This appeal is directed against the judgment dated 12.5.2003 rendered by the learned Additional Sessions Judge-III, Mianwali, whereby he convicted the appellant under Section 302(b) PPC and sentenced to life imprisonment. He was also directed to pay compensation of Rs, 50,000/- to the legal heirs of the deceased Abdul Waheed Khan, which ordered to be recovered as arrears of land revenue from the accused and in case of non-payment to further undergo imprisonment for a period of 6 months. Benefit of Section 382-B, Cr.P.C. was extended to him.
2. Briefly the prosecution case as contained in the FIR is that on 3.4.2002 Abdul Waheed, (deceased), brother of the complainant, went out of his house in the evening after taking his meal but did not come back upon which complainant made efforts for his search. On 4.4.2002 at 6.15 his brother Dildar Khan complainant accompanied by Zafar Khan and Gul Anar PWs found his dead body lying in an open place towards north of his Mauza Wandha. There were scratches on his both knees and signs of noose around his neck. The shalwar and sleeper of deceased were lying near his dead body. Then Dildar Khan brother of the deceased reported the occurrence and on his report, this case was registered under Section 302 PPC without nominating any one as accused.
Allah Dad S.I. recorded FIR and proceeded to the spot accompanied by Saghir Hussain Shah, Constable and some other police officials. Dildar Khan complainant then made his supplementary statement before Allah Dad S.I. wherein he showed his suspicion against Shahzad Khan, present appellant for committing the murder his brother as, according to him, deceased brother had committed unnatural offence with Shahzad Khan accused some time ago and his that action was within the knowledge of some residents of the village but neither the accused nor the deceased had brought this fact in the knowledge of their elders.
3. Allah Dad S.I. after completion of investigation challaned Shahzad Khan accused to the trial Court holding him guilty for facing the trial under Section 302 PPC. The accused applied in writing to the learned trial Court contending that he was child in the eye of law and was, therefore entitled to be tried as child under Juvenile Justice System Ordinance. The learned trial Court accepted application vide order-dated 15.8.2002, so the accused had been tried as child under Juvenile Justice System Ordinance.
4. Charge under Section 302 PPC was framed on 2.9.2002. The appellant pleaded not guilty and claimed trial. The prosecution produced as many as 12 witnesses besides the documents Exh. P.A, Exh. PA/1, Exh. PB, Exh. PB/1, Exh. PC, Exh.PD, Exh.PE, Exh.PE/1, Exh.PF, Exh. PF/1, Exh.PG, Exh. PH, Exh.PJ, Exh.
PK, Exh. PL, Exh. PM and articles P-1 to P-5. The accused was examined under Section 342 Cr.P.C. but did not opt to appear as his own witness as required under Section 340(2), Cr.P.C. nor produce defence evidence except statement of Sardar Khan (Exh.DA). The learned trial Court after hearing the learned counsel for the parties and going through the record passed the above said conviction and sentence.
5. I have heard the arguments of the learned counsel for the parties and gone through the record.
6. Admittedly, it is an unseen and blind occurrence. The dead body was found lying in an open place. The complainant in FIR stated that he had no enmity with anybody nor expressed his suspicion about any culprit to commit murder of the deceased.
7. The evidence of last seen has been furnished by Muhammad Asghar Khan PW-8 who deposed that he had seen Abdul Waheen Khan, deceased passing through the street, who was immediately followed by Shahzad Khan accused, meaning thereby that he was unable to substantiate the allegation that the deceased was in the company of the accused-appellant. This witness is real paternal cousin of the deceased and his statement is not corroborated by any other PW.
Muhammad Aslam, PW-6, paternal uncle of the deceased, whereas Rafi Ullah Khan, PW-7, first cousin of the father of the deceased appeared before the learned trial Court and deposed about extra judicial confession made by Shahzad, appellant-accused.
8. Statement of both the PWs of Extra-judicial confession is not confidence inspiring as they stated that after making extra-judicial confession the appellant Shahzad and his father went away with a promise to come back after necessary preparation for appearing before the Police but they did not come back after three hours the stipulated time fixed by them. This version introduced by these PWs does not appeal to reason on the ground that neither the accused/appellant nor his father was armed with any weapon and as to why they were allowed by these PWs to leave the place, and as to how they were not apprehended and produced before the police, who were closely related to the deceased. PW-7 stated that he went to the house of Muhammad Aslam PW-6 for the purpose of purchasing milk whereas there is no evidence that he used to purchase the milk from him previously. Another aspect, which is very important that the father of the appellant, Abdul Razaq and appellant himself made the alleged joint extra-judicial confession. It is not understandable that why the appellant-accused accompanied his father to confess the guilt before these PWs. The story narrated by PW-6 on the face of it seems to be mere concoction.
9. I may observe that it is settled proposition of law that joint extra-judicial confession is not admissible in evidence and no conviction can be based on this score alone in case of capital punishment unless the same is corroborated by independent and confidence inspiring evidence.
Even otherwise, extra-judicial confession is always considered very weak type of evidence. Both these PWs are related inter se as well as to the deceased, so their deposition is not above board and cannot be relied upon in the given circumstances of the case.
10. The alleged recovery of rope P-1 effected vide memo Exh. PE at the behest of the accused is of no significance because the same was in violation of provision of Section 103 Cr.P.C. The prosecution has given up Sardar Khan and Ajmal who were the witness regarding the purchase of rope P-1 from the shopkeeper by the appellant-accused. Neither the name of shopkeeper was disclosed before Allah Dad, I.0 (PW-12) nor his name figured in the calendar of witnesses. Record further shows that rope P-1 allegedly recovered from the appellant was not stained with human blood. The prosecution has badly failed to prove the recovery of rope P-1.
11.Dildar Khan, complainant (PW-10) stated that he made supplementary statement Exh.PF/1 wherein he deposed about the motive part of the occurrence that his brother Abdul Waheed, deceased had committed sodomy upon Shahzad Khan, accused/appellant and Shahzad Khan had taken his brother to take revenge on the pretext of again committing the offence of sodomy with each other The motive part of the prosecution story in these circumstances seems to be an afterthought and does not find favour to the prosecution.
12.The alleged occurrence, according to prosecution story, took place at 6.15 on 4.4.2002. Dr. Maqbool Mubarak appeared as PW-2 and deposed that stomach of the deceased was full of undigested food, small intestines was almost empty, which indicates that the deceased was done to death in the early hours of the night after having his dinner, that is why stomach of deceased was found with undigested food. It was not the case of the prosecution that the deceased might have taken his breakfast prior to sunrise in the month of April 2002. Evidence further show that the deceased was done to death in the early hours of the, night by some unknown culprits and even it was not possible for the accused to murder the deceased all alone on 4.4.2002. Appellant was about 15 years of old at the time of alleged occurrence, whereas the age of the deceased recorded by the Doctor at the time of postmortem examination was 18/19 years. The prosecution has failed to prove the case against the appellant beyond any shadow of doubt.
13. For what has been discussed above, I am of the confirmed view that the prosecution has failed to prove the guilt of the accused-appellant beyond any reasonable shadow of doubt. Resultantly, this appeal is allowed, conviction and sentence awarded to the appellant vide judgment dated 12.05.2003 passed by the learned trial Court is set aside and the appellant is acquitted of the charge. He is in Jail. He be set at liberty forthwith if not required in any other case.