IQBAL HAMEED-UR-RAHMAN, J.---The appellant Irfan and his co-accused Mushtaq alias Bagga Masih were tried by Mr. Shabbir Hussain Chattha, learned Sessions Judge, Toba Tek Singh, in case F.I.R. No.224 registered on 21-5-2005 at Police Station City Gojra, for offences under sections 364/302/34, P.P.C., who vide judgment dated 25-5-2006 convicted the appellant under section 364/34, P.P.C. And sentenced him to 10-years R.I. With fine of Rs.20,000 in default whereof to further undergo S.I. For three months. He was also convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life plus payment of rupees one lac as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default whereof to further suffer S.I. For six months. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. By the same judgment co-accused of the appellant namely Mushtaq alias Bagga Masih was convicted under section 364/34, P.P.C. And sentenced to 10 years R.I. With a fine of Rs.20,000 in default whereof to further undergo S.I. For 3 months, and under sections 302(b)/34, P.P.C. He was awarded death sentence plus payment of rupees one lac as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., in default whereof to further suffer S.I. For six months. Challenging his conviction the appellant Irfan has filed the instant appeal.
2. Briefly, the prosecution case, as per F.I.R. Exh.PD, is that Lal Muhammad complainant stated before Shafqat Ali S.I. That he runs a motorcycle rickshaw bearing Registration No. 6937/TSC Model 2004 chassis No.164112 himself. Occasionally his son Shoaib aged 17/18 years also drives the same. - On the night in between 19-20-5-2005 at 12-30 a.m, complainant along with his son Muhammad Shoaib was present in Gadda Khana Chowk where Habib Khan son of Hashim Ali Khan also reached. The complainant handed over the rickshaw to his son Muhammad Shoaib. In the meanwhile two young men wearing shalwar Qameez came there and settled the fare and sat in the rickshaw and they saw them in the street light. Muhammad Shoaib son of the complainant went with those two unknown persons towards their destination. The complainant and his, brother- in-law Habib Khan went to his house. Till morning Muhammad Shoaib did not return with rickshaw over which they became worried and, the complainant started search of his son and rickshaw but the culprits could not be traced out. The complainant has further stated that he was of the considered view that the above mentioned two unknown persons had abducted his son Muhammad Shoaib in order to cause him physical and monetary loss.
3. After usual investigation, the police finding both the accused guilty submitted challan before the learned trial Court where they were charge sheeted to which they did not plead guilty whereupon the prosecution in order to bring home guilt of the accused, examined as many as 13 witnesses.
4. On 21-5-2005 when Shafaqat Ali, Sub-Inspector/P.W.13, was posted at Police Station City Gojra, Lal Muhammad, complainant/ P.W.6, appeared before him and got recorded his statement Exh. PD, the same was read over to him, who signed the same in token of its correctness then he went to the spot and recorded the statements of the P. Ws. He received an information that an unidentified dead body was hanging on a mango tree. Lal Muhammad identified the dead body of the deceased Muhammad Shoaib. He prepared its injury statement Exh.PK and inquest report Exh.PL, which were in his hand and bear his signatures. The dead body was sent to Eye Cum General Hospital, Gojra through Muhammad Ashraf Constable No.299 who after post mortem examination produced last worn clothes of Shoaib deceased shirt Pl, Patloon P2, vest P3, underwear P4 and belt P5 along with sealed boxes and envelop which he took into possession vide memo. Exh.PA, which is in his hand and bears his signatures. He collected blood stained earth from the spot where the dead body of Shoaib was hanging. It was made into a sealed parcel and taken into possession vide memo. Exh. PG, two pieces of clothes P8/1-2 vide memo Exh.PH. He prepared rough site plan of the place of occurrence Exh.PN. On 12-12-2005, Muhammad Yar S.I., P.W.11, arrested Mushtaq alias Bagga and Irfan accused and sent them to jail as their identification parade was to be held. On 6- 1-2006 both the accused made disclosure about the recovery of rickshaw. On the same day Mushtaq accused while in police custody led to the recovery of body of Rickshaw P5, it was taken into possession vide memo. Exh. PE. He prepared rough site plan of the place of recovery of the body of rickshaw P5. Exh. PE/1. On the same day Irfan accused while in police custody led to the recovery of portion of rickshaw P6 from his residential house and it was taken into possession vide memo. Exh. PF. After completion of investigation, the accused were sent up to face the trial. As the appellant denied the charge, the trial commenced. Muhammad Zaman HC, P.W.1, Muhammad Ashraf Constable P.W.2, Muhammad Yaqoob Constable P.W.3, Akbar Ali Halqa Patwari P.W.4, Dr. Waseem Zafar Cheema Medical Officer, P.W.5, Lal Muhammad, complainant/P.W.6, Habib Ali P.W.7, Muhammad Ijaz Munir Special Judicial Magistrate, Sajjad Ahmad Khan P.W.9, Muhammad Ashraf P.W.10, Shafaqat Ali (Retired) S.I. P.W.13. Sajjad Ahmad Khan P.W.9 Muhammad Ashraf P.W.10 are the witnesses before whom the appellant and his co-accused confessed their guilt. Dr. Waseem Zafar Cheema Medical Officer/P.W.5, who, on 22-5-2005 at about 6-00 a.m. Conducted postmortem examination of the deceased, while observing a ligature mark of cotton cloth buried tightly around the middle of neck on removal of cloth 3 cm wide ligature mark revealed all around the neck.
According to the doctor, the cause of death in his case was asphyxia resulting from ligature around the neck which was ante mortem and was sufficient to cause death in ordinary course of nature.
The probable duration between injury and death was within half an hour whereas between death and post mortem was 60 to 72 hours approximately.
5. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication. However, the appellant neither appeared as his own witness as enjoined by section 340(2), Cr.P.C. Nor produced any evidence in his defence.
6. Learned counsel for the appellant contended that the main accused in the case is Mushtaq, who had been awarded death sentence, had already been acquitted on account of a compromise arrived at between him and the legal heirs of the deceased. The appellant being a poor person could not afford to enter into a compromise with the legal heirs of the deceased. It has been vehemently argued that it is a case of no evidence. In fact it was a blind murder and the appellant has been involved in the instant case by the complainant and the witnesses on account of an extra-judicial confession alleged to have been made by the appellant before P.W.9 and P.W.10.
While going through the examination-in-chief of P.W.9, learned counsel for the appellant contended that no motive has been attributed to the appellant and there was no reason for the appellant to approach P.W.9 and P.W.10; that even otherwise, the evidence of extra-judicial confession is a weak type of evidence which has to be corroborated by strong circumstantial evidence. In the instant case the appellant is not connected with the offence through any strong circumstantial evidence; as such, the recovery alleged to have been effected from the appellant is not in accordance with law. The same had been got effected without associating any independent witness from the locality; therefore, it is a violation of the mandatory provisions of law. Even otherwise, the recovery becomes doubtful as according to the report of the Forensic Science Laboratory the chassis number could not be deciphered due to deep filing/grinding. It is further contended that no specific role has been attributed to the appellant; that the appellant was taken into custody on 12-12-2005 after about four months; as such, the identification parade which has been held on 24-12-2005, the veracity of the same becomes doubtful as the same has been conducted after about four months of the alleged occurrence. Mere involvement of the appellant on the basis of the extra-judicial confession, which is a very weak type of evidence and in the absence of any other corroborative piece of evidence against the appellant, he could' not have been convicted on a capital charge. Reliance in this regard has been placed on Wazarat Hussain v.
Nazir Akhtar and another 2010 PCr.LJ 1567.
7. Further argued that in the case of Ali Khan v. The State (1999 SCM R 955) the apex court held that in the case resting on the circumstantial evidence no link in the chain should be missing and all the circumstances must lead to the guilt of the accused but herein this case apart from the recovery of portion of rickshaw, there is no other evidence against the appellant; as such, following the dictum laid down in the case (supra), the appellant is entitled to be acquitted from the charge. It was further held by the apex court in the case of Muhammad Aslam v. Sabir Hussain and others (2009 SCM R 985) that conviction cannot be based on any other type of evidence except a substantive or direct evidence available.
8. The learned counsel for the appellant further contended that since the main accused Mushtaq who had been awarded death sentence, has been acquitted on account of the compromise, the appeal of the appellant be accepted, who had already served out a major portion of the sentence of more than five years and accepting the appeal the appellant be acquitted of the charge.
9. Conversely, the learned APG for the State has vigorously defended the impugned judgment, contending that the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt; that the presence of the complainant and P. W.7 at the place and time of occurrence is established being natural as the accused persons hired the rickshaw of the complainant and they had seen the accused in the street light and were duly identified the appellant during the course of identification parade held on 24-12-2005, which was held in accordance with the mandatory provisions of law; that the recoveries effected from the house of the appellant fully corroborate the ocular account. It is further contended that the medical evidence also supports the ocular account. It is further contended that the learned trial Court has already taken a lenient view by awarding imprisonment for life to the appellant. In view of the same he deserves no leniency by this Court, the appeal be dismissed.
10. Arguments heard. Record perused.
11. Admittedly, the prosecution has based its case upon the last seen evidence and extra-judicial confession made by the accused appellant before P.W.9 and P.W.10. Apart from the same, there is no direct evidence against the appellant. Keeping the same into consideration coupled with the recoveries effected the appellant has been convicted and sentenced on account of circumstantial evidence against the appellant being an accomplice of the main accused Mushtaq, who had been sentenced to death.
12. In the absence of any direct evidence against the appellant, convicting the appellant on the basis of the extra-judicial confession only on account of the recovery of half portion of rickshaw without associating any independent witness from the locality, makes the recovery doubtful, the benefit of which goes to the accused/appellant. Reliance is placed on Muhammad Awais Khalid v.
The State 2009 PCr.LJ 116. Moreover, the recovery of half portion of Rickshaw at the pointation of the appellant, which has only been witnessed by the complainant and none other, the veracity of the same becomes doubtful when no independent witness has been associated by the prosecution from the locality at the time of the said recovery. In these circumstances, on the basis of circumstantial evidence the appellant cannot be convicted and awarded life imprisonment as held by the apex Court in Ali Khan v. The State (1999 SCM R 955) that unless substantial or direct evidence is available, conviction cannot be based on any other type of evidence. Moreover, extra- judicial confession being a joint confession is considered to be a nullity in the eye of law and could not be considered as legally admissible evidence. Reliance is placed on Safdar Shah v. The State (1999 M LD 1240). It is well-settled law that extra judicial confession is the weakest type of evidence and it should be evaluated with care and caution. Even otherwise, accused was nominated through supplementary statement. Statements were recorded after five months of the occurrence.
No direct evidence against accused to connect him with commission of the offence is available on record and the entire prosecution case is based upon joint extra-judicial confession and circumstantial evidence. The prosecution is not in possession of any direct evidence against the appellant. The joint extra-judicial confession could not be used against the appellant in the absence of any confirmatory evidence. It is well settled by now that such type of evidence is not worthy of any reliance in order to convict a person on a capital charge and for such conviction the evidence should come from an unimpeachable source.
13. The resume of the above ,discussions is that case against' appellant is replete with doubts.
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.