' SH. NAJAM UL HASAN, J.---Muhammad Amin, appellant along with Sharafat Ali and Javed, co- accused was tried by the learned Additional Sessions Judge, Pattoki in a private complaint case under sections 302, 34/397/109, P.P.C. At conclusion of the trial, the learned trial Court vide judgment dated 24-12-2005 acquitted co-accused of the charge and convicted the appellant under section 302(b), P.P.C. And sentenced him to death. The appellant was directed to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to suffer six months R.I.
2. Feeling aggrieved of the impugned judgment, the appellant has filed Criminal Appeal No, 2084 of 2005. The learned trial court has approached this Court by way of Murder Reference No, 277 of 2006 seeking confirmation of death sentence awarded to appellant Muhammad Amin. Both these matters are being disposed of together through this single judgment.
3. Upon the statement of the complainant case F.I.R. No,277 dated 30-6-2002 for the offence under section 302, P.P.C. Was registered. However, being dissatisfied with the police investigation Muhammad Mushtaq filed a private complaint.
4. Brief facts of case as mentioned in the complaint (Exh.DG) are that the complainant and his deceased brother Mukhtar Ahmed owned agricultural land in Mouza Katarmal which was being cultivated by them. On 29-6-2002 the deceased went to irrigate the land. On 30-6-2002, early in the morning, when the complainant along with Khadim Hussain, Muhammad Bota reached in the village, he saw that his brother was murdered at night and he informed the police of Police Station Phoolnagar. When the complainant reached home at Lahore at night after taking the dead body of his brother, Liaqat Ali and Haji Rehmat, who were also irrigating their land in Mouza Kattarmal on the fateful night, told the complainant that early in the morning when they were returning after seeing a fare, on the way they came across Muhammad Amin, Abid, Sharafat and Javed who were armed and appeared to be sacred. They had strong suspicion that the deceased was murdered by them. On 1-7-2002 the complainant nominated the said persons for the murder of his brother but the police did not record his statement accordingly. On 6-8-2002 the accused confessed before Haji Pervaiz, Muhammad Nawaz and Muhammad Aslam that they murdered Mukhtar Ahmed on resistance during the occurrence of robbery and the accused Muhammad Sadiq abetted them. The police favoured the accused and did not submit the report according to the real facts.
5. On 30-6-2002 Dr. Tauqeer Ahmad Hashmi (P.W.9) performed autopsy on the dead body of Mukhtar Ahmad alias Allah Wala and observed the following injuries:--
(1) A lacerated wound with inverted margin blackening was present all around the wound. The wound was present at the front of left chest. It was about 8 cm front the left nipple upward and medially and 6 cm from the xivhisternum and 3 cm from the middle line. Portion of lung is protruded through the wound.
(2) A lacerated wound size 4 cm x 6 cm present at the ventral aspects of left fore arm. It was 5 cm from the wrist and 14 cm from the elbow. The wound margin were blackened. The wound was deep up to the muscle. The skin, muscle and other structures were burnt out.
' In the opinion of the doctor, the death had occurred due to shock and hemorrhage as a result of Injury No,
1. This injury was caused by fire arm weapon and was sufficient to cause death in ordinary course of nature. Probable time between injury and death was immediate and between death and postmortem examination was eight to twenty four hours.
6. At commencement of the trial in the complaint case, the charge was framed against all the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution produced as many as ten (10) P.Ws. To prove the charge against the accused. The learned trial Court also examined Muhammad Rashid, D.S.P. As C.W.1.
7. The learned trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. The appellant while answering to question "Why this case and why the P.Ws deposed against you?", made the following reply:- "It was blind murder. The occurrence took place at night and the same was un-witnessed. Our agricultural land as well as our Dhari is adjacent to the land and Dhari of the complainant, therefore, 'some dispute arise between us and the complainant. Due to this grudge the complainant and the P. Ws involved me in this false case. I am innocent. I had not committed the murder of Mukhtar deceased. Neither I know about the occurrence nor I am involve(sic) in this case. No weapon of offence was recovered from me. The recovery is planted one and fake also. I have not confessed the murder of Mukhtar deceased before Nawaz and Haft Pervaiz. All the P.Ws.
Are related inter-se. They have also made improvements in their statements and have also changed their version. I am innocent totally."
9. Neither the appellant appeared on oath under section 340(2), Cr.P.C. Nor produced any evidence in his defence. The learned trial court after appraisal of evidence vide judgment dated 24-12-2005 convicted and sentenced the appellant, as narrated earlier, hence, this appeal.
10. Learned counsel for the appellant contends that in this case there is no eye-witness of the occurrence; that as per the prosecution case when the complainant came at the spot he saw the dead body having two fire arm injuries, one on his chest and the other on his wrist and the case was registered against unknown persons; that no time of occurrence has been brought on record; that the complainant nominated the appellant along with others on 1-7-2002 on the information provided to him by Rehmat Ali and Liaqat Ali but they had not themselves witnessed the occurrence; that there was no reason for these witnesses to remain mum for a day and thereafter made a statement against the appellant; that during cross-examination they had admitted that they saw the appellant at Fajar Wela and the time of occurrence was not available in the prosecution case as such their statements have got no legal value; that only evidence against the appellant is of extra judicial confession made on 6-8-2002 after two moths of the occurrence before Haji Pervaiz who is a relative of the complainant and two others but the reason for making the same is not available on the record; that even otherwise extra judicial confession was made jointly by the accused which has no legal authenticity; that in extra judicial confession the three other accused who were specifically named and were assigned specific roles have been acquitted by learned trial Court; that nothing was recovered in consequence of that extra judicial confession except a carbine and even with respect to the carbine there is no report of Fire Arm Expert whether it was in working order or not; that according to the postmortem report there are two fire arm injuries on the person of the deceased and no crime empty was recovered from the place of occurrence which falsifies the recovery; that three of the co-accused were declared innocent by the Investigating Officer and the case of the appellant is at par with the said co-accused as such the appellant is also entitled to the same relief; that learned trial Court convicted the appellant only on the statement of C.W.1 Muhammad Rasheed D.S.P. And it is well settled that the opinion of the Investigating Officer in the absence of other corroboratory evidence, the evidence of extra judicial confession is not sufficient for conviction; that learned trial Court has disbelieved the evidence of recovery, extra judicial confession qua the remaining three accused which also create doubt regarding the involvement of the appellant and the benefit of the doubt be extended in the favour of the appellant; that the motive is also not proved as nothing was robed from the deceased and nothing was recovered from the accused. The learned counsel has relied on the case reported as 1997 SCM R 866 wherein it was held that under the rule of consistency where some of the accused are acquitted, the other having the same role also deserve the same benefit.
Further, in the case reported as 1989 SCM R 1099 it was held that when there is no matching report of Fire Arms Expert the recovery of such weapon is of no use to the prosecution. Regarding extra- judicial confession learned counsel relied on the case reported as 2006 SCM R 463 wherein it was held that the joint extra-judicial confession has got no legal value.
11. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant states that although there is no eyewitness of the occurrence but there is evidence of last seen and extra judicial confession; that it is not available in the evidence that the confession was joint; that since the accused had made confession, there was no need of identification parade; that the accused who were declared innocent were acquitted by the learned trial court but the appellant was rightly convicted; that P.W.1 and P.W.2 have not stated that the other accused were having any weapon or they committed any active role but while, appearing in the Court they have stated that two of the accused were armed with dagger and they caught hold the deceased from his arms and legs; that no reason for false implication of the appellant has come on record and this circumstance also leads to one inference that it was the appellant who has committed this occurrence; that mere relationship is not sufficient to discard the evidence of these witnesses; that P.W.3 P.W.4 justified their presence at Fajar Wela as they were coming after seeing Mela; that the deceased was alone and he was murdered by the appellant in the occurrence of robbery; that evidence of extra judicial confession is very relevant in this case and as such the appellant is not entitled to acquittal.
12. We have heard the arguments of learned counsel for the parties and have gone through the record.
13. The occurrence took place on the preceding night of 30-6-2002. The deceased, who was brother of the complainant, was alone in his Dera and it was stated in F.I.R. Which was recorded at 9-00 a.m. On 30-6-2002 in the Police Station that unknown persons killed the deceased while using fire arm weapons. No suspicion was shown against any one. The complainant made a supplementary statement on 1-7-2002 while relying on the statements of Liaqat Ali (P.W.4) and Rehmat Ali (P.W.3) who saw the appellant along with three others near the place of occurrence at Fajar Wela while they were coming from Maila. At that time the appellant was armed with carbine whereas his co-accused Javed and Sharafat were having Churries and Abid Ali was empty handed. The complainant stated that he was informed by the said Liaqat. Ali and Rehmat Ali at the time of funeral ceremony of his brother Mukhtar, deceased that he was murdered by the appellant with the help of other persons. Later on, on the next day i,e, 1-7-2002 he made a supplementary statement in this respect. The appellant was arrested on 7-8-2002 and on his pointation on 9-8- 2002 a carbine along with five live cartridges was recovered.
14. The other evidence produced by the prosecution has been brought on record through Haji Pervaiz Ahmad (P.W.1) and Muhammad Aslam (P.W.2). They have stated that the appellant along with others came at the Dera along with one Baba Asghar and confessed their guilt regarding the murder of Mukhtar. They also admitted that the deceased was murdered for extorting money from him. The appellant while making an extra judicial confession before these persons admitted that at the relevant time he was having carbine and was having a muffled face: As his face was exposed, and he was identified by the deceased, he with the help of others killed the deceased. He also admitted that at that time he was having a carbine with which he fired at the deceased whereas his co-accused Javed and Sharafat were having churris and Abid was empty handed. Co- accused caught hold of the deceased from his hands and feet, he fired at the deceased. During cross-examination Haji Pervaiz Ahmad (P.W.1) has admitted that the deceased was his maternal uncle. This extra-judicial confession was made by the appellant and other accused on 6-8-2002 i,e, after one month and seven days. The prosecution case in all is based on the evidence of last seen of the appellant and other accused near the place of occurrence. On the fateful night they were seen by Liaqat Ali (P.W.4) and Rehmat Ali (P.W,3) having weapons with them.
15. The third piece of evidence is the recovery of Carbine on the pointation of the appellant There is no eye-witness of the occurrence. No one saw the appellant committing the murder of the deceased. The deceased was all alone when he was done to death. Similarly no crime empty was found near the place of occurrence and nothing was brought on record indicating the involvement of the appellant in the case.
' As no one has seen the occurrence so there was no need of any identification parade.
Postmortem examination of the .Deceased was conducted on the very same day and the doctor observed two fire arm injuries on the person of the deceased: one on his chest and the other on his wrist. Both the injuries were declared to be the result of fire arm. No dimension of injury on the chest was given and the dimension of the second injury was stated to be 5 CM from the wrist and 14 CM from the elbow having blackening on the margins. The doctor has observed that this injury has been caused by rubbing of friction of bullet. From the Medical evidence it cannot be ascertained as to which kind of weapon was used. Whether the fire arm injury on the Chest was a result of cartridges fire or the same was caused by a bullet which after entering the body broke the ribs into pieces. It is not clear that metallic foreign bodies were the pallets or the broken pieces of bullet.
Nothing was recovered underneath the injury on the wrist. The doctor has given in the note that the same could be the result of friction of bullet. No crime empty was recovered from the place of occurrence whereas the allegation is that two fire shots were made at the deceased. In these circumstances, the kind of weapon which has been used in this occurrence remained unsolved even after postmortem report. In the extra judicial confession the appellant along with others has admitted that he used carbine but there is no evidence of reloading the same.
16. The evidence of wajtakar brought on record through Rehmat Ali (P.W.3) and Liaqat Ali (P.W.4) indicates that the appellant along with other accused was seen by them near the place where the deceased was done to death. These witnesses never went inside the room where the occurrence took place and these witnesses saw the appellant having a carbine and his co-accused having Churries at the relevant time. They did not bother to go and see the deceased in the room and even they did not report the matter to the complainant. After knowing about the death of the deceased they made statements in this respect on the next day and similarly the complainant made a supplementary statement on the next day whereas the postmortem examination was conducted on the very same day of the occurrence. Making of such statements by the witnesses on the next day after they had seen the accused having weapons with them near the place where the deceased was done to death makes their statements doubtful. The natural reaction would have been reporting the matter to the police immediately after knowing that the deceased has died receiving fire arm injuries. The matter regarding extra judicial confession was brought on record through statements of P.W.1 and P.W.2. It is stated that all the accused came to them along with one Baba Asghar and confessed their guilt but no plausible reason has boon brought on record for making, confession before such persons. Babar Asghar was not produced and it was stated that he died. The Hon'ble Supreme Court in case titled Sajid Mumtaz and others v. Basharat and others (2006 SCM R 231) held that:- "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 witnesses 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."
There is another circumstance that all the accused came together to make extra judicial confession before the witnesses. The Contention of the learned counsel that such confession can be considered as joint extrajudicial confession which is not tenable in the eyes of law has force. The Hon'ble Supreme Court in case titled Zafar Iqbal and others v. The State (2006 SCM R 463) gave the benefit of doubt to the accused while disbelieving the joint extra judicial confession and other similar circumstances.
17. During investigation the other accused were found innocent by the Investigating Officer and their names were not mentioned as accused in the report under section 173, Cr.P.C. This fact also creates a big dent in the prosecution case. The witnesses have stated that all the accused came together and at the relevant time two other co-accused were having Churries in their hands.
However, later on while disbelieving these witnesses the other accused were found innocent by the Investigating Officer and even after recording of evidence the learned trial Court has disbelieved these witnesses qua the involvement of other accused and as such the other accused were acquitted, .So statements of these witnesses impleading the appellant in this murder case can only be accepted if their statements get corroboration in all aspects from other unimpeachable source.
18. As discussed earlier the recovery is of no use The carbine recovered was not sent to the Fire Arm Expert to verify whether the same was in working order. No crime empty was recovered from the place of occurrence. Even the statement of doctor does not indicate that carbine was used in this occurrence, so the recovery can be said with all certainty is of no corroboration to the ocular account. The motive has not been proved. The absence of any evidence regarding missing of valuables does not provide support to the prosecution case regarding the motive. So the only evidence left is that of extra judicial confession made by all the accused. Muhammad Rashid D.S.P.
(C.W.1), who was the Investigating Officer and S.H.O. Of the police Station on the day of occurrence, appeared in the Court and admitted that in his investigation only the appellant was found involved and all the other accused were found innocent in his investigation. The other accused were not present at the spot at the time of occurrence. In his investigation P.Ws made false statements while implicating the other accused. It appears that learned trial Court has convicted the appellant only while relying on the statement of Investigating Officer. The opinion of the Investigating Officer is not sufficient for the conviction of an accused. No doubt the Court has to sift the grain from chaff but in the present case there is only evidence of extra-judicial confession against the appellant which was also available against the other accused who were acquitted by the learned trial Court. Such an evidence alone is not sufficient for the conviction of the appellant in a case of capital charge.
19. While considering all these aspects we are of the consistent view that the prosecution has not been able to prove the guilt of the appellant beyond reasonable doubt and in such circumstances the appellant is entitles to benefit of doubt. The Hon'ble Supreme Court in case titled Muhammad Akram v. The State (2009 SCM R 230) held that:-- "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its' benefit, not as a matter of grace and concession, but as a matter of right."
' So while extending him the benefit of doubt, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. Resultantly the appeal filed by the appellant (Criminal Appeal No, 2084 of 2005) is accepted. The appellant shall be released forthwith if not required in any other case.
20. Death sentence awarded to Muhammad Amin, appellant IS NOT CONFIRMED and reference (M.R.
No,277 of 2006) is answered in the NEGATIVE.