' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No, 1680 of 2006 (Nizamuddin v. The State) and Murder Reference No, 35 of 2004 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to appellant Nizamuddin, as they arise out of the same judgment dated 29-1-2004 passed by the learned Additional Sessions Judge, Sargodha, whereby, appellant was convicted under section 302(b), P.P.C. For the murder of Muhammad Mumtaz deceased and sentenced to death with a further direction to pay a compensation of Rs, 50,000, as provided under section 544-A, Cr.P.C., to the legal heirs of the deceased. However, benefit of doubt was extended to Mst. Razia Bibi co-accused by way of acquittal from the instant case. Criminal Appeal No, 272 of 2004 was filed against her acquittal which was dismissed by a learned Division Bench of this Court vide order dated 10-11-2004.
2. Brief facts of the case, as given by P.W.6 Muhammad Fayyaz complainant in the F.I.R. (Exh. PF) are that he was a resident of Dheerowal Police Station Sahiwal, District Sargodha and was a cultivator by profession. As per complainant, his brother Mumtaz (deceased) was living in Imran Town Sargodha and was earning his livelihood by plying a taxi. As per F.I.R., the occurrence took place on the night between 17/18-5-2003 and the complainant (P.W.6) was present in his house when wife of said Mumtaz (deceased), namely, Mst. Razia Bibi informed him about his murder in the residential house, upon which, the complainant along with his another brother Ahmad Khan and relatives reached at the spot, where, Mumtaz's wife told him that her husband had come home at 11-00 p.m.
On the preceding night on his taxi and asked her to sleep in other room as there was a guest with him. It was also alleged in the F.I.R. That Mst. Razia Bibi along with the children slept in the other room on a bed. As per story given in the F.I.R., she woke up for the Fajar prayer and found the door of her room locked from outside which was opened with efforts made by her and her children present inside the room. It was further stated in the F.I.R. That she found her husband Mumtaz dead on the bed who was smeared in blood having a firearm injury on the top of his head while the unknown guest was absent.
3. The appellant and the acquitted co-accused Razia Bibi were arrested on 15-6-2003 on a suspicion shown by the complainant through a supplementary statement recorded on 25-5-2003.
Appellant got recovered a pistol during the course of investigation and was found guilty.
4. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused, charge was framed to which accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution produced as many as 13 P.Ws. During the trial. The appellant/accused was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. However, the learned trial Court convicted and sentenced the appellant as detailed above.
6. Learned counsel for the appellant contends that the appellant has falsely been involved in this case on account of mala fide of the complainant and the local police; that admittedly he is not named in the F.I.R.; that the prosecution has produced a very weak type of evidence against the appellant i,e, wajtakkar, extra-judicial confession, recovery of pistol and statement of P.W.12 Najamul Hassan on the basis of which conviction on a capital charge cannot be maintained.
7. As far as evidence of wajtakkar is concerned, learned counsel for the appellant contends that P.W.9 Allah Bakhsh is a chance witness being resident of a place at a distance of about 35/36 kilometers from the place of occurrence and more over in his examination-in-chief, he has stated that he along with others had seen the appellant while running with a pistol in his hand and on asking, the appellant told them that Mumtaz deceased was not present at home whereafter they did not go to the house of Mumtaz. Learned counsel further contends that during the course of cross-examination the said P.W. Admitted that thereafter he, along with Muhammad Sher P.W., went to the house of Mumtaz where they learnt about his death and thereafter left for Okara.
Submits that no reliance can be placed on the statement of this P.W. As his statement was recorded by the police on 3-6-2003 after about 15/16 days of the occurrence.
8. While discussing the evidence of extra-judicial confession, learned counsel vehemently argues that there was no occasion for the appellant and his acquitted co-accused Razia Bibi to make such a confession before P.W.11 Muhammad Riaz as, admittedly, the appellant belonged to Takht Bhai Mardan N.-W.F.P. Whereas the said P.W. Was the resident of Chandna Police Station, Sahiwal which was about 25 kilometers away from the place of occurrence, as such, no reliance can be placed on this piece of evidence and that more over this was a joint extra-judicial confession allegedly made by the appellant and his acquitted co-accused Razia Bibi after 20/22 days of the occurrence which is inadmissible in evidence.
9. While advancing his submissions, learned counsel for the appellant adds that as far as evidence of P.W.12 Najamul Hassan is concerned, this witness was examined by the police under section 161, Cr.P.C. On 18-5-2003 through his statement Exh.DC but while entering the witness box he gave a different story from his statement recorded under section 161, Cr.P.C. And has made dishonest improvements with which he was duly confronted, therefore, no reliance can be placed on the statement of this witness.
10. So far as recovery of pistol at the instance of the appellant is concerned, learned counsel states that a crime empty P6 was taken into possession from the spot through memo Exh.PJ, the appellant was arrested on 15-6-2003 while the pistol was allegedly recovered from the appellant through memo Exh.PK on 18-6-2003, both these articles were sent to the office of the Forensic Science Laboratory and report of the Laboratory (Exh.PN) is not positive, therefore, no reliance can be placed on this piece of evidence as well.
11. While concluding his submissions, learned counsel contends that-case of the appellant is full of doubts, therefore, he is entitled to acquittal as co-accused of the appellant has already been acquitted by the learned trial Court and appeal against her acquittal was dismissed by this Court.
12. Conversely, the learned Additional Prosecutor-General for the State, while vehemently opposing this appeal, contends that the presence of the appellant at the spot is not disputed; that it has come on record through the statement of P.W.12 Najamul Hassan that the appellant, who remained with the deceased in his room on that very night, and it was the appellant who can explain how this murder had taken place; that P.W.12 Najamul Hassan has no enmity with the appellant to falsely depose against him whose evidence is natural; that evidence of wajtakkar and extra-judicial confession is confidence-inspiring and that this appeal is liable to be dismissed as the appellant has been awarded the sentence through a well-reasoned judgment.
13. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
14. The occurrence in this case took place during the midnight of 17/18-5-2003 while the F.I.R. Was lodged at about 8-00 a.m. On 18-5-2003 against unknown accused on the statement of P.W.6 Muhammad Fayyaz complainant, a real brother of the deceased.
15. On 25-5-2003 i,e, after about nine days of the occurrence, P. W.6 Muhammad Fayyaz (complainant) made a supplementary statement (Exh.DA) wherein a suspicion was shown against the appellant A and his real sister i,e, acquitted co-accused Mst. Razia Bibi that his brother Mumtaz deceased was done to death by them. Mst. Razia Bibi was the wife of the deceased while the appellant Nizamuddin was his brother-in-law ("Sala"). According to the supplementary statement made by P.W.6 Muhammad Fayyaz (complainant), appellant was residing in the house of the deceased for the last about 2-1/2/3 months where differences arose between the deceased, the appellant and Razai Bibi as the deceased wanted to send back the appellant to Mardan on account of his bad habits while his wife Razia Bibi was siding her brother i,e, the appellant.
16. To substantiate the charge of murder of Mumtaz deceased against the appellant, the prosecution has placed reliance on the following pieces of evidence:--
(i) Wajtakkar;
(ii) Statement of P. W.12 Najamul Hassan;
(iii) Extra-judicial confession; and
(iv) Recovery of pistol and crime empty.
17. The evidence of Wajtakkar has been furnished by P.W.9 Allah Bakhsh who, while appearing before the Court, has-stated that he was resident of the place which was at a distance of about 35 kilometers from the place of occurrence and was not the resident of the area where this occurrence took place, therefore, admittedly, he was a chance witness and the explanation given by him qua his presence at the place of occurrence that he along with Muhammad Sher P.W.
(given-up) intended to go to Okara for purchasing the cattle and as it was 1.30 midnight so they decided to stay for the night with Muhammad Mumtaz deceased, does not appeal to common sense. According to the said P.W., at about 2.15 night when they were near the house of Mumtaz, they saw the appellant while armed with a pistol, coming out of the house of the said Mumtaz in the running position. On asking by the said P.W., the appellant told them that ke was in hurry as he had pain in his abdomen and was going to fetch the medicine. The said P.W. Further stated that as the appellant told him that Mumtaz was not present at his house, therefore, they did not go there.
But we have noted that in the cross-examination, he admitted as under:-- "After the Takkar with Nizam Din accused I along with Muhammad Sher P.W. Had gone to the house of Mumtaz deceased on the same night and had learnt about the murder of Mumtaz then and there. Thereafter, we went away to Okara and did not make any statement before the police prior to 3-6-2003. We had informed Fayyaz complainant about the Takkar two days after our arrival from Okara".
18. After careful examination of the statement of this P.W., we are of the view that the statement made by him is not reliable. In his examination-in-chief, he has stated that he did not go to the house of Mumtaz deceased after seeing the appellant while running with pistol but in cross- examination, he stated that he along with Muhammad Sher (given-up P.W.) went to the house of Mumtaz and learnt about his murder. Therefore, he kept mum for about 15 days as his statement was recorded by the police on 3-6-2003. He was not resident of the area where the occurrence took place and he has not offered a reasonable and plausible explanation for his presence at the spot. Moreover, he has changed his statement in cross-examination, therefore, the same is discarded from the evidence.
19. The next piece of evidence is the statement of P. W.12 Najamul Hassan who, in his examination- in-chief, stated as under:-- "On the night between 17/18-5-2003 I along with my sister Aneela Mumtaz were sleeping on one Charpai. During the night I heard the fire report and rushed to a room where my father was sleeping. I saw Razia had caught hold of the legs of my father Mumtaz, Nizam Din had a pistol in his hand and my father was lying in injured condition. On my hue and cry Nizam Din put his pistol on my head and threatened me that if I made noise I would also be killed. Razia accused my mother also threatened me not to tell the above facts to anybody".
20. The said P.W. Was duly confronted with his statement (Exh.DC) recorded by the police. In cross- examination, he stated as under:-- "I did not state before the I.O. In Exh.DC that I and my step-brother Asim Ali slept on one Charpai and that my sister Mst. Aneela slept alone on another Charpai. Confronted so recorded in Exh.DC. I had stated in Exh.DC that during the night I heard the fire report and rushed to a room where my father was sleeping and that I saw Razia had caught hold of the legs of my father Mumtaz while Nizam Din had a pistol in his hand. My father was lying in injured condition. Confronted not so recorded in Exh.DC
21. Surprisingly, statement of P.W.12 Najamul Hassan, before the police (Exh.DC) is entirely different from his statement made before the Court and he was duly confronted with his statement recorded by the police under section 161, Cr.P.C.(Exh.DC), therefore, statement of the said P.W. Also does not inspire confidence as he has made dishonest improvements in his statement before the Court. It is settled law that if improvements are made by the P.W. To strengthen the prosecution case then his statement cannot be accepted. Even otherwise, the statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case, inspiring-confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought and in our view the statement of this witness does not come within the ambit of above rule of acceptance of evidence, therefore, no implicit reliance can be placed on his statement. In this regard reliance is placed on Muhammad Saleem v. The State (2010 SCM R 374).
22. Next piece of prosecution evidence is the extra-judicial confession and to prove it, two witnesses were cited by the prosecution i,e, P.W.11 Muhammad Riaz and Muhammad Hayat (given up). According to P.W.11, the appellant along with his sister Razia Bibi (acquitted co-accused) came to him and confessed their guilt. We have noted that this witness is the resident of a place 20/25 kilometers away from the place of occurrence while the appellant is the resident of Takht Bhai Mardan, N.-W.F.P. It is repellent to common sense that the appellant would go to this witness for making an extra-judicial confession. Even this witness has not stated anything regarding his social status or influence over the family of the deceased coupled with the fact that it was a joint extra- judicial confession made by the appellant and his sister Mst. Razia Bibi who was acquitted by the learned trial Court. It is now settled that this type of evidence is always considered to be a weak type of evidence as the same can be easily procured in the absence of direct evidence, therefore, utmost care and caution is required before placing any reliance on .Such type of evidence. In the examination-in-chief, this P.W. Stated as under:-- "On 9-6-2003 I along with Muhammad Hayat were sitting in the house of Muhammad Hayat P.W.
Nizam Din accused and Razia Bibi accused now present in the court came to us. Nizam Din accused confessed before us that he along with Mst. Razia had committed the murder of Mumtaz as Muhammad Mumtaz had asked him to go from his house and Mst. Razia accused used to reply him that Mumtaz should send his children from his first wife to the house of their Nani and there was quarrel between Mumtaz and Mst.Razia and that was the reason for committing the murder of Mumtaz. Nizam Din further confessed that he had fired With a pistol on Mumtaz deceased whereas Mst.Razia had caught hold of him. Mst.Razia accused also repeated the above confession. Both of them asked us to get pardon from the complainant "
23. It is settled law that until and unless the extra-judicial confession is not corroborated by any other independent piece of evidence, no reliance can be placed on it coupled with the fact that the joint extrajudicial confession is inadmissible in evidence, therefore, it would not be safe to maintain conviction of the appellant on the basis of such type of evidence. The question of placing reliance on extra judicial-confession of the accused persons, joint or otherwise, came up for consideration before the august Supreme Court of Pakistan in the case of Sajid Mumtaz and others v. Basharat and others (2006 SCM R 231), wherein, at page 238, while maintaining acquittal of the accused persons in a murder case who were convicted on the basis of joint extra-judicial confession, the apex Court of Pakistan was pleased to observe as under:-- "17. This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra-judicialconfession staring from Ahmad v. The Crown (PLD 1951 FC 103-107) upto the latest. Extra-judicial-confession has always been taken with a pinch of salt. In Ahmad v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true'.
As, an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra-judicial confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all. Confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: ,(i) to boast off; (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and is always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witness before whom extra-judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought, firstly, when a person is sufficiently trapped and, secondly, from one who is authoritative, socially or officially ..
22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confession. Such confessions by now have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of witnesses with the maker of confession and what, above all, is the position or authority held by the witnesses". (emphasis supplied)
24. As far as recovery of pistol at the instance of the appellant and of crime empty from the spot is concerned, since report of the Forensic Science Laboratory(Exh.PN) is not positive, therefore, the same is of no avail to the prosecution.
25. Analysis of the evidence produced by the prosecution has led this Court to a conclusion that the prosecution case is not free from doubts. It is settled by the apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
(emphasis supplied)
26. After having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and the sentence awarded to the appellant cannot be maintained. Resultantly, this appeal is allowed, the impugned judgment is set aside; the appellant is acquitted from the charge. He is behind the bars and shall be released forthwith if not required to be detained in any other case.
' Murder Reference is answered in the "Negative" and sentence of death is "not confirmed." revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.