JUDGMENT SH. NAJAM-UL-HASAN, Nadeem alias Deemu, Muhammad Usman, Gharib Alam and Imran alias Heero, appellants were tried by the learned Additional Sessions Judge, Sheikhupura in case F.I.R. No.271 dated 4-9-2002 for the offences under sections 302, 394, 34, P.P.C. Registered at Police Station Manawala, District Sheikhupura. At conclusion of the trial, the learned trial Court vide Judgment dated 27-6-2005 convicted all the appellants under section 302(b), P.P.C. And whereas Nadeem alias Deemu appellant was sentenced to death. Muhammad Usman, Gharib Alam and Imran, appellants were sentenced to suffer imprisonment for life each. All the four appellants were also directed to pay Rs.1,00,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to suffer one year R.I. Each. The appellants were also convicted under section 394, P.P.C. And sentenced to suffer rigorous; imprisonment for ten years each and fine of Rs.1,00,000 each or in default thereof to suffer one year R.I. Each. Sentences of imprisonment awarded to the appellants were directed to run-concurrently and benefit of section 382-B, Cr.P.C. Was also extended to them.
2. Feeling aggrieved by the impugned conviction and sentences, Nadeem alias Deemu, appellant has filed Criminal Appeal No.1585 of 2005, Muhammad Usman and Gharib Alam, appellants have filed Criminal Appeal No.1408 of 2005 and Imran alias Hero, appellant has also filed Criminal Appeal No.1218 of 2005. The learned trial court has also approached this Court by way of Murder Reference No.104 of 2006 seeking confirmation of death sentence awarded to Nadeem alias Deemu, convict. All these interconnected matters are being disposed of together through this single judgment.
3. The prosecution story as unfolded in the F.I.R. (Exh.PF) was that Muhammad Mujtahid Aslam complainant was conductor of truck bearing No.2013/LPT which was driven by Abdul Ghafoor, (deceased). On 4-9-2002, the complainant and Abdul Ghafoor after loading the luggage from Adha Zamindar Goods, Lahore proceeded to Jhang. At about 4-00 a.m. When they reached near Al-Hamd Hotel Manawala, four persons with muffled faces emerged at the road from the crop. One of them gave a signal to stop the truck but Abdul Ghafoor driver did not oblige on which he fired which hit on the fore-head of Abdul Ghafoor. The truck became out of control and turned down on the right side of the road at some distance. All the four culprits fled away thereafter. The injured was taken to DHQ, Hospital, Sheikhupura wherefrom the doctor referred him to Mayo Hospital, Lahore where he succumbed to the injuries.
4. On 4-9-2002 Dr. Israr-ul-Haque (P.W.1) performed autopsy on the dead body of Abdul Ghafoor and observed a stitched wound/5 stitches in number on the mid top of fore-head.
On dissection of skull frontal bone of skull was fractured, on mid part making shape of hole 1 cm x 1 cm meninges were damages and ruptured and clotted blood was present inside the skull.
The doctor opined that death had occurred due to fire-arm injury leading to cardio-respiratory arrest which was sufficient to cause death of a person in ordinary course of nature. Probable time between injuries and death was within 24 hours and probable time between death and post mortem was within 12 hours.
5. On 14-3-2004 i.e. After one year and seven months Muhammad Yaqoob Shaheen son of the deceased moved an application to the S.H.O. Police Station Manawala stating that Khalid Pervaiz and Muhammad Arif told him that on 12-3-2004, Imran alias Hero, Usman, Gharib Alam and Nadeem alias Deemu, appellants along with Mst. Seeman Bibi came and confessed their guilt while expressing that on the day of occurrence, all of the' four accused i.e. Imran alias Hero and Usman armed with pistol .30 bore, Gharib Alam armed with carbine .12 bore and Nadeem alias Deemu armed with gun .12 bore came at Faisalabad road near Al-Hamd Hotel in order to commit dacoity.
They tried to stop the truck on gun point and when it was not stopped, Nadeem alias Deemu fired at the truck with his .12 bore gun hitting the driver. The truck became out of control and turned down on the side of road. The driver sustained fire-arm injury and died later on. At the time of occurrence, they had muffled their faces, as such were not identified.
The complainant received information about arrest of the accused and came to the police station where all the accused were present. They confessed their guilt one by one in custody of the police and in presence of complainant and sought pardon. They were also identified from their features and appearance by the complainant.
6. After submission of application by Yaqoob Shaheen, investigation of this case was entrusted to Muhammad Akram Sub-Inspector. On 7-4-2004, he arrested Imran alias Hero, Nadeem alias Deemu, Usman and Gharib Alam, appellants. On 9-4-2004, the appellants while in police custody pointed out the place of occurrence and he prepared the memo of place of occurrence and he prepared the memo. Of place of occurrence (Exh. P . 0). On 11-4-2004, Nadeem alias Deemu, appellant while in police custody made a disclosure and then led to the recovery of gun .12 bore (P-1) along with 12 live cartridges (P-2) which were taken into possession vide recovery memo (Exh.PG). After completion of investigation he challaned the accused to face trial.
7. At trial charge was framed against the accused to which they pleaded not guilty and claimed to be tried. After framing of charge, the prosecution produced as many as 17 witnesses to prove the charge against the appellants. Out of them Mujtahid Aslam, complainant P.W.13 provided ocular account, Muhammad Arif P.W.4 and Khalid Pervez P.W.5 provided the evidence of extra-judicial- confession whereas. Dr. Israr-ul-Haque (P.W.1) provided the medical evidence.
8. After the prosecution evidence the appellants were examined under section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence and pleaded their false implication by the police to show efficiency.
9. At the end of trial, the learned trial Court convicted and sentenced the appellants as noted above.
10. Learned counsel for the appellants contends that this case was registered against unknown persons who were statedly having muffled faces and were not known to the complainant; that accused were not traceable, therefore, file was consigned to the record room; that the police cooked up a false story that on 14-3-2004 the appellants along with one Mst.Seema Bibi had come to Muhammad Arif (P.W.4) who was nephew of the deceased and Khalid Pervez (P.W.5) who was also their relative and made extra-judicial confession before them which is un-believable as no reason for making such extra judicial confession has come on record. Further contends that no crime empty was recovered from the place of occurrence so the recovery of gun from the appellant Nadeem has got no legal value. Learned counsel further contends that the matter was reported after 10 hours and even then the names or descriptions of the accused were not mentioned by the complainant; that while appearing in the witness-box Muhammad Arif (P.W.4) stated that only Imran alias Hero, appellant made an extra judicial confession regarding the present occurrence whereas Khalid Pervez (P.W.5) appeared in the witness box and stated that Nadeem alias Deemu, appellant made extra judicial confession regarding the present occurrence.
Learned counsel contends that these material discrepancies in the statements of prosecution witnesses makes the prosecution story highly doubtful; that identity of the appellants is not established especially when the F.I.R. Was registered against unknown persons in which it was mentioned that the accused were having muffled faces; that only one fire arm injury was found on the body of the deceased by the doctor who conducted the postmortem examination and nothing was recovered underneath the injury and there was no exit wound, so even the kind of weapon is not established from the prosecution case; that four persons were involved in the present case for only one fire-arm injury on the person of the deceased; that the whole prosecution case is based on the statements of witnesses of extra judicial confession, no reason for making extra judicial confession has come on record; that the appellants were not shown as accused in the investigation and the case was consigned to the record room thereafter there was no reason for the appellants to make extra judicial confession regarding the case which was untraced. Learned counsel contends that Mst. Seema Bibi who produced the appellants before the witnesses for extra judicial confession was neither shown as accused nor appeared as witness and as such extra judicial confession becomes further doubtful; that P.W.9 was the son of the deceased and on his statement the investigation against the appellants were started after one and half year and he based his information on the statements of P.W.4 and P.W.5; P.W.4 stated that Imran made extra judicial confession whereas P.W.5 stated that Nadeem made before them; that such extra judicial confession has no legal value and has to be kept out of consideration while deciding the case.
Learned counsel contends that it is the prosecution case that the place where the occurrence took place was pointed out by the appellants while in police custody but in consequence of this information provided by the appellants to the police nothing was recovered as such same information is not admissible as it does not come within the purview of Article 40 of the Qanun-e- Shahadat Order, 1984 and that this is a case of no evidence and as such the appellants are entitled to be acquitted.
11. On the other hand, learned Deputy Prosecutor-General states that there is evidence of independent witnesses against the appellants; that there is no reason for them to falsely implicate the appellants in the present case; that the whole proceedings started after extra judicial confession made by the appellants before P.W.4 and P.W.5; that recovery of gun has been affected from Nadeem alias Deemu, appellant which goes in favour of the prosecution; that non-recovery of crime empty from the place of occurrence is a circumstance which can be fully explained by the fact as only one fire was made; that the appellants are previous record holders and as such they are not entitled to any leniency.
12. We have heard the arguments of learned counsel for the parties and have also gone through the record.
13. In this case the occurrence took place on 4-9-2002 at 4-00 a.m. In the dark hours. The matter was reported to the police at 2-30 p.m. On the same day i.e. After delay of 10 hours by Muhammad Mujtahid Aslam (P.W.13) who was statedly conductor of the truck whereas Abdul Ghafoor, deceased was driver of the truck.
14. In the F.I.R. It was stated that four unknown persons gave a signal to stop the truck which was being driven by Abdul Ghafoor. When he did not stop the truck, one of the accused fired at him with his weapon in consequence of which he received injury on his forehead. All the four accused could not be identified as they had muffled their Faces. The injured was shifted to DHQ, Hospital, Sheikhupura from where he was referred to Mayo Hospital, Lahore and the case was registered at 2:30 p.m. On the statement of Mujtahid Aslam (P.W.13).
15. It is the prosecution case that on 14-3-2004 after 1-1/2 years the appellants along with one Mst.
Seema Bibi went to Muhammad Arif (P.W.4) and Khalid Pervez (P.W.5) and made extra-judicial confession stating therein that they be got forgiveness from the legal heirs of the deceased. They also narrated the whole occurrence. Muhammad Arif (P.W.4) stated that Imran, appellant informed them about the occurrence whereas Khalid Pervez (P.W.5) stated that it was Nadeem, appellant who informed the whole occurrence. Khalid Pervez (P.W.5) further stated that Nadeem, appellant informed that he fired at the deceased with .30 bore pistol. Both these witnesses informed Muhammad Yaqoob Shaheen (P.W.9), son of the deceased who made application to the police and proceedings were initiated against the appellants. The appellants were arrested on 7-4-2004.
The appellants except Nadeem appellant got recovered weapons in another case F.I.R. No.102 of 2004 registered under sections 399/402, P.P.C. Nadeem, appellant got recovered .12 bore gun while he was in police custody in the present case on 11-4-2004.
16. The prosecution has also brought on record a document regarding the pointation of the place of occurrence by the accused made in the presence of the witnesses on 9-4-2004 which was signed by Manzoor Hussain (P.W.14) and Muhammad Yaqoob Shaheen (P.W.9). Nothing was recovered in consequence of this pointation by the accused while they were in police custody at that time. Non-recovery of any thing in consequence of the disclosure made by the appellants is un-consequential and such a circumstance does not come within the ambit of Article 40 of Qanun-e-Shahadat Order, 1984 and as such is not admissible.
17. In the present case the only evidence available with the prosecution is the extra-judicial- confession made by the appellants before Muhammad Arif (P.W.4) and Khalid Pervez (P.W.5) after 1-1/2 year of the. Occurrence. According to the prosecution, the appellants went to these witnesses to make extra-judicial-confession along with one Mst. Seema Bibi but she was not shown as accused and was not produced in the Court as witness. The matter regarding extra-judicial- confession made by the appellants after delay of 1-1/2 years is not natural. Even if the statements of P.W.4 and P.W.5 are read together there are certain contradictions which create doubt in their statements! Muhammad Arif (P.W.4) stated that it was Imran, appellant who informed him regarding the commission of present occurrence whereas Khalid Pervez (P.W.5) stated that it was Nadeem, appellant who informed him regarding the commission of present occurrence. Nadeem, appellant confessed that he was armed with pistol but during investigation, he got recovered .12 bore gun stated to have been used in the same occurrence.
18. 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 (i) to boast of (ii) to ventilate the suffocating conscience and (i.e) to seek help when actually trapped by investigation. Boasting of 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."
It was held that such extra-judicial confession alone is not sufficient for conviction. In the present case, the prosecution could not bring on record an iota of evidence to show that the witnesses before whom the appellants made extrajudicial-confession were previously known to the appellants or how they approached them or they were enjoying a good status in the area. Thus, the said joint extra-judicial confession is not sufficient for maintaining the conviction of the accused especially in the charge of capital sentence.
19. Admittedly in the F.I.R. It was stated that the accused were unknown. It was mentioned that they were having muffled faces and for that reason they were not identified. In the F.I.R., no kind of weapon was mentioned. It was stated that only one of the accused fired with his weapon which resulted in the injury on the forehead of the deceased. There is no medico legal report of the deceased to indicate as to who took him to the hospital. He died later on at 1-10 p.m. In Mayo Hospital, Lahore; Postmortem examination of the deceased was conducted by the ' doctor who found a stitched wound on the forehead of the deceased. This fact indicates that he was provided medical and but the absence of medico-legal-report is also a circumstance which goes against the prosecution.
20. No crime empty was recovered from the place of occurrence. .12 bore gun was recovered from Nadeem, appellant. The doctor conducted the postmortem examination of the deceased and observed fracture of bone on mid part making shape of hole 1 cm x 1 cm. No lead or bullet was recovered underneath the injury. The kind of weapon could not be ascertained from the injury received by the deceased. The recovery of gun from Nadeem, appellant does not provide any strength to the prosecution case in the absence of any empty which could indicate that the injury was result of a fire made by .12 bore gun.
21. So far as Imran alias Hero, Muhammad Usman and Gharib Alam, appellants are concerned, no role of firing is attributed to them. The weapons recovered from them were in fact recovered in another case. So the same do not provide any corroboration to the ocular account. They never used the weapons in the present occurrence. In the F.I.R. The kind of weapon was not mentioned so in these circumstances the recoveries have got no value.
22. As discussed above, extra judicial confession was made after delay of 1-1/2 years is not worth relying. There are so many discrepancies in the statements of both the witnesses i.e. P.W.4 and P.W.5. In these circumstances, we are of the considered view that this is a case of no evidence at all. It is strange as to how.
23. Learned Additional Sessions Judge, Sheikhupura convicted and sentenced all the appellants on the basis of such like evidence. While considering all these aspects it can be said with certainty that the prosecution has failed to prove its case against the appellants and as such the appellants are entitled to clean acquittal. Accordingly the conviction and sentences of the appellants are not sustainable and the same are set-aside. All the appellants are acquitted of all the charges.
Resultantly Criminal Appeal No. 1585 of 2005 filed by Nadeem alias Deemu, appellant, Criminal Appeal No. 1408 of 2005 filed by Muhammad Usman and Gharib Alam, appellants and Criminal Appeal No. 1218 of 2005 filed by Imran alias Hero, appellant are accepted. The appellants shall be set at liberty forthwith if not required to be detained in any other case.
24.
23. Resultantly, death sentence 25. Awarded to the appellant, Nadeem alias Deemu is Not Confirmed and Murder Reference No.104 of 2006 is answered in E the Negative.