JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Safeer Hussain Shah son of Faqir Hussain, caste Syed, resident of Kama! Colony Mauza Kot Sai Singh, Tehsil District Jhang, appellant, was involved in case F.I.R. No.298, dated 23-4-2007, offence under section 302, P.P.C., registered at Police Station Saddar, Tehsil and District, Jhang, and was tried by learned Additional Sessions Judge, Jhang, who vide judgment dated 27-10-2009, convicted the appellant under section 302(b), P.P.C., and sentenced him to imprisonment for life with direction to pay Rs.50,000 as compensation under section 544-A, Cr.P.C, to the legal heirs of deceased and in default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C, was also extended in favour of the appellant. The judgment of the learned trial court has been assailed by the appellant through filing the instant appeal. Initially, the appellant was complainant of above mentioned criminal case later on Syed Ishfaq Ahmad Gillani, filed complaint against the appellant.
2. As per story of complaint, Exh.PA, complainant Syed Ishfaq Ahmad Gillani contended therein that Mst. Nabeela Ishtiaq was his niece. She was married with Safeer Hussain accused about 7/8 years ago and this wedlock gave birth to three children, who are alive. Thereafter relations between the spouses became strained and Mst. Nabeela Ishtiaq sent message to him that accused besides beating her, also threatened to kill her and they patched up the matter between the spouses. After receiving the information of the occurrence, the complainant along with Shafiq Ahmed Gillani and Syed Fayyaz Ahmad came to know that Safeer Hussain Shah along with two unknown persons had Committed the murder of Mst. Nabeela Bibi, who confessed his guilt that he had fired at his were due to strained relations. The accused beg pardon and also offered to compensate him. The accused became complainant of case F.I.R. No.298 of 2007, offence under 302, P.P.C.., registered at Police Station Saddar, Jhang in order to save his skin for the commission of murder of his were and lodged the said case against two unknown persons.
3. Liaqat Ali, S.-I. (P.W.12), inspected the spot, prepared rough site plan (Exh.PK) of the place of occurrence without scale. The Investigating Officer inspected the dead body and prepared injury statement Exh.PD, inquest report Exh.PF and sent the dead body for its autopsy through Muhammad Amin, constable. The Investigating Office secured blood-stained earth from the spot, which, was taken into possession vide recovery Exh.PL. After the postmortem examination, the said constable produced last worn clothes of deceased shalwar (P-2) and Kameez (P-3), which were taken into possession by the Investigating Officer vide recovery memo. Exh.PJ. On the direction of the Investigating Officer and pointing out of the P.Was., draftsman, prepared site plan of the place of occurrence as Exh.PC and. Exh.PC/1. The Investigating Officer recorded the statements of the prosecution witnesses under section 161, Cr.P.C. Thereafter investigation was conducted by Muhammad Afzal Inspector, S.H.O., who arrested the appellant Safeer Hussain on 12-6-2007 and the appellant during physical remand made disclosure and led to the recovery of pistol.3Q bore, which the Investigating Officer took into possession vide recovery memo Exh.PB.
4. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under section 173, Cr.P.C, to the court of competent jurisdiction, which was en- routed through Illaqa Magistrate as provided under section 190(2), Cr.P.C.
5. The learned Additional Sessions Judge, Okara, vide order dated 29-1-2008 formally charge- sheeted the appellant under section 302, P.P.C. The appellant pleaded not guilty and claimed trial.
Prosecution in order to substantiate its case, produced as many as 12 witnesses.
6. Ishtiaq Ahmad, P.W.1 who submitted complaint that Safeer is the mainstay of the occurrence, who had already got registered criminal case against two unknown persons. Liaquat Ali, S.-I.
(P.W.12) and Muhammad Afzal, Inspector/S.H.O. (P.W.9) are the Investigating Officers of the case while Muhammad Munawar Asif, Draftsman, prepared scaled site plan of the place of occurrence (Exh.PC and Exh.PC/1). Lady Dr. Misbahul Qamar, SWMO, District Headquarters Hospital, Jhang (P.W.7) had conducted the postmortem examination upon the dead body of Nabeela Bibi, deceased and found following injuries on her person:-- "(1) A firearm entrance wound 1.5 cm x 1 cm present on right cheek 2 cm to the right corner of lips.
Margins of this wound were inverted Tattooing was present on the face.
(2) A firearm exit wound 1.5 cm x 1 cm present on the back of right side of head Margins of wounds were inverted. Underlying occipital bone right pertial bone and base of scull was fractured Brain seriously injured.
(3) A firearm entrance wound 1.8 cm x 1.3 cm present on the present middle of right upper arm tattooing present on the right upper arm. Margins of wound ' were inverted
(4) 4 grazing wound 2.5 cm x 1 cm on the upper part of right forearm. Tatooing present on forearm."
After conducting postmortem examination, the doctor arrived at the following opinion:-- "Death in this case was caused by Injuries Nos.1 and 2 leading to severe shock and haemorrhage due to fracture of skull, bone and serious injury to brain, which was sufficient to cause death in the ordinary course of nature. All the injuries were ant-mortem and caused by firearm weapon: Probable duration between injuries and death was immediate and between death and postmortem examination was about.12 hours."
Statements of rest of the prosecution witnesses are formal in nature.
7. On 20-5-2008, the learned DDPP gave up Azhar Kainal, Shafique Ahmed and Zafar Shah P.Was., being unnecessary. Vide separate statement vide order dated 8-10-2009 the learned ADPP, after tendering report of Chemical Examiner Exh.PM, report of Chemical Examiner Exh.PN and report of Forensic Science Laboratory Exh.PO, closed the prosecution evidence.
8. Safeer Hussain, appellant was examined under section 342, Cr.P.C.
Wherein he opted neither to appear under section 340(2), Cr.P.C. As a witness of his on to disprove the allegations levelled against him nor to produce defence evidence. In response to the question why the case against him and why the P.Was. Deposed against him; the appellant made the following deposition:- "All the P. Was. Are related inter se and they have deposed against me due to enmity."
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on the record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant as stated above.
10. Learned counsel for the appellant submitted that the impugned judgment has been passed in a slipshod manner and the learned trial court escaped notice of most important aspect of the case that there is no eye-witness of the occurrence. Learned counsel further argued that it does not appeal to prudent mind that a person shall murder his on were from whom he had three kids.
Learned counsel next submitted that The whole prosecution case rests upon extra judicial confession and even statements of the prosecution witnesses of this account i.e. Syed Ishfaque Ahmed Gillani (P.W.1) and Fiaz Ahmed Gillani (P.W.4) are not confidence inspiring. Both the prosecution witnesses have not corroborated each other on salient features of their, version.
Learned counsel next submitted that it has come in the evidence of Fiaz Ahmed Gillani (P.W.4) that he even did not know qua the fact of recording of evidence of his brother. This shows that he had made a dishonest attempt to strengthen the prosecution version. Learned counsel further stated that motive is not proved as none of the prosecution witnesses was able to disclose the name of the woman with whom the appellant allegedly wanted to get married. Learned counsel went on arguing that the learned trial court while convicting the appellant has committed grave misreading and non-reading of prosecution evidence available on the record. Learned counsel vehemently contended that in this backdrop, the appellant is entitled to he extended the benefit of doubt and his ultimate acquittal of the charge.
11. On the other hand, learned D.P.-G. Has vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that the prosecution through leading cogent and confidence inspiring evidence has proved its case against the appellant beyond shadow of reasonable doubt. The motive is fully proved and the statements of the witnesses of extra-judicial confession are corroborated by each other. Learned D.P.-G. Next stated that the medical evidence fully substantiates the prosecution case. Moreover, learned D.P.-G. Argued, the appellant failed to prove any or malice of the prosecution witnesses, which were his very close relatives, to have falsely deposed against him. The appellant took the life of an innocent person; therefore, he deserves no leniency. Learned D.P.-G. Concluding arguments stated that the learned trial court while dealing each and every aspect of the case, has rightly convicted the appellant.
12. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant as well as learned Deputy Prosecutor-General.
13. There is no cavil to this proposition that initially the case was got registered by the appellant and subsequently, on the statement of Syed Ishfaque Ahmed Gillani, he was arrayed as an accused, as such there is no eye-witness of the occurrence. The prosecution case mainly rests on the statements of witnesses of extra judicial confession. The contention of learned D.P.-G. That if extra judicial confession is corroborated from an independent source, the same can be made basis while inflicting conviction upon any accused is based upon absolutely wrong notion of law.
Extrajudicial confession is always considered a very weak type of evidence, however, I must say that in the instant case, even the statements of prosecution witnesses of extra-judicial confession are at variance on the salient features. Scrutiny of testimony of Syed Ishfaque Ahmed Gillani (P.W.1) reflects that he nowhere mentioned in his A examination-in-chief that the appellant had made confession in the presence of Fiaz Ahmed Gillani (P.W.4). Similarly, it has come in the evidence of P.W.4 that he even did not know about recording of evidence of the complainant as P.W.1. Both the prosecution witnesses did not disclose the time and place when and where the appellant had confessed his guilt. Perusal of statement of Mst. Musarrat Parveen (P.W.5) also reflects that dates of earlier quarrels between the spouses have not been mentioned anywhere. In such circumstances of the case, evidence of the prosecution witnesses, who admittedly are interested witnesses being close relatives of the complainant, is not believable. It is also an admitted fact that nevertheless every prosecution witness has tried to state that the appellant wanted to get second marriage and that's why he committed the murder of Mst. Nabeela Ishtiaq, however, none of them could disclose the name of the woman with whom the appellant allegedly wanted to get married although specific suggestion was put to each of the prosecution witnesses. The motive as such has not been proved. So far as medical evidence is concerned, it is well-settled by now that the same is of corroboratory nature and when the main prosecution witnesses have failed to substantiate the prosecution version in a confidence inspiring manner, the medical evidence can lend no help to the prosecution version. Another aspect of the case is that Wedlock of the appellant and Nabeela/deceased gave birth to three kids, who have already lost the unmatched love and affection of their mother and now they are being deprived of the same at the end of their father.
14. Upshot of my above discussion is that the prosecution case is full of material contradictions/discrepancies especially in the testimony of complainant and Fiaz Ahmed Gillani (P.W.4), which shatters the prosecution case to the hilt, therefore, the prosecution ought to suffer.
Resultantly, the salutary principle of benefit of doubt is squarely required to be extended in favour of the appellant as a consequence whereof; Criminal Appeal No.425-J of 2009 is accepted in toto.
Conviction and sentence recorded in the judgment of the learned trial court passed on 27-10-2009 is set at naught. The appellant is directed to be released forthwith if not required in any other case..