' MUHAMMAD AHSAN BHOON, J.--- This appeal is directed against the judgment, dated 25-10-2005 passed by the learned Additional Sessions Judge/Judge Special Court under the Juvenile Justice System Ordinance, 2000, Gujrat whereby Babar Taj appellant was convicted under section 302(b), P.P.C. Read with section 12 of the Juvenile Justice System Ordinance, 2000 and sentenced to imprisonment for life with a direction to pay Rs,50,000 as compensation to the legal heirs of the deceased and in default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C.
Was extended to the appellant.
2. As per F.I.R. (Exh.P.A./1) brief facts of the case as narrated by complainant Nazir Ahmad (P.W.1) are that he along with Abdur Razzaq (P.W.13) resident of Chakoori Bhilowal had come to the house of their brother Muhammad Ashraf on the night of 21/22-8-2003 to see off their nephew Iftikhar Ashraf son of Muhammad Ashraf resident of Mohallah Faizabad Nai. Abadi Jalalpur Jattan as he had to go to Kuwait on 22-8-2003. At about 9-30 p.m. The complainant along with his said nephew, Balqees Begum (P.W.6), Abdur Razzaq, Haji Safdar Hussain and other family members were sitting in the courtyard of the house and talking. Meanwhile someone knocked at the outer door and Messrs Shahzad alias Babbi son of Muhammad Aslam caste Deendar, resident of Mohallah Imranpura and Shahzad alias Tipu son of unknown, caste Muslim Sheikh resident of Mohallah Faizabad, Nai Abadi Jalalpur Jattan entered the house and Iftikhar Ashraf said that they were his friends and had come to see him. Iftikhar Ashraf went outside along with them. On this complainant and mother of Iftikhar Ashraf came outside and saw that in the street Babar appellant along with three unknown persons was present who took Iftikhar Ashraf nephew of the complainant along with them towards eastern side. The complainant and others after talking slept and when they woke up in morning other of Iftikhar Ashraf told them that Iftikhar Ashraf had not returned since night and she asked them for his search. On this, complainant along with mother of Iftikhar Ashraf and others started search. During search at about 5-15 a.m. They found the dead body of Iftikhar Ashraf smeared in blood at a distance of 500/600 meters towards eastern side of his house at an open place.
3. The motive behind the occurrence was that a few days before the occurrence a quarrel had taken place between Shahzad alias Babbi etc. And Iftikhar Ashraf nephew of the complainant. The same was got compromised by the respectables of Mohallah. Due to this grudge, the accused Shahzad alias Babbi etc. Committed murder of Iftikhar Ashraf.
4. After completion of investigation, the challan was submitted in Court. As the accused was declared juvenile, so he was tried by the learned Additional Sessions Judge/Judge Special Court, Juvenile Justice System Ordinance, 2000, Gujrat whereas co-accused Mudassar Shahzad alias Babbi Shahzad alias Puppu were tried separately by the ordinary Court and they were acquitted.
5. I have heard the learned counsel for the parties and perused the record.
6.The occurrence in this case took place on the night between 21/22-8-2003. Statement (Exh.P.A.) of complainant Nazir Ahmad (P.W.1) got recorded by Muhammad Arif, S.-I. P.W. (not examined) and on the basis of that statement formal F.I.R. (Exh.P.A./1) was registered with Police Station Saddar Jalalpur Jattan District Gujrat by Muhammad S.-I. (P.W.11). Nazir Ahmed (P.W.1) who is paternal- uncle of the deceased and is the complainant of case, is also witness of last-seen of deceased in the company of the accused. He has also given the details of motive. Sabar Hussain (P.W.2)
Moharrir kept -in Malkhana blood-stained earth and two crime-empties of .30 bore pistol and thereafter he handed over the same to Muhammad Siddique P.W.3 for onward transmission of above said articles to Chemical Examiner and Forensic Science Laboratory. Muhammad Siddique (P.W.3) deposed about the deposit of blood-stained earth to the office of Chemical Examiner. He also deposed about the deposit of two crime-empties on 16-9-2003 and thereafter a parcel of .30 bore pistol on 19-10-2003 in the office of Forensic Science Laboratory. Muhammad Javed (P.W.3) escorted the dead body to the hospital and received last-worn clothes of the deceased. Abdul Rehman (P.W.5) who is real maternal-uncle of the deceased has narrated about the evidence of extra-judicial confession allegedly made by the accused Mudassar and appellant Babar Taj on 24- 8-2003. Mother of the deceased namely Bilqees Begum (P.W.6) has also deposed in line with P.W.1 narrating about the version of last-seen of deceased with the accused. Dr. Arif Nazir (P.W.7) conducted autopsy of deceased Iftikhar Ashraf on 22-8-2003 and he found 15 injuries on his person. He opined that all the injuries were ante-mortem and caused by fire-arm weapons. Injuries Nos.1 to 6 and 9 were sufficient to cause death by causing trauma to vital organs. According to him the time between injuries and death was within few minutes to 1/2 hour whereas time between death and post-mortem was 12 to 20 hours. He verified the post-mortem report (Exh.P.C.).
Muhammad Akram (P.W.8) another paternal-uncle of deceased identified the dead body.
Muhammad Aslam (P.W.9) another paternal-uncle of deceased deposed in line with P.W.5 about the narration of extra-judicial confession. Akhtar Naqaash (P.W.10) Draftsman proved the site plan prepared by him. Muhammad Anwar S.-I. (P.W.11) was the scribe of F.I.R. And he also verified the investigation conducted by Muhammad Arif, S.-I. Cognizant of his handwriting and signatures. Haji Ehsan Elahi (P.W.12) deposed about the collection of blood-stained earth vide recovery memo.
(Exh.P.H.) and collection of seven empties of .30 bore pistol (P.4/1-7) which were taken into possession through memo. (Exh.P.J.) Abdul Razzaq (P.W.13) deposed about the recovery of pistol .30 bore P.5 along with 5 live bullets P.6 effected at the behest of appellant which were taken into possession through recovery memo. Exh.P.L. Statement of accused Babar Taj was recorded under section 342, Cr.P.C. On 13-7-2005 and thereafter on conclusion of trial, the learned trial. Court convicted and sentenced him as mentioned in para.l.
7. After hearing learned counsel for the parties and perusing the record, I find that admittedly it is an unseen occurrence. None of the P.Ws. Was aware about death of Iftikhar Ashraf (deceased).
P.W.1 complainant is real paternal-uncle of the deceased and P.W.6 Mst. Balqees Bibi is real mother of the deceased and they are both witnesses of last seen of deceased with the accused but their evidence was disbelieved qua the three acquitted co-accused Mudassar, Shahzad alias A Babbi and Shahzad alias Tipu. It is worth-mentioning that according to F.I.R. The above named acquitted co-accused called the deceased out of his house but they were acquitted. Another aspect of the case is that the complainant while changing her version of F.I.R. Later on nominated co-accused Shahzad through a supplementary statement but he was also acquitted, so the evidence of last seen in this scenario cannot be believed having no intrinsic value.
8. The evidence of extra-judicial confession in the shape of P.W.5 Abdul Rehman real maternal- uncle of the deceased and P.W.9 Muhammad Aslam, paternal-uncle of the deceased also seems to be improbable and unnatural. Firstly according to the prosecution evidence appellant along with his co-accused Madassar came to the P.Ws. On the day of "Qul" i,e, the third day of death of the deceased and they made extra-judicial confession when both the witnesses were sitting on B "Phoori" and the only detail of extra-judicial confession of Mudassar was given by the P.Ws. Before the learned trial Court whereas only two sentences were narrated by the P. Ws. that the accused/appellants made confession in the same manner as by his co-accused Mudassar. This would show that there is nothing available on record as far as the extrajudicial confession of appellant is concerned that he made any statement because any fact heard from the mouth of the appellant by the P.Ws. Cannot be taken as a piece of evidence if the same has not been narrated before the trial Court, appellant could not be convicted only on the C ground that co- accused gave the details of the confession and appellant stated in same lines as statement of acquitted co-accused at any stretch of imagination cannot be used against the appellant. Even joint extrajudicial confession made by the appellant along with his co-accused D Muddassar as alleged by the prosecution has no sanctity in the eyes of law. It is settled proposition of law that extra-judicial confession is the weakest type of evidence and it should be confidence-inspiring and appealing to a person of ordinary prudence being based on reliable material, which is missing in the instant case. Therefore, I disbelieve the evidence of extra-judicial confession.
9. Motive was attributed to co-accused Shahzad alias Babbi who had already been acquitted and the appellant had frothing to do with the alleged motive so there is no need to dilate upon the question of motive further.
10. As far as recovery of crime-empties, and allegedly recovered pistol P.5 is concerned, it can be seen that the appellant was arrested in the case on 12-9-2003 and the empties were sent to the office of Chemical Examiner on 16-9-2003 as deposited by Muhammad Siddique P.W.3, and whereafter pistol was sent on 21-9-2003 and the report of Forensic Science Laboratory was found positive. The report of Forensic Science Laboratory is of no consequence when the empties were sent to the office of Forensic Science Laboratory after the arrest of the accused because there was no impediment or hindrance with the prosecution to send the same soon after recovery on the day of lodging of F.I.R. i,e, 22-8-2003.
11. In case of circumstantial evidence like instant one the chain of evidence should be in a geometrical progression touching from one side to the dead body whereas from the other side it should touch to the neck of the accused in the shape of motive, last-seen evidence, recovery of dead body, extra-judicial confession, pointing of place of occurrence by the accused and recovery of weapon of offence if any, and if one ring (ingredient) of chain is missing then whole evidence would be discarded and prosecution case would fall on the ground. In the present case even there is no evidence that the appellant or any other accused pointed out the place of dead body of the deceased.
12. In the above backdrop, I conclude that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. Resultantly, this appeal is allowed and the conviction and sentence imposed upon the appellant vide judgment dated 25-10-2005 passed by the learned Additional Sessions Judge/Judge, Special Court under the Juvenile Justice System, 2000, Gujrat is set aside and the appellant is acquitted of the charge. The appellant is already on bail. Sureties stand discharged.