' MUHAMMAD FARRUKH MAHMUD, J.---Iftikhar Ahmad, Muhammad Yaqoob and Muhammad Khan were tried by the learned Additional Sessions Judge, Depalpur, in case F.I.R. No,59 registered at P.S. Haveli Lakha on 3-2-2000 for offences u/s 302/34, P.P.C. However, after the conclusion of trial, in their statements under section 342, Cr.P.C. Iftikhar Ahmad and Muhammad Khan, accused, claimed to be minors and during inquiry they were got medically examined and only Muhammad Khan was found to be minor at the time of occurrence, so his case was separated from Iftikhar Ahmad .And Muhammad Yaqoob. Vide judgment dated 13-3-2002 the learned trial Court convicted Iftikhar Ahmad and Muhammad Yaqoob for offence under section 302(b)/34, P.P.C. Each and sentenced each of them to death plus payment of Rs,1,00,000 each.
2. Both Iftikhar Ahmad and Muhammad Yaqoob, convicts/appellants, have questioned the legality of their conviction and sentence by filing the instant appeal. Murder Reference No,195 of 2002 seeking confirmation or otherwise of death sentence has also been placed before us. We propose to decide both these matters through this judgment.
3. Briefly the facts of the prosecution case as gleaned by F.I.R. Exh.P.C. Recorded by Shah Nawaz, A.S-I./P.W.6, at the instance of Muhammad Sharif, complainant/P.W.4, are that Muhammad Yasin/P.W.6, son of the complainant, worked as medical practitioner in his own shop at Bawa Chak, while his other son Shaukat Ali ran a medical store and P.C.O. In the adjacent shop. Both the brothers used to work at the shops from morning till 9-00 p.m. On 2-2-2000 at about 8-30 p.m. The complainant went to his sons. Both the brothers after a short-while locked their respective shops.
Shaukat Ali deceased asked his father/complainant and brother/P.W. To go to home, while he would return on a bicycle after purchasing an electric bulb. When the complainant and his son Yasin had just passed near the graveyard of Chak Bawa, Shaukat Ali also joined them on a bicycle.
He was asked to go home on the bicycle. When Shaukat Ali had covered some distance, the P.Ws.
Heard Lalkara that Shaukat All had come and that he should not go alive. Yasin had a torch with him. In the light of torch, the P.Ws. Saw three unknown persons of average built, 5 feet 7/8 inches height dressed in Shalwar Qameez. One was armed with a gun, while the other two were armed with daggers. The accused who was armed with gun threatened the P.Ws. With dire consequences in case they came forward. The other two accused started causing blows with their respective daggers, hitting Shaukat Ali on his abdomen, back, and arms, in view whereof Shaukat Ali fell down.
Then the accused caused a blow with the dagger on the neck of Shaukat Ali. Due to fear the P.Ws.
Rushed to their house and raised alarm. Then the P.Ws. Along with many co-villagers came at the spot. Shaukat All had succumbed to the injuries and the accused had run away from the scene of occurrence. The accused had committed the murder of the deceased for special reasons. The complainant had no enmity with any one. The complainant along with co-villagers had been searching for the accused the whole night.
4. On 3-2-2000 the investigation of the case was entrusted to Noor Ahmad, S.-I./P.W.14. On the same date at 6-00 a.m., the Investigating Officer/1.0. Reached the spot; prepared injury statement Exh.P.M. Inquest report Exh.P.N. Of the deceased and sent the dead body for postmortem examination. He collected blood stained earth from the spot and sealed the same into parcel vide memo. Exh.P.D. He took into possession a Nain Chakoo P.6 from the spot through memo. Exh.P.E. The I.O. Prepared the rough site plan of the place of occurrence Exh.P.P. He also got prepared its scaled site plan Exh.P.H. From Allah Yar Patwari/P.W.6. On 4-2-2000 the investigation was taken over by Saad Ullah Khan Niazi, retired inspector/P.W.17. On the same date, the I.O. Recorded the statements of Muhammad Yar/P.W.11 and Maqsood and on the basis of those statements, he arrested Iftikhar appellant on 4-3-2000 and on 7-3-2000 got conducted identification parade. On 31-3-2000 Iftikhar, while in custody, led to the recovery of blood stained Chhuri P.5 which was taken into possession vide memo. Exh.P.B. On 25-10-2000 the investigation of the case was taken over by Mian Khan, Inspector/P.W.16. On the direction of A.S.P., the I.O. Arrested Muhammad Khan and Yaqoob on 6-11-2000. On 16-11-2000 Muhammad Khan led to the recovery of .12 bore gun P.8 along with three cartridges P.9/1-3 which were taken into possession through memo. Exh.P.G. After completion of investigation, both the appellants along with Yaqoob/juvenile (whose case, as noted earlier, was separated from the appellants) were sent up to face trial.
5. To substantiate its version at the trial, prosecution produced seventeen witnesses. After tendering in evidence the reports of Chemical Examiner Exh.P.R.,P.S. And Serologist Exh. P.T.,P.U. , the prosecution closed its side.
6. In their statements recorded under section 342, Cr.P.C., both the appellants pleaded their innocence and false implication. Iftikhar Ahmad appellant stated as under:--- ' "The P.Ws. Are father and son inter se and are inimical towards me, therefore, they have falsely deposed against me. As far as other P.Ws. Regarding the recovery etc. Are concerned, they are also friends and relatives of the complainant Muhammad Sharif, therefore, they have deposed against me. I am innocent. Actually it was an unseen occurrence. I and my co-accused are residents of Chak Bawa which is near to Chak Breet, the resident village of complainant party, Shaukat deceased was running a medical store and I was his employee as I was a student at that time and being poor person I was working with the deceased to carry on my education. Shaukat Ali deceased finished my services about four months before the occurrence as deceased had levelled allegation of theft of medicines. I, my co-accused and the complainant party being the resident of same place are well known to each other, as we are living in Chak Bawa since long. My father and other relatives are cobblers and the complainant party used to get prepared the shoes from us. I along with my co-accused have been falsely involved in this case due to suspicion."
' Iftikhar Ahmad also made his statement under section 340(2), Cr.P.C. He also examined Khalid Khan Lodhi, Headmaster, Government High School No,1 Haveli Lakha, as D.W.1, who testified school leaving certificate Exh.P.H., wherein the date of birth of Iftikhar Ahmad is shown as 28-2-1986.
Muhammad Yaqoob appellant neither appeared as his own witness under section 340(2), Cr.P.C.
Nor did he produce any witness in defence.
7. Learned counsel for the appellant submits that it was an unwitnessed occurrence; that both the P.Ws. Were not only related to the deceased but were also chance witnesses; that they could not plausibly explain their presence at the time of occurrence; that the unexplained inordinate delay in lodging the F.I.R. Indicates that it was an unwitnessed occurrence; that the whole case was fabricated on the basis of strong suspicions against Iftikhar appellant; that the identification parade had rio value, as Iftikhar and other accused (who was his brother) resided in the Chak where the deceased Muhammad Yasin P.W. Ran shops; that the prosecution miserably failed to establish any motive behind the occurrence against the appellant; and that the prosecution case was replete with doubts.
8. On the other hand, learned Additional Prosecutor General for the State submits that the eye- witnesses correctly identified Iftikhar during identification parade; that they had no previous to rope in the appellant in a false case; that the ocular account was fully supported by the medical evidence and corroborated by the recoveries. He, however, states that evidence of extra judicial confession against Muhammad Yaqoob was not admissible, as the confession was made jointly, so he does not support the impugned judgment to the extent of Muhammad Yaqoob-appellant.
Defends the judgment passed by the learned trial Court to the extent of Iftikharappellant.
9. We have heard the learned counsel for the parties and have also perused the record of the case.
10. Undeniably, the occurrence took place in the dark of the night, while Shaukat Ali deceased was going ahead of his father Muhammad Sharif/P.W.4 and brother Muhammad Yasin/P.W.5 on a bicycle. Distance between the deceased and the P.Ws. Was about' 15/20 Karms (75/100 feet). The only source of light, according to P.Ws., was a torch which was being held by Muhammad Yasin and which was switched on only after hearing the Lalkara of the accused, otherwise both the P.Ws.
Were on their way without switching on the torch. The place of occurrence was in between the shop of the deceased situated in Chak Bawa and the house of the complainant in Mauza Breet. The distance between the place of occurrence and the house of the complainant, according to the complainant himself, was 1-1/4 mile and it took 45 minutes in going from the spot to the house of the complainant and returning. On the fateful night the complainant per chance went to Chak Bawa where Shaukat Ali deceased and Muhammad Yaseen P.W. Had shops. Yaseen used to work as medical practitioner, while Shaukat Ali was running a medical store and P.C.O. Both the brothers used to work from morning till 9-00 p.m. After the arrival of the complainant, Shaukat Ali and Muhammad Yaseen closed their shops. Yaseen and complainant started towards their house, while Shaukat Ali told that he would go to the house on a bicycle after purchasing an electric bulb.
Shaukat Ali later on_ joined the P.Ws. Who asked him to carry on the bicycle and for that reason Shaukat Ali went ahead of the two P.Ws. After covering some distance, the P.Ws. Heard Lalkara that Shaukat Ali should not be spared. Yaseen switched on the torch and in the light of the torch the P.Ws. Saw three accused, one of whom was armed with a gun, while the others were armed with daggers. The accused who were armed with daggers inflicted repeated blows on the person of Shaukat Ali, who fell down. Thereafter the accused gave dagger blow on the neck of the deceased.
Both the P.Ws. Due to fear ran towards their house and returned in the company of co-villagers and discovered that Shaukat Ali had lost his life. It does not appeal to reason that real father and real brother would leave Shaukat Ali while he was critically wounded and B run towards their house instead of taking any step to save the life of the deceased. The reason advanced by the P.Ws. For not interfering was that the accused threatened them with dire consequences but is no body's case that the accused who were not previously known to the P.Ws. Had fired at the P.Ws. Or had tried to injure the P.Ws. Both the P.Ws. Stated that it took forty five minutes for going to the house from the spot and returning. It is hard to believe that a father and a brother would leave Shaukat Ali, who was critically wounded, unattended for full forty five minutes. The place of occurrence was a deserted place near a graveyard and there was likelihood that animals might cause damage to the body. Not only this, the P.Ws. Did not report the matter to the police till 5-20 a.m. i.e, more than eight hours. According to P.W.5, the complainant along with other villagers had been searching for the accused. It was not a case of theft of cattle where the villagers form a Wahar party to follow the thieves in hope of reovery of their cattle from them. In the instant case, a human had lost his life.
The assailants had disappeared in the darkness of night. They were previously not, known to the complainant and P.W. Yaseen. So far whom they were searching. This inordinate delay in lodging the F.I.R. Which remained unexplained and the above noted circumstances make it manifest that the D P.Ws. Were not present at the time of occurrence.
11. As far as identification parade is concerned, it has no evidentiary value for many reasons: Firstly, millions of citizens would qualify according to the description of the accused given in the F.I.R.
Secondly, Iftikhar and other appellant, who were cobblers by caste, lived in Chak Bawa where the deceased and Yaseen P. W. Had shops. Thirdly, Noor Ahmad, S.-I./P. W. 14 , who investigated the case soon after the registration, stated before the learned trial Court that he had gone to Chak Bawa in search of the accused on the first day and heard from the complainant that Iftikhar appellant had been working in the shop of the deceased. Fourthly, Mian Khan, S.H.O./P.W.16, also stated that Iftikhar was nephew and brother of the rest of the accused and the house of the accused was shown to him by the complainant himself. Fifthly, P.W.13 Riaz-ud-Din, Judicial Magistrate, during cross-examination admitted that he did not record the ages of the participants in the identification parade which was necessary because Iftikhar was a teenager. It may be mentioned here that the statement of Iftikhar under section 342, Cr.P.C. Was recorded on 1-2-2002 after about two years of the occurrence, and Iftikhar mentioned his age as fifteen years, while the Court observed that by appearance he looked to be twenty-one years of age. Thus, even according to the observation of the learned trial Court, the appellant was about nineteen years of age at the time of occurrence. Sixthly,. The Magistrate also stated before the learned trial Court that the proceedings were sealed in an envelope. Thereafter the S.H.O. Applied for a copy of the proceedings.
' Pursuant to his application, the envelope was opened and after furnishing the requisite copy to the S.H.O., he re-sealed the proceedings and a certificate to that effect was given by him. During cross-examination, the Magistrate conceded that the envelope was not sealed and he did not remember that the accused had moved an application before him at the time of identification parade and the said application was not with the identification parade on that day. However, he denied the suggestion that during the process of opening and re-sealing, the applicatin moved by the appellant was removed in order to favour the prosecution. Seventhly, and most importantly, the P.Ws. Had only a glimpse of the accused in torch light. No distinguishing features of any of the accused were described in the F.I.R. So it E was virtually impossible to identify the accused.
12. On 5-11-2000 supplementary statement of Muhammad Sharif complainant was recorded, wherein he stated that he suspected that two accused at large were Muhammad Yaqoob and Muhammad Khan. Without coming across the accused and identifying them how could the complainant say that appellant Iftikhar was accompanied by Muhammad Yaqoob and Muhammad Khan. The investigation of the case was entrusted to Saad Ullah Khan Niazi/P.W.17 on 4-2-2000. On that day he inspected the spot and found a Nain Chakoo (hereinafter to be referred as Karate knife). On the same date, he recorded the statements of Muhammad Yar/P.W.11 and one Maqsood Ahmad, who informed him that the Karate Knife belonged to Iftikhar appellant. Right from 4-2-2000 because of the discovery of karate knife suspicion was laid against Iftikhar and the P.Ws, knew about it. Ironically, the prosecution failed to prove that Karate knife which was allegedly found lying on the spot belonged to Iftikhar. Muhammad Yar/P.W.11 admitted that no name or any other particular identification F mark was available on the Karate knife and that the said knife was of common pattern and available in the market. He further stated that no licence was required to purchase the Chakoo and that he did not know how many Chakoos were purchased by their instructor. The basis of the suspicion was that according to Muhammad Yar, he had been playing games of Karate with Iftikhar. He made improvement in his statement before the learned trial Court by stating that he along with Iftikhar used to learn Karate and that the handle of the recovered Chakoo was black. He was duly confronted with his earlier statement recorded under section 161, Cr.P.C. Perusal of recovery memo. Exh.P.E. Reveals that with different ink it was inserted in the memo.
That handles of the Chakoo were black. P. W. 14 Noor Ahmad/S.-I. Conceded that in column Nos.22 and 23 of the inquest report (Exh.P.N.), the presence of Chakoo was not mentioned. Undeniably, the Chakoo was not blood stained and no finger prints were obtained to match the same with the finger prints of Iftikhar.
13. As regards the story of extra judicial confession of Muhammad Yaqoob, G the learned Additional Prosecutor General has rightly conceded that the same was inadmissible, as, according to earlier statement of Muhammad Bashir/P.W.10, the confession was made jointly by the accused.
Furthermore, none of the witnesses tried to apprehend the confessing accused nor did they report the matter to the police immediately and their statements were recorded one day after the alleged confession was made. Muhammad Khan was also of young age. The efforts of compromise in normal circumstances, if any, would be made by their parents. Moreover there was no compelling evidence against them to make confession H after 8/9 months of the occurrence. It is in evidence that according to A.S.P. , Iftikhar who had slender body, could not commit the murder alone and must have been accompanied by the other accused. The relevant portion of statement of Mian Khan, S.H.O./P.W.16, may be referred, wherein he stated that on 25-10-2000 the investigation was entrusted to him and A.S.P. Had directed him to arrest Muhammad Khan and Muhammad Yaqoob in the case. On 5-11-2000 the complainant and his witnesses appeared before him and on 6-11- 2000 on the basis of extra judicial confession he arrested both the accused but no reliance can be placed on this fabricated piece of evidence.
14. As far as medical evidence is concerned, it only narrates the cause of I death and does not lead to the assailant.
15. A blood stained Churri was shown to have been recovered at the instance of Iftikhar appellant on 31-3-2000. Iftikhar was arrested on 4-3-2000 i.e, after a month of occurrence. He could easily destroy the weapon meanwhile; Furthermore, no independent evidence was produced to prove the recovery of Churri. Recovery of Churri was also shown to have been effected at the instance of Muhammad Yaqoob appellant. However, the said recovery was of no consequence, as the Churri was not blood stained. Needless to mention here that the evidence of recovery of weapons is only corroboratory in nature and the mere recovery of weapons cannot be made basis for conviction.
16. The complainant tried to carve out the story of motive before the learned trial Court by stating that accused Iftikhar informed him that the deceased had teased his Fiance. However, P.W.5'conceded that his brother never went to Kausar Bibi nor Kausar Bibi ever visited their shops and that Kausar Bibi was resident of Basti Iqbal Nagar. The fact remains that there is no evidence on the record that Iftikhar was engaged with Kausar Bibi. The information of the P.Ws. Is based on hearsay alone. The complainant did not state when did Iftikhar inform him about his engagement with Kausar. Iftikhar appellant appeared in his defence and made his statement under section 340(2), Cr.P.C., wherein he stated on oath that he had been working in the shop of the deceased in order to meet with his educational expenses. He further stated that four months prior to the occurrence he was dismissed by the deceased after levelling charge of theft of medicines against him.
17. After going through the entire evidence, we are of the opinion that the case was woven against Iftikhar merely on the suspicion after the discovery of Karate knife from the spot. Suspicion however strong it may be cannot take the shape of proof. The prosecution case is replete with doubts.
Accordingly, this appeal is allowed and the judgment passed by the learned trial Court is set aside.
The appellants are acquitted of all the charges and would be released forthwith, if not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative.