exh.P.A. To Exh.P.H. As documentary evidence through the statements of different witnesses.
7. In his statement recorded under section 342 of the Cr.P.C., Muhammad Younus, accused/appellant denied the prosecution allegations and in reply to the question "Why this case against you and why the P.Ws. Deposed against you?", he made the following statement:-- "On the night of occurrence, I was sleeping in my house when at mid-night time, my sister Mst.
Sobia and Himmat All rushed there and told me that Akbar and Ashraf had thrown acid upon Ghulam Farid and that he was suffering from severe pain. I accompanied them to the. House of Ghulam Farid which was situated at a distance of two 'Acres from my house and immediately took him to Civil Hospital, Liaqatpur. -Thereafter, we brought him at Bahawalpur Hospital and had been looking after him. The case was lodged on the statement of my brother-in-law Ghulam Farid. Both the real culprits Ashraf and Akbar, then collaborated with the police and also bribed Mst. Sardaran, the mother of Ghulam Farid complainant/deceased . They then implicated me on the basis of wrong assumption. I am the most aggrieved person as with the death of Ghulam Farid, my sister Mst. Sobia becalm widow. Mst. Sardaran had been nourishing a long standing grudge against me and with the death of her son, she availed such opportunity to take revenge. In fact Ghulam Farid, deceased had earlier married Mst. Naseem, the niece of Mst. Sardaran whom he subsequently divorced and then had contracted marriage with my sister Sobia. Further, Mst. Sardaran had given his daughter Mst. Shamshad in 'Nikah' to my brother Ramzan who was divorced by him prior to her 'Rukhsati'. With this background, Mst. Sardaran turned hostile out of previous grudge with the result that she preferred to let of the real culprits after getting gratification from them and in order to satisfy her ego, has implicated me. It may be added that my second wife Mst. Shamim Mai is Dudpotri and belongs to brotherhood of Mst. Sardaran. This my marriage with her was against the wishes of Mst. Sardaran Bibi. I am totally innocent. I cannot think of to be a party to the murder of my own brother-in-law. My sister Mst. Sobia has two children from Farid and is living with me. I have also five children from my two wives and due to the connivance of Mst. Sardaran, I and my sister Sobia have been left to suffer unimaginable agony.
' All the P.Ws. Are interested and inimical towards me. They are set-up witnesses worth no reliance at all."
' Muhammad Younus, accused/appellant himself appeared as D.W.1 to make statement under section 340(2) of the Cr.P.C. And produced Mst. Sobia Naseem as D.W.2. He also tendered in evidence copy of statement of Mst. Sobia Naseem, recorded under section 161 of the Cr.P.C., as Exh.D.A.
8. At the conclusion of the trial, learned trial Court found the prosecution case against the convict appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the present appeal by the convict before this Court.
9. Learned counsel appearing on behalf of the convict appellant submits:--
(a) that against the convict appellant, evidence was consisting of three examined P.Ws. Nos.5 to 7 for making extra judicial confession, affidavit of Ghulam Farid, supplementary statement of aforesaid Ghulam Farid and the recovery evidence;
(b) that the statements of P.Ws. Nos.5 to 7 regarding extra judicial confession cannot be believed because these are incredible and were against the course of normal events;
(c) that there was no reason for Muhammad Younus convict appellant to make extra-judicial.
Confession before the aforementioned witnesses as well as before Ghulam Farid, victim;
(d) that affidavit of Ghulam Farid was not brought on the record;
(e) that there was no, eye-witness account to hold, the convict appellant as the real culprit;
(f) recovery of bucket, which was allegedly effected on 8-6-2004 was a fabricated and unreliable evidence, having been planted about 18 days after the alleged occurrence and having been recovered from a pond. The bucket having not been got examined from the Chemical Examiner as to whether it was used for carrying acid and throwing it upon the victim; and
(g) that the extra judicial confession being weakest type of evidence, the appellant could not be convicted upon that evidence.
10. On the other hand, learned counsel for Mst. Sardaran, mother of the informant and the learned counsel appearing on behalf of learned Additional Prosecutor General have supported the conviction.
11. The arguments of the learned counsel, scrutiny of facts and evidence have brought us to conclude that an innocent person has been involved in the occurrence, who needs to be acquitted honourably from the charge of commission of alleged offence. As to why we have decided so, the reasons are noted below:---
(i) The first report conveyed to Muhammad Abdullah, A..S.-I., on the basis of which formal F.I.R. Was registered, was in fact a prompt report, which was got recorded by Ghulam Farid without any loss of time at about 2-00 a.m. (mid night). In the aforesaid report, Muhammad Akbar and Muhammad Ashraf were shown as the real intruders into the house, while Muhammad Akbar was nominated as actual offender who had thrown acid upon the body of victim and had caused acid burns. In normal events, this F.I.R. Could not be considered as a pre-consulted or premeditated F.I.R. But it is astonishing that the eye-witnesses, namely, Mst. Sobia (somewhere Sofia shown), wife of victim, and Himmat Khan the father of deceased, whose presence and their statements of being eye-witnesses is admitted by the informant/victim himself, have not supported the presence and involvement of above nominated accused. Statement of Mst. Sofia recorded uncle,. Section 161 of the Cr.P.C. On 21-5-2004, the next day, had attributed the commission of the offence to unknown persons. Same was the case with statement of other witness Himmat Khan. From this fact, it transpires clearly that either informant was liar and tyrant who in spite of sufferance of burns injuries, had nominated the abovementioned accused merely on the basis of suspicion or the witnesses were concealing the truth. Whether these nominated accused were real offenders have to be carefully and completely investigated by the police which seems to have not taken any interest, and let them off due to unknown reasons.
(ii) Why statements of Mst. Sardaran and other witnesses were not recorded and why the case was not investigated by police with regard to the alleged occurrence as given out by Ghulam Farid in his statement got recorded on 20-5-2004 to A.S.-I., was telling something else, from where ircan be expressed that the investigation was not done on its proper lines and the deviation from straight line to other side in investigation was made with preplanning.##TE#
(iii) There are no cogent reasons adduced by the prosecution as to what prompted Muhammad Younus convict appellant suddenly to make confession on 4-6-2004 although this accused had remained with Ghulam Farid, victim and has been attending him in his time of pain and agony, why he had not apologized at that time, why he had waited for 4th June, 2004 to come, when there was no immediate cause for Muhammad Younus, convict appellant to proceed to the house of Ghulam Farid and to make extra-judicial confession, particularly, when Ghulam Farid was surrounded by his relatives i.e. P.W.5 to P.W.7.
(iv) We have found no sound reasons which could have instigated Muhammad Younas, convict appellant to go to commit such a heinous offence of throwing acid upon his brother-in-law, with whom the life of his sister was tied.##TE#
(v) The alleged story of illicit relations with one Mst. Bashiran of Muhammad Younus, convict appellant and the admonishing of Ghulam Farid has not been found correct by any investigator of the police and is also not convincing. There was no such evidence brought on the record with regard to Mst. Bashiran's alleged illicit relations with Muhammad Younus and the alleged arrest of Muhammad Younus having made and that at the behest of Ghulam Farid, victim, although it could be proved through documentary evidence, if this occurrence had actually happened.
(vi), The alleged witnesses of extra-judicial confession are unbelievable persons, due to their relationship and intimacy with the informant and enmity with the family of convict-appellant.
Muhammad Saeed, P.W.5 was admittedly arrested in case along with Ghulam Farid and Mst.
Sardaran, mother of Ghulam Farid, victim which was got registered by- Mst. Hamida, mother of Muhammad Younus. So, he was on inimical terms with the mother of the convict-appellant. P.W.6 Muhammad Habib was son of sister ( {{URDU TEXT}}) of Mst. Sardaran, while P.W.7 Muhammad Anwar was son-in-law ({{URDU TEXT}}) of Mst. Sardaran. Therefore, all these three alleged witnesses of extra-judicial confession were not only related with Mst. Sardaran but were also of partisan character. So, they cannot be believed. The statements of these three witnesses even have differed materially against each other while giving the details of the narration of extra-judicial confession. Muhammad Raab an independent witness of extrajudicial confession was given up by the prosecution.
(vii) There is no- other evidence which can be considered an independent corroborative piece of evidence for the alleged extra-judicial confession. It is settled law that the weakest piece of evidence has to be supported through a strong corroborative evidence; otherwise, it cannot be believed and acted upon for recording conviction and awarding death penalty or punishment of life imprisonment. There is no such supportive evidence to give the legs to prosecution to stand on its, feet brought on the record by the prosecution. Therefore, we cannot believe that this G evidence is sufficient for the conviction of Muhammad Younus, convict appellant.
(viii)As far the evidence of recovery of bucket is concerned that has been found to be an incredible part of evidence also as the bucket was admittedly and allegedly found in a pond, visited by public and situated on a thoroughfare, having no signs of acid. No report for the detection of acid even from any chemical examiner was obtained. Therefore, this last evidence was also of no use for, the prosecution to record conviction of Muhammad Younus, appellant.
(ix) Prosecution has failed to bring on record affidavit of Ghulam Farid, victim, by which he had exonerated Muhammad Akbar and Muhammad Ashraf, the original nominated accused of the occurrence and had implicated Muhammad Younus, convict appellant as his offender. In the same, way, there is no supplementary statement signed by the victim having been found on the record against the convict-appellant.
11. For what we have discussed above, we cannot maintain the sentence of Muhammad Younus as awarded by learned trial Court and set aside the impugned judgment dated 24-11-2005, passed by the learned Judge, Anti-Terrorism Court, Bahaw.Alpur by accepting this appeal, and acquit Muhammad Younus, convict appellant honourably from the charges. He be released forthwith, if not required in any other case.##TE#