Muhammad Ahsan Bhoon,J--This judgment shall dispose of Crim. Appeal No, 294 of 2002 filed by Anwar Baig son of Ghulam Hussain while Criminal Revision No, 139 of 2002 filed by the petitioner- complainant for enhancement of compensation and the Murder Reference No, 447 of 2002 submitted by the learned trial Court for confirmation of sentence of death awarded to the appellant of otherwise, as all arise out of same judgment dated 6.6.2002 passed by the learned Sessions Judge, Attock, whereby he convicted the appellant under Section 449 PPC and sentenced to R.I. for ten years with fine of Rs, 10,000/- and in case of non-payment to undergo R.I. for two months. The learned trial Court vide the same judgment convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation of Rs, 2,00,000/- in default whereof to undergo R.I. for two years and in case of recovery it was ordered to be paid to the legal heirs of the deceased, in case registered vide FIR No, 198 dated 23.8.2001 offence under Section 302 PPC at Police Station, Pindigheb District Attock.
2. Prosecution story in brief is that on the night between 22/23.8.2001 complainant's son Muhammad Arif was asleep in the eastern side of courtyard while she alongwith other children was asleep in the western side of the Court yard at a distance of 10/12 paces from him. At about 6.30 a.m. she prepared tea and went to awaken her son Muhammad Arif and on moving the chadar, she found her son Muhammad Arif dead and bleeding was oozing out for his head. She alleged that some unknown persons have murdered her son during the darkness of night.
3. After spot inspection and during investigation, the accused appellant Anwar Baig was found involved in the case and challaned him in the trial Court, where charge under Sections 302/449 PPC was framed against him, who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. Statement of the accused was recorded under Section 342 Cr.P.C. in which Anwar Baig was confronted with all the incriminating material on record against him but he denied the same and on a question as to why this case against him and why the PWs. had deposed against him, he replied as under: Any deceased was my close friend. I was having visiting terms with him 9/10 days before the present occurrence Arif deceased and I saw Raees and Parveen Bibi PW in an objectionable condition. We narrated the same fact to Zaib-un-Nisa PW who was not present in the village in connection with his business. After 9/10 days of the above mentioned incident Arif was murdered in between the night 22/23-8-2001. In the morning I came to know about the murder of Arif and went towards his house and remained there till evening time. Police was also present there. Had I the accused in this case, the police must have arrested me on that day. After some time Raees and Parveen PW involved me in this case falsely so that I may not be able to tell about illicit relations in between them. They led to believe complainant and her husband Rabnawaz that I am the culprit so on their asking police involved me in this case. Raza PW is conductor with Rabnawaz PW who deposed against me due to the reason that he is subordinate to Rab Nawaz. A quarrel took place between me and Raza about a month prior to present occurrence so he deposed against Me."
4. The appellant-accused neither opted to appear as his own witnesses in disproof of allegations levelled against him as required under Section 340(2) Cr.P.C. nor did he produce defence evidence.
5. We have considered the submissions of the learned counsel for the parties and gong through the record.
6. The FIR in this case was lodged by Mst. Zaib-un-Nisa, PVC'-13, mother of the deceased, Arif.
According to which it was a case of unseen occurrence taken place between the night 22/23-8- 2001, when A the deceased while sleeping in the Courtyard of his house was found murdered. Later on, the prosecution produced Mst. Parveen Akhtar, PW -14, as an eye-witness of the alleged occurrence, who is real aunt of the deceased and sister of the complainant. According to the evidence of PW-14 the deceased Arif was asleep on cot at a distance of 10/12 paces towards east from his mother and brother and other family members and at that time she was awakened on hearing fire shot and in the meanwhile the appellant Anwar Baig passed through the cot of PW- 14 holding the pistol in his hand and he placed pistol on her aural exerted, threats to keep silence in respect to the occurrence otherwise she would also meet the same face and thereafter accused fled away from the scene of occurrence. Mst. Parveen PW-14 in her cross-examination deposed, some portion of which is re-produced below for facility of reference:- "The sun was rising in these days at about 5.00 a.m. After a little of my awakening i came to know of the murder of deceased. I did not raise any raise at the time of knowing the murder of the deceased at the hands of accused. As my sister Zaib-un-Nisa raised noise on coming to know the death of his son. I also joined her for crying."
The above quoted portion of evidence of so-called eye-witnesses has brought the true picture that in fact she also come to know about the murder of Arif when she awakened on hearing of hue and cry of her sister so her evidence is mere concoction and an after thought from its bare reading. The other important piece of evidence in this case was the evidence of extra judicial confession made by the accused appellant who appeared before Ameen Khan, PW-11. According to this witness on the day of occurrence at 9.00 a.m. the appellant accused confessed the killing of Arif deceased before him and this witness admitted this fact that after making of extra-judicial confession of the accused he reached on the place of occurrence at about 9.15 a.m. and when he reached at the place of occurrence the complainant of the case Mst. Zaib-un-Nisa PW-13 was present there and thereafter she left for reporting the matter to the police. The evidence is absolutely in contradiction to the prosecution case from bare reading of FIR. If extra judicial confession was made before this PW by the accused and this witness reached at the place of occurrence prior to lodging of FIR by Mst. Zaib-un-Nisa then why the FIR was lodged against unknown person and why appellant was not nominated in the FIR. The story of FIR lodged by PW-13, evidence of extra-judicial confession, and evidence of ocular account runs counter to each other and thereafter, it seems that there is no link between any piece of evidence from the face of it, it seems mere concoction and an after thought. The only evidence, which is available on record with the prosecution, is recovery of pistol and empties from the spot, which was found wedded with each other, according to the report of Forensic Science Laboratory Exh. PS. Thereafter suggestion was put to the I.O. and other witnesses that the accused was arrested prior to 7.9.2001, which is the date of arrest shown by the Investigating Officer but that suggestion was denied by the witness. Evidence of extra-judicial confession as well as 'ocular account is of no value and has been discarded by us than mere conviction in capital punishment cannot be passed only on a single piece of evidence i,e, recovery, particularly in a case of seen occurrence. For the purpose of conviction and sentence in a case of capital punishment the evidence must come through unimpeachable source and Court has to see intrinsic value of such evidence with strong corroboration, which is lacking in the present case. We are of the considered view that this is a case of no evidence, hence the Criminal Appeal No, 294 of 2001 filed by the appellant is allowed, conviction and sentence recorded vide judgment dated 6.6.2002 by the learned Session Judge, Attock is hereby set aside and the appellant is acquitted of the charge. He is in jail. He shall be released forthwith if not required in any other case, while Criminal Revision No, 189 of 2002 filed by the petitioner co-complainant having no merit is dismissed.
Murder Reference is answered in negative.