The appellant Farooq Ahmad was tried by Mr. Shehzad Pervaiz Abbasi, learned Additional Sessions Judge, Burmala, in Case FIR No, 314 registered on 20.8.1999 at Police Station. Sadar Burewala, District Vehari, for offences under Sections 302/34 PPC. Vide judgment dated 25.4.2003, the learned trial Judge convicted and sentenced the appellant for offence under Section 302(b) PPC to imprisonment for life each plus payment of rupees one lac as compensation to the legal heirs of the deceased, in default whereof to further suffer S.I. for six months each.
2. Aggrieved by his above noted conviction and sentence, the convict/appellant has filed the instant appeal.
3. Briefly facts of the prosecution case, per FIR Ex. PA/1, based on the statement Ex. PA of Muhammad Booth, complainant/PW-1, are that the complainant's son Muhammad Rafiq was serving in Saudi Arabia. On 18.8.1999 at about evening time, he did not find his grand son Muhammad Bilal at the house. Muhammad Bilal aged 11/12 years was missing. The complainant inquired from his wife, who told that Sajjad Akhtar (co-accused) and Farooq Ahmad/appellant had taken him with them on a donkey cart at about 12.30 noon. Muhammad Bilal was wearing white coloured Shalwar, chapel of his grand mother and had wrapped a red Dopatta on him. As Muhammad Bilal did not come back, the complainant along with Muhammad Iqbal (given up PW), Asghar Ali although given up but appeared as DW-1 and Latif/PW-2 went to the house of accused persons and inquired from them about Muhammad Bilal. The accused did not tell anything about Muhammad Bilal. The complainant continued the search for Muhammad Bilal but could not find him. On the second day, the accused told that Muhammad Bilal would not be found. On 20.8.1999, the accused, on promise that no action would taken against them, told the complainant that they had tried to commit sodomy with Muhammad Bilal and subsequently murdered him by pressing his throat and then cut his throat with a sickle and threw his dead body in naked position in the field of sugarcane so that might not tell the occurrence at his house. The accused got recovered the dead body of Muhammad Bilal from the field.
4. On 20.8.1999 when Khalid Mahmood, SI/PW-9, was present at Masoom Shah Road Chak No, 571/EB, Muhammad Boota, complainant/PW-1, appeared before him and got recorded his statement Ex. PA and after sending the same to the police station, he went to the spot where the dead body of the deceased was lying. He prepared its injury statement Ex. PA/3 and inquest report Ex.PJ and sent the dead body for post mortem examination. He collected blood-stained earth from the spot; took pair of female shoe Ex. P-1/1-2 and Shalwar along with string P-2 and a Safa like Doppatta P-3. He prepared rough site plan Ex. PK of the place of occurrence. On 19.9.1999, Rab Nawaz Tariq, Inspector/PW-8, arrested the appellant and his co-accused. Both of them separately pointed out the place of occurrence in the presence of Muhammad Latif and Muhammad Iqbal.
Pointation memo Ex.PE and Ex. PF were prepared respectively on the pointation of Muhammad Farooq/appellant and, Sajjad Akhtar/co-accused. On the same day, co-accused Sajjad Akhtar led to the recovery of sickle P-4, which was taken into possession vide memo Ex. PD, attested by Muhammad Latif and Muhammad Iqbal. After completion of investigation, the accused were sent up to face the trial. As the appellant denied the charge, the trial commenced. Sajjad Akhtar/co- accused, being juvenile, was separatedly tried by the same Court.
5. To substantiate its version at the trial; prosecution produced nine witnesses. Muhammad Boota, complainant/PW-1, the grand father of the deceased, and Muhammad Latif/PW-2 are the witnesses before whom the appellant and his co-accused confessed their guilt and pointed out the place of dead body in the sugarcane field. In addition to that, Muhammad Latif/PW-2 also stated about the recoveries effected from the spot as well as the instance of Sajjad Akhtar/co- accused. Dr. Mubashar Latif Ahmad/PW-7, who, on 20.8.1999 at about 6.15 p.m. conducted post mortem examination of the deceased, while observing one injury (there was a wound measuring 6 cm x 2 cm underlying muscles cut, swollen and offensive smell was present, maggots were present. Tissues on left arm were missing bone was visible) opined that cause of death was cardio respiratory arrest due to Injury No, 1 on the neck of the deceased. According to the doctor, in view of the nature of the injury, the time which elapsed between injury and death was sudden and the time between death and post mortem examination was within one week. Khalid Mahmood, SI/PW-9, and Rab Nawaz Tariq, Inspector/PW-8, stated about the investigation of the case. After placing on record the reports of Chemical Examiner Ex. PL and Serologist Ex. PL/1, the prosecution closed its side. The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under Section 342 Cr.P.C., the appellant pleaded his innocence and false implication, stating that it was a blind murder and he had been implicated in the cause due to previous enmity of the complainant over a piece of land with his father. He has also produced Asghar Ali as DW-1, who stated that he along with the complainant searched for Muhammad Bilal deceased. They went to the field of watermelon. They found the dead body in the sugarcane. Field which was unidentifiable, whereupon the matter was reported to the police. He along with the complainant went to the police station, and the dead body was lifted by the police and was brought to the hospital. He further stated that the statement of the complainant narrated in the FIR was false and the accused were nominated due to suspicion. However, the appellant did not appear as his own witness as enjoined by Section 340 (2) Cr.P.C.
7. Learned counsel for the appellant contends that the prosecution has failed to prove its case against the appellant, as, according to him, the only evidence against the appellant was the alleged extra judicial confession made before him and the PWs; that one of the witnesses namely Asghar Ali before whom such extra judicial confession was made, has not supported by the prosecution and as such, the extra judicial confession looses its sanctity; that there is conflict between the alleged extra judicial confession and the medical evidence.
8. Conversely, the learned DDPP for the State has vigorously defended the impugned judgment, contending that the prosecution has proved its case against the appellant through extra judicial confession, recovery of dead body on the pointation of the appellant and the recovery of weapon of offence at their instance. Hence, the appellants have rightly been convicted and sentenced by the learned trial Court.
9. Arguments heard. Record perused.
10. The prosecution placed its reliance upon the statements of Muhammad Boota, grand father of the deceased, complainant/PW-1, and Muhammad Latif, paternal cousin of the complainant/PW-2.
According to them, they along with Muhammad Iqbal complainant that no action would be taken against them told that after subjecting Muhammad Bilal to unnatural lust, they committed his murder by strangulating and inflicting sickle bow on his neck. This version of the two witnesses stands belied by the statement of Asghar Ali, who, though was not produced at the trial by the prosecution, but was produced by the accused as DW-1, who corroborated the statement of the said PWs to this extent that he along with both witnesses and one Muhammad Iqbal (given up PW) has gone to the sugarcane field where they saw a dead body, which was not identifiable. He further stated that he along with the complainant went to the police station and the police lifted the dead body with the help of one Christian, which was brought to the hospital. He further stated that the statement as narrated in the FIR by the complainant was false. He was subjected to cross examination but nothing favourable to the prosecution could be brought on record. Resides this, Both the witnesses, before whom the alleged extra-judicial confession was made, neither mentioned the place nor time when such extra-judicial confessions was made. Further-more, if they had strangulated Muhammad Bilal to death, then what was the necessity to inflict a sickle blow on his neck. Such extra-judicial confession was jointly made by the two accused.
11.Apart from the above noted facts, the alleged extra-judicial confession made by the appellant can hardly be believed, as both the aforesaid witnesses, as noted above, are closely related to the deceased and they would not have spared the appellant or left him free after listening from his mouth that he had murdered the deceased. In this case, admittedly, both the witness did not bother to apprehend the appellant after hearing the alleged confession. Even he was not tried to be produced before the police, especially when he pointed out the dead body. The re-action of both the witnesses in situation as mentioned above was highly unnatural and unbelievable.
Normally, such close relatives would have apprehended the appellant so as to be produced before the police. It is well-settled law that extrajudicial confession is the weakest type of evidence and it should be evaluated with care and caution and the same should be voluntary. The said confession is also not voluntary at all. If it is seen from this angle that the appellant opted to flee away from the spot after making alleged confession and pointing out the dead body. His slipping away from the alleged place of pointation is by itself a proof of the fact that such confession was not voluntary, as no one can be expected from a person who made bravely the extra-judicial confession and pointed out the dead body to the witness who are closely related to the deceased and then he would run away from the spot. The natural re-action of the appellant was to appear before the police after making such confession. In this case neither he was apprehended and produced by the witnesses before the police nor he himself opted to appear before the police and he was shown to be arrested after one month of the alleged confession.
12.This is not all. The story narrated in the FIR is in conflict with the medical evidence, as, according to the doctor/PW-6, the cause of death was cardio respiratory arrest due to Injury No, 1 on the neck of the deceased. He admitted, in his cross-examination that cardio respiratory arrest is also a cause of death in natural death cases. He further admitted that mode of death was still in aura in the instant case. He also went to admit that the tissue which he had mentioned to be missing in his report about left arm might be missed by animal bites. The last admission of the doctor is further supported by Muhammad Latif/PW-2, who admitted in his cross examination that one arm of dead body was missing. He further admitted that no body witnessed the accused by committing the murder except Allah Almighty.
13. There is yet another aspect of the matter, which is very important and that is that in his statement, the appellant termed his false involvement in the case due to enmity over a dispute of land. This version is supported by PW-5, who in his cross-examination admitted that a case over some land, which was in his possession, was pending between one Nindo and Sajjad/co-acoused.
It is an admitted fact that both the witnesses are closely related to the deceased. In view of their close relationship with the deceased and the fact that some dispute over a piece of land existed between the parties, the false involvement of the appellant in the instant case cannot be ruled out.
14. The resume of the above discussions is that case against appellant is replete with doubts; hence, the prosecution has failed to prove the same against him beyond doubt. Accordingly, I, while extending the benefit of doubt to the appellant, allow this appeal; set aside the impugned judgment and acquit him of the charge. He shall be released forthwith if not required in any other case.