Above titled appeal is directed against the judgment passed by District Court of Criminal Jurisdiction, Mirpur on 15-08-2005, whereby the appellant was awarded death sentence on two counts under Section 302, A.P.C. 10 years R.I under Section 324, A.P.C, Rs, 50,000/- fine under Section 337, A.P.C. and 10 years R.I under Section 457, A.P.C. while a reference was also made by the said Court for confirmation of death sentence.
2. Brief facts forming background of the appeal and the reference are that a case under Sections 302, 324 & 34, A.P.C. was registered at Police Station, Chaksawari on the complaint of Muhammad Azam. It was reported that the complainant was resident of Mithrani District Kotli and presently alongwith his family was residing in the house of Numberdar Abdul Karim situated in Ganohi District Mirpur. His son Muhammad Masood was working in fruit market Karachi. A day prior to the occurrence he called the complainant and informed him about his arrival at Ganohi Bridge in the evening and requested for his brother to come and receive him. On 26-04-2005 at about 4.00, a.m. he came home alone and asked the complainant about his brothers who told him that they had gone to receive him. The accused denied their presence at the bridge, however, told the complainant that he heard hue and cry coming from inside the hotel, upon this the father and the son came at the place of occurrence and saw the victims lying on cots. Muhammad Mansha and Muhammad Latif were dead while Muhammad Arshid was injured. The complainant lodged the report, alleging therein that some unknown persons committed the offence.
3. During investigation, Muhammad Masood was found guilty and a challan for commission of offences under Sections 302, 337, 324, 457 A.P.C. was submitted against him before District Court of Criminal Jurisdiction, Mirpur. On conclusion of the trial, the trial Court convicted the appellant vide the impugned judgment, hence this appeal and the reference.
4. Learned counsel for the convict appellant argued that the occurrence took place in late hours of the night and was not witnessed by any body. In fact unknown offenders committed the offence, the police failed to locate them and to defuse sever public pressure a story was concocted and appellant was roped in a false case. It was in the knowledge of the Investigating. Officer that the appellant came back from Karachi and dropped near the place of occurrence at about relevant time and it was easy to place the allegations on his shoulder, thus by hatching conspiracy they involved him in the case. Muhammad Arshid who received injury during the occurrence was not examined during trial. Only evidence ,brought On record against the appellant was the confessional statement recorded under Section 164, Cr.P.C. which was highly doubtful, it was an fabricated document and the signatures were obtained by using force. Even otherwise the story stated therein was not confidence inspiring. The whole case was based upon the motive that the appellant was aiming to commit dacoity but no evidence in support of the allegation was brought on record. Moreover, no independent corroborative material in support of the prosecution case was produced during trial. The trial Court failed to appreciate that the prosecution story was improbable, the witnesses miserably failed to establish guilt against the appellant, single circumstance indicating his involvement in the occurrence was not available on record. The confessional statement was fake and fabricated. A dishonest investigation was conducted by the Police to rope the appellant in a false case and his conviction in the given circumstances was not justified, therefore, by accepting the appeal he may be acquitted of the charge.
5. On the other hand it was argued by the counsel representing the complainant that the place, time of occurrence and presence of appellant at spot at the relevant time was proved and it was also corroborated by P.Ws Muhammad Mushtaq, driver and Muhammad Maroof, conductor of the bus which dropped the appellant near the place of occurrence at 2.30, a.m. on 26-04-2005. Motive was not in doubt. The appellant got recorded confessional statement according to his fret. Will and was proved by its scribe Raja Tariq Mehmood, Additional Deputy Commissioner Bhimber and was further supported by the Investigating Officer. Thus it was a reliable document. No enmity between the police and the appellant was brought on record and the question of false implication does not arise. The appellant was desperate and dangerous criminal. He committed the murder of his real brother and another. The prosecution proved its case against him beyond any doubt. The trial Court rightly appreciated the evidence on record and arrived at a correct decision. The appellant was rightly convicted and impugned judgment being correct and in accordance with law needs no interference, therefore, the appeal may be dismissed.
6. Since the appeal and reference arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.
7. I have heard the learned counsel for the parties and perused the record with great care.
8. The prosecution case was that Muhammad Masood convict-appellant was working in fruit market Karachi. He came to Lahore and stayed there for few days and while visiting Data Darbar Lahore lost his purse at the hands of pick pockets, consequently he borrowed Rs, 300/-from his cousin. On 26-04-2005 he decided to go back and informed his father that he.will arrive at Ganohi Bridge at about 2.30, a.m. and also requested to send his brothers to receive him. He travelled by Bus No, 6653-AJKF which dropped him at the destination. After leaving the bus he started moving towards the hotel and picked up a pick axe lying in the way, he noticed two persons were sleeping on a cot in Waramada of the hotel and with the intention to commit dacoity started inflicting injuries to them. He also caused injuries to other person sleeping inside the hotel. He broke the lock of a shop for the purpose but failed to find money, however, during search he identified his brothers among the injured persons and at 3.45, a.m he came to Ganohi at the R.G.O. of Ibrar Hussain and called Molvi Muhammad Iqbal to inform his father about the murder of his brother Muhammad Mansha and another. The complainant secured the information through Muhammad Munir, upon which he came at the spot and saw the dead bodies and Muhammad Arshid lying injured on cots.
9. In support of the above mentioned story, the prosecution produced the evidence of recovery of weapon of offence from the shop of P.W Qurban Hussain, blood-stained clay seized from the place of occurrence, confessional statement of the convict-appellant recorded under Section 164, Cr.P.0 and also the evidence of Driver and conductor of the bus which dropped the convict-appellant near the place of occurrence. The prosecution also examined Ibrar Hussain owner of the P.C.O., Molvi Muhammad Iqbal and Munir Hussain who informed the complainant about the incident in support of the case. The trial Court by putting reliance on confessional statement and other circumstantial evidence, convicted the appellant and awarded him two time death sentence for the murders of Muhammad Mansha and Muhammad Latif and also sentenced him to 10 years rigorous imprisonment and Rs,50,000/- Daman for causing injuries to Muhammad Arshid.
10.It is important to state that Muhammad Arshid who allegedly received injuries during the occurrence was cited as eyewitness in the challan but during trial he was given up, thus there was no eye witness of the occurrence. The whole prosecution case was based upon retracted confessional statement which shows that the appellant was aiming to commit dacoity and committed the offence with pick-axe recovered from the shop of Qurban Hussain.
11.P.W. Nasrullah Khan claimed that the convict-appellant was arrested on 14-04-2005 and on the following day he confessed about the occurrence upon which he handed him over to the Investigating Officer. During cross-examination the witness deposed that he was not present at the time the statement was recorded while P.W. Investigating Officer did not utter a word about the confessional statement of the convict appellant recorded under Section 164, Cr.P.C. P.W., Raja Tariq Mehmood, Additional Deputy Commissioner General who recorded the statement deposed that on 24-5-2005 the convict-appellant was brought before him by the Police with the request to record his confession and he was sent to judicial lock up by him to rethink before making confessional statement. On 25-05-2005 he again was produced and Ex.PW was recorded. Surprisingly no application by the Investigating Officer or any evidence showing that the convict-appellant voluntarily got recorded the confessional statement was available on record. I am unable to understand that in absence of any request by the Police or by the convict-appellant, how the Magistrate summoned him from the judicial lock-up for the, purpose. No proof establishing production of the convict-appellant from District Jail Mirpur on 25-05-2005 was brought on record by the prosecution. An interesting aspect of the episode was that Ex.PW does not indicate in which Court the convict-appellant appeared and got recorded his confessional statement. He was not identified by any body in the Court of Magistrate. Moreover, neither his identity card nor its number was mentioned in it. Besides P.W. Nasrullah Khan claimed that the convict-appellant confessed about the occurrence on 14-05-2005 which shows that a considerable unexplained delay was caused in recording statement Ex.PW. In this view of the matter, the plea taken by the convict- appellant during examination under Section 342, Cr.P.C. that the Police forcibly obtained his signatures on a blank paper cannot be ruled out from consideration.
12.It may be mentioned here that according to the prosecution case pick-axe was used for the commission of offence. The convict-appellant while going towards the place of occurrence picked it up from where it was lying but exact place was not shown in the site plan Ex.PU. During investigation the Police did not bother to probe that who was owner of the weapon, it cannot be accepted that some one left such a useful instrument carelessly at the place from where it could have been picked up by any body. Moreover, recovery of said weapon was highly doubtful.
Recovery memo Ex.PC shows that the Police seized it from the shop of Qurban Hussain situated near the place of occurrence. Muhammad Azam and Lal Hussain were the recovery P.Ws but during trial they turned hostile while Investigating Officer who conducted the recovery categorically stated that it was seized from the hotel, thus the exact place from where the weapon of offence was seized was not established, therefore, recovery was of no help to the prosecution case.
13. A careful consideration of the record shows that the trial. Court while convicting the appellant failed to appreciate that the only eye-witness Muhammad. Arshid was not produced by the prosecution, important witnesses including the complainant turned hostile during trial, alleged motive was not proved, recovery of weapon of offence was not a credible piece of evidence, confessional statement Ex.PW was highly doubtful and it was not corroborated by any independent source, no other substantial material involving and establishing the case against the convict- appellant was brought on record, therefore, conviction was not warranted in the circumstances.
14.In light of the facts listed above, the appeal is accepted and the appellant is acquitted of the charge while the reference is refused.