' RUSTAM ALI MALIK, J. Through this judgment we intend to dispose of Criminal Appeal No,1214 of 2000 as well as Murder Reference No,533 of 2000, both arising out of the judgment dated 4-8-2000 passed by the learned sessions Judge, Faisalabad and whereby he had convicted the appellant under section 302 (b), P.P.C. And had sentenced him to death as Ta'zir and had also directed him to pay an amount of Rs,1,00,000 to the legal heirs of the deceased as compensation and in case of default in payment of compensation to undergo S.I for six months.
2. The case against the accused/ appellant is based on F.I.R. No,123/99 registered in Police Station Thikriwala, district Faisalabad under section 302/34, P.P.C. The formal F.I.R. Exh.P.L was registered on the basis of the statement Exh.P.F of Muhammad Yasin complainant (P.W.6) wherein he had stated that he is a Teacher in Government High School, Chak No,69/J.B while his son Shahid Yasin was an F.A student of Government College, Samanabad, Faisalabad and his examination was to commence on 28th of April (1999). About one and- a half months ago he had reached home, on being freed from the College. He used to sleep in a separate room of the house after his study. On the night occurrence, around 8/9 p.m, he went out of the house while all other inmates of the house went to sleep. On 6-3-1999, the complainant was informed by his nephew Asif son of Yousaf that the dead body of Shahid Yasin was lying in a ditch towards the eastern side of the village and thereupon the complainant along with his nephew Asif and brother Muhammad Yousaf (P.W.9) reached the sport where a. Number of residents of the village were already present. The dead body of Shahid Yasin was lying there and there was a wound on the left side of his head while there were also being ligature marks around his neck and his tongue had protruded out while his head, face and chest had been burnt.
3. In the F.I.R. It was also stated that Shahid Yasin deceased was having `relations' with Mst. Erum, the daughter of Maqbool Ahmad son of Muhammad Yaqoob and 6/7 months prior to the occurrence the complainant had asked Maqbool Ahmad and his wife to keep their daughter under control and thereupon Maqbool Ahmad had asked him to keep his own son under control and had threatened that he will not be left alive. The complainant had taken .Shahid Yasin to his maternal uncle's house in Ghalla Mandi, Faisalabad for the purposes of education and for the past 1 1/2 months he was living in his house ( in the village) for preparation for his examination. The complainant suspected that on account of his relations with Mst. Erum, Maqbool Ahmad and his son Zeeshan, etc. Had killed Shahid. Yasin, had burnt his head and face and had thrown his dead body in the ditchers.
4. After leaving Muhammad Yousaf and Asif, P.Ws. Near the dead body of the deceased, the complainant left for the police station. When he reached Adda Thikriwala, Mansab Ali, S.-I. Met him and who recorded his statement at 7-30 a.m and which was then sent to the police station for the registration of the formal F.I.R.
5. As a result of the investigation, the ehallan in this case was submitted against Ali Akbar alias Pappu accused and who pleaded not guilty and the prosecution was thus asked to produce its evidence.
6. In this case the prosecution has examined as many as 13 P.Ws. Of them, P.W.11 is Manasab Ali, S.-I.
Who on 6-3-1999, was present at Adda Thikriwala when Muhammad Yasin complainant came there and he recorded his statement Exh. P. F and thereafter he sent the same to Police Station Thikriwala for registration of the case and on the basis of which formal F.I.R. Exh. P.L was recorded.
Thereafter he accompanied the complainant to the place of occurrence where the dead body of the deceased was lying, He prepared the injury statement Exh.PB and the inquest report Exh.P.C. He sent the dead body of the deceased for the purpose of postmortem examination. He inspected the place of occurrence and secured the blood stained earth there from and also recorded the statements of P.Ws. On 8-3-1999, the complainant produced before him woolen chadar P.3, empty Pepsi bottle P.4 and he took the same into possession. He got prepared the sites plans Exh.P.D and Exh.P.D/1 from Patwari Halqa. The investigation remained with him till 24-6-1999.
7. P.W. 12 Zafar Ali, S.-I/S.H.O. Had also partly investigated the case. On 3-7-1999, he recorded the statements of the P.Ws. In Chak No,71/J.B and the complainant produced before him the pamphlet Exh.P.J and which he took into possession vide memo Exh.P.K.
8. P.W.13 Muhammad Mumtaz, S.-I was posted as S.H.O. Police Station Thikriwala on 3-11-1999 when he arrested Ali Akbar accused from Chak No,71/J.B. According to him the accused was in possession of .7 MM rifle P.I. And five live cartridges (bullets) P.2/1-5 and which he took into possession. On the finalization of the investigation he submitted the challan.
9. P.W.1 is Dr. Arshad Masood, Demonstrator, Forensic Medicine Department, Punjab Medical College, Faisalabad, who on 6-3-1999 at 3-45 p.m had conducted the post-mortem examination of the dead body of Shahid Yasin, deceased and had found two fire-arm wounds on the same, one of which was a wound of entry while the other one was a wound of exit. In his opinion death had occurred due to injury No,1 which was sufficient to cause death in ordinary course of nature.
According to him, the injuries were ante-mortem and had been caused with fire-arm. The probable time between injuries and death was within a few minutes and between death and post- mortem examination was within 24 hours. Copy of post the post-mortem report is Exh.P.A/1 while the diagrams of injuries, are Exh.P.A/1 and P.A/2.
10. P.W.6 is Muhammad Yasin, the complainant who supported the prosecution story. However, he explained that on account of suspicion he had named Maqbool Ahmad and his son Zeeshan in the F.I.R. But during the investigation he was satisfied, that the persons named in the F.I.R. (as culprits) were innocent. He deposed that 2 Vi months after the occurrence he was checking the books of his son and from the books a phamphlet of a computer college was found and on the back of the phamphlet it was written by the deceased that he had gone to Ali Akbar accused at his instance.
However, he did not produce the said phamphlet Exh. P.J before the police but showed the phamphlet to Imran and Younas, P.Ws and they told him that on the night on occurrence they had seen Ali Akbar accused armed with a rifle going towards the eastern side of the village. He told the P.Ws. To.Contact the accused to ascertain the facts. Younas and Imran, P.Ws. Then brought Ali Akbar accused to the Baithak of Abdul Latif where 15 or 20 persons were present and who started interrogating the accused, who was avoiding to disclose the facts on one pretext or the other. While they were talking with the accused, Muhammad Shahbaz (P.W.7) along with his father came there and Shahbaz on seeing Ali Akbar stated that the accused had committed un-natural act with him and on hearing this Ali Akbar accused stated that if he is pardoned, he will tell the whole story. Then Ali Akbar accused told them that two days before the occurrence he had taken Shahbaz on a donkey cart to the fields and where he committed unnatural act with Shahbaz. In the meanwhile Shahid Yasin deceased came there. The accused told them that he begged the deceased Shahid Yasin not to disclose the said fact before anybody (about what he had seen) but he still suspected that the deceased will not remain silent. The accused further disclosed before them that he had told the deceased that on 5-3-1999 at 9-00 p.m, he will arrange a beautiful girl for him at the place of occurrence, so that he may not disclose as to what he had seen.
' The accused further told them that at 8-00 p.m he took the licenced rifle of his brother and a Pepsi bottle filled with kerosene oil to the place of occurrence and there he waited for the deceased. The accused told them that he talked with the deceased for some time and when he i.e, the deceased was looking towards the left side, he fired a shot on his head and as a result of the firearm injury the deceased fell down in the pit. The accused further told them that he waited for 5-7 minutes to ensure that the deceased had died and then he got down in the pit to ascertain whether he had died or not and then he strangulated the deceased to death with his chadar. The accused also told them that after the death of the deceased he removed his shirt and wrist watch and put the front part of his shirt on his mouth and sprinkled the kerosene oil and set the same on fire. The accused told them that then he had thrown the empty Pepsi bottle and woolen chadar in nearby killa No, 19 and that he had thrown the Shalwar at some other place and the wrist watch at an other place.
The accused had told them that he put on the shoes of the deceased and came on the metalled road and then he abandoned the shoes of the deceased and thereafter he came to his house.P.W.6 further stated that the accused then left the Punchayat on the pretext of urinating and then had run away. On 3-7-1999, he i.e, P.W.6 produced the pamphlet P.J before the 1.0 and which was taken into possession by him.
11. P.W.7 Muhammad Shahbaz is a minor witness, aged 8 years whose statement was recorded by the learned trial Court after putting certain questions to him to ascertain whether he is of mature understanding and thereafter his statement was recorded. He deposed that about a year and four months ago he was playing in the street when the .Accused asked him to accompany him to the swings and then the accused took him to his land where he removed his Shalwar and wanted to commit un-natural act with him when Teddy (Shahid Yasin) deceased came there and the accused ran away. Teddy had then abused the accused and the accused had apologized and then he i.e, Teddy deceased had accepted his apology. Thereafter Kakku accused brought him to his house on his rehree and advised him not to tell anyone about the incident.
12. P.W. 8 Muhammad Imran had seen Ali Akbar accused 1 Va years ago around 8/9 p.m living in his house and after some time he also left his house behind him for going to his Haveli to feed his cattle. The accused was ahead of him by three or four feet and was having a rifle on his shoulder and was proceeding to the eastern side of the village. This witness also deposed that 2Vi months after the occurrence, Muhammad Yasin had shown him the pamphlet Exh.P.J and it was then that they suspected the involvement of the accused (in the occurrence) and it was thereafter that he and few other persons called the accused to the Baithak of Abdul Latif Jat were Muhammad Shahbaz, P.W and his father also came and there Muhammad Shahbaz, P.W told his father that the accused had committed un-natural act with him and it was there that Ali Akbar accused disclosed the story about the occurrence (by making extra- judicial confession).
13. P.W. 10 is Muhammad Rafique who deposed that on 5-3-1999, which was a Friday, between Asar and Maghrib prayers, he and his brother Shahid Yasin, deceased were going to their house from the fields on 1 cycle and when they had gone a little ahead of the house of Ali Akbar accused, the accused came from the front side and stopped them and he inquired Shahid Yasin deceased as to where he was living and why he does not see him. It was then that Shahid Yasin deceased had told him that in the evening either he will visit him or otherwise he i.e, the accused should visit him and thereafter the deceased told the accused that he should talk about the matter with him and the accused asked the deceased to send him i.e, P.W away. Then he i.e, P.W. 10 came back to his house with the cycle and books of the deceased while the deceased and the accused talked to each other and after 20/25 minutes the deceased cam back to his house.
13- A. On 17-7-2000, the I.O. Tendered in evidence the report of the Chemical Examiner Exh. P. Q and closed the prosecution evidence.
14. On the conclusion of the prosecution evidence, the statement of the accused was record under section 342, Cr.P.C on 17-7-2000 and wherein he denied all the incriminating circumstances. In answer to the question as to why the P.Ws. Have deposed against him, the accused replied that it was because of enmity and when asked as to why the case has been made against him, he replied that the case was false and outcome of party faction. However, the accused did not produce any evidence in evidence nor did he make any statement on oath under section 340(2), Cr.P.C.
15. On the conclusion of trial, the learned trial Court convicted and sentenced the accused as aforesaid. Aggrieved of the impugned judgment dated 4-8-2000 the appellant has filed the appeal (Crl. Appeal No, 1214 of 2000) while the learned trial Court has sent -the reference (Murder Reference No, 533 of 2000) for confirmation of sentence of death awarded to the accused by the learned trial Court.
16. The learned counsel for the appellant has argued that there is no direct evidence in this case involving the accused/ appellant with the offence and admittedly there is no eye-witness account of the occurrence; that the rifle P.l was not sent to the Forensic Science Laboratory nor there is any report on record in that respect and hence the recovery of weapon of offence is without consequence. The rifle.7 MM P. 1 is stated to be the licenced rifle of the brother of the accused but there is no evidence no the effect that the accused had fired at the deceased with the same rifle; that the pamphlet Exh. P.J and the writing on its reverse side Exh. P.J/1 cannot be considered as a valid piece of evidence and the said writing on the reverse side of the pamphlet does not suggest that it was in the handwriting of the deceased but even if it be so, it does not connect the accused with the offence in any way; that the evidence regarding the extra-judicial confession of the accused is a very weak type of evidence and cannot be acted upon unless there is independent corroboration; that the statement of P.W.7 Shahbaz does not inspire confidence and there is nothing in the said statement regarding the commission of Qatl-i-Amd of the deceased by the accused although the same makes mention of an attempt to commit un-natural offence with him i.e, Shahbaz, P.W. By the accused; that the prosecution has miserably failed in this case to prove its case against the accused; that the prosecution evidence or record is replete with contradictions and inconsistencies and hence the same cannot be relied upon to record conviction against the accused and for awarding him capital sentence; that under circumstances the accused/appellant is entitled to the benefit of doubt and in consequence to acquittal.
17. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court on the grounds that there is sufficient evidence on record to warrant conviction of the accused under section 302(b), P.P.C. And although there is no eye-witness account of the occurrence available in this case, yet the motive incident as narrated by P.W.7 and also the testimony of extra-judicial confession and the statements of P.W.7 Muhammad Yasin, P.W. 10 Muhammad Rafique and P.W.8 Muhammad Imran provide sufficient evidence to connect the accused with the offence and hence the learned trial Court had rightly convicted the accused under section 302(b), P.P.C. And had correctly awarded him the sentence of death and which should be confirmed under the circumstances of the case.
18. We have carefully considered the arguments advanced from both sides. Admittedly there is no eye-witness account in this case regarding the commission of Qatl-i-Amd of the deceased by the accused. Although P.W.7 Muhammad Shahbaz claims that the accused had attempted to commit un-natural offence with him when the deceased reached there and the accused tendered apology which was accepted by the decease^ yet from the statement of P.W.7 it cannot be inferred that although the deceased had accepted the apology of the accused, still he i.e, the accused wanted to kill him for fear of disclosure of the said incident by the deceased. Although the complainant i.e, P.W.6 makes mention of finding of pamphlet P.J and has also deposed that he had shown this pamphlet to Imran and Younas, P.Ws. And who had told him that on the night of occurrence they had seen the accused Ali Akbar armed with a rifle going towards the eastern side of the village and that he had asked them to contact the accused to ascertain the facts and it was then that Younas and Imran had called him i.e, the accused to the Baithak of Abdul Latif and where the accused after some reluctance and after the arrival of Muhammad Shahbaz, P.W had made extrajudicial confession of committing qatl-i-amd of the deceased and although P.W.8 Muhammad Imran has also deposed that he had seen the accused going towards the eastern side of the village with a rifle hanging on his shoulder and although P.W.8 had also made mention of extrajudicial confession by the accused, yet the evidence of extra-judicial confession is certainly a very weak type of evidence and requires very strong corroboration before it can be relied upon for recording conviction. Admittedly the appellant was not named in the F.I.R. And his involvement in this case was the result of the belated disclosure made by P.W.8 Shahbaz (who does not make mention of Qatl-i-Amd of the deceased) and thereafter because of the alleged extra-judicial confession of the accused which is not corroborated by any other independent evidence.
19. The medical evidence in this case, in the absence of any ocular account of the occurrence, does not connect the accused with the offence. The pamphlet Exh. P.J and the writing thereon Exh. P.J/1 cannot be considered as a valid piece of evidence. The rifle allegedly recovered from the accused was not sent to the Forensic Science Laboratory and so its recovery becomes inconsequential and therefore the evidence available in this case is not sufficient to warrant conviction and the prosecution has failed to establish its case against the accused/appellant beyond reasonable doubt. Hence, the conviction recorded by the learned trial Court as well as the sentence awarded by it to the accused/appellant cannot be sustained and is liable to be set aside.
20. In view of what has been stated above, the appeal is accepted, the conviction recorded and the sentence passed by the learned trial Court against the accused under section 302(b), P.P.C. Is set aside and the accused/appellant is given the benefit of doubt and is acquitted of the charge. If not required in connection with any other case, he be set at liberty forthwith.
21. The sentence of death awarded by the learned trial Court to the accused is not confirmed.
22. Murder Reference (No,533/2000) is answered in the negative.