Sh. Najam-ul-Hasan, J.--Shahid, appellant alongwith Khurshid and Rafaqat, co-accused was tried by a learned Addl. Sessions Judge, Faisalabad in case F.I.R. No, 269 dated 18.4.2003 under Sections 302/201/34 P.P.C. registered at Police Station Nishatabad, Faisalabad. At the conclusion of the trial, the learned Addl. Sessions Judge, vide-judgment dated 15.10.2004 acquitted Khurshid and Rafaqat, accused of the charge whereas convicted the appellant under Section 302(b) P.P.C. and sentenced him to suffer death on two counts. He was also directed to pay compensation of Rs, 50,000/- to the legal heirs of each deceased as provided under Section 544-A Cr.P.C. or to suffer six months S.I. on each count.
2. Feeling aggrieved by the conviction and sentence, the appellant has filed Cr. Appeal No, 87-J of 2006 through Jail whereas the State has approached 'this Court by way of Murder Reference No, 679 of 2004 seeking confirmation of death sentence on two counts imposed on him. Both these matters are being disposed of together through this single judgment.
3. The occurrence in this case took place 2/3 months prior to the registration of F.I.R. Ghulab Din and Mst. Bashiran Bibi, father and mother of Imran Hussain, complainant (PW.7) went missing and on foul smelling coming out of a room of the house, floor of the same was dug and dead bodies of both parents of the complainant were found buried there on which F.I.R. was lodged.
4. The prosecution story, in brief, as unfolded in the F.I.R. by the complainant is that they are three brothers and seven sisters. His brother Shaukat Ali was settled at Haroonabad alongwith his family where his other brother Khurshid lived at Daharahwala. It was alleged that After Eid-ul-Fitr the complainant went to Rawalpindi in connection with his job. He was telephonically informed by his sister that their father and mother were missing prior to Eid-ul-Azha. On receipt Of this information the complainant came, to home and felt bad odor spreading all around in their house. He alongwith witnesses dug floor of a room of the house and found putrefied dead bodies of both his parents buried there. The complainant cast doubts that they had been killed by Zahid and Shahid sons of Khurshid. Motive behind the killing was that the deceased had sold out some portion of their residential Ehata for which Shahid etc. used to demand their share but the deceased did not agree to the same for which they had been killed.
5. Lady Dr. Humera Perveen, P.W. 1 conducted post-mortem on the dead body of Mst. Bashiran Bibi.
The doctor observed the dead body at advance stage of purification with foul smelling. Maggots were found on it. The doctor observed the following injury on the body: 12 cm x 13 cm wound present on the right side of the neck from lower border of the mandible upto the shoulder joints. The . margins of the wound on the face were clearly cut.
The doctor observed major part of the body putrefied. The doctor opined that death had occurred due to haemorrhage and shock caused by the above injury which was ante-mortem, caused by sharp edged weapon and sufficient to cause death in the ordinary course of nature. Probable time which elapsed between injury and death was immediate and between death and post-mortem was 2/3 months.
6. Dr. Arshad Masood, PW.2 had conducted post-mortem examination on the dead body of Ghalab Din. He found the body putrefied with foul smelling. The doctor found the following injuries on the dead body:--
(i) A stab wound 2 x 1 cm on front at lower part of left side of the chest, 3 cm outer to mid-sternal line. The wound was penetrating into left chest cavity.
(ii) A stab wound 2 x 1 cm on front and upper most part of left side of the abdomen. It was penetrating into the abdominal cavity.
The doctor found all the organs of thorax and abdomen as also cranium and spinal cords putrefied.
The doctor opined that death had occurred due to hemorrhage and shock caused by Injury No, 1 which was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was within half an hour and between death and postmortem was 2 to 3 months.
7. Sajjad Hussain, Sub-Inspector, CW. 6 had conducted investigation of this case. On 18.4.2003 after receiving information about the occurrence he alongwith other police officials reached the spot and inspected dead bodies of Ghulab Din and Mst. Bashiran Bibi. After conducting formal investigation the investigator dispatched the corpses to the mortuary for autopsy. On'19.4.2003 Saleem and Zuffiqar, PWs. 5 & 6 appeared before him and made statements under Section 161 Cr.P.C. that the accused persons had made confession of the guilt before them. On 30.4.2003 he arrested Shahid and Khurshid. accused. On 2.5.2003 Shahid, accused while in custody got recovered chhuri (C.1) which was taken into possession by the investigator vide memo. Ex.CW.1/a-1.
After completion of investigation, the accused were challaned to Court to face trial. It may be mentioned here that Imran Hussain, complainant did not feel satisfied with the investigation of the case and filed a private complaint before the Area Magistrate which was forwarded to the learned trial Court. After cursory evidence, the learned trial Court commenced trial.
At commencement of trial, charge was framed against the accused to which they pleaded no guilty and claimed trial. The prosecution produced nine witnesses to prove its case against the accused. The complainant also submitted an application for summoning certain witnesses which was allowed and the learned trial Court summoned them as C.Ws. in order to arrive at a truth. The accused were also examined under Section 342 Cr.P.C. in which they dismissed, and denied each piece of prosecution evidence. Shahid, appellant claimed that it was a blind occurrence and implicated his false involvement due to enmity and family grouping by stating that he lived with his parents at Bahawalnagar and never visited his grand-parents (deceased of the case). The accused neither made statement under Section 340(2) Cr.P.C. nor produce evidence in their defence.
9. At the conclusion of trial, the appellant was convicted and sentenced as noted above whereas his co-accused were acquitted.
10.Learned counsel for the appellant has contended that it was a blind murder case; the deceased had been buried in their own house after murder and the same was known to none at least for 2/3 months; that the only evidence against the appellant is that of extra judicial confession made before Muhammad Salem and Zulfiqar Ahmad, P.Ws. 5 and 6; that there was no independent evidence available on the record; that the prosecution case was that the deceased had been administered some intoxication before, murder but according to the post-mortem report no such evidence was brought on record by the doctor; that alleged weapon of offence i,e, chhuri was recovered from the appellant after four months of the occurrence and the same was blood- stained which does not appeal to reason that the assailant would keep the weapon of offence so safe so as to be used against him by the prosecution as such the same cannot be relied upon; that in the FIR'. Shahid appellant alongwith his brother Zahid was implicated but later on the complainant filed a complaint in the Court of learned Area Magistrate in which he replaced Zahid with Khurshid and Rafaqat, therefore, the prosecution story is doubtful; that on the same evidence co-accused of the appellant were acquitted, as such he also deserves same treatment.
11.Conversely, the learned Addl. Prosecutor General contended that the parties are closely related to each other therefore there was no mala fide on the part of the complainant or the prosecution witnesses to falsely implicate the appellant; that the appellant and his co-accused made confession before the prosecution witnesses which was further corroborated by the evidence of Nanak PW.8 who deposed about the motive part of the prosecution story; that the prosecution story is further corroborated by the recovery of chhuri which was blood-stained and in the given circumstances, the appellant deserved to the capital punishment.
12.It was an un-witnessed killing. The prosecution case rests on different pieces of circumstantial evidence. We find it convenient to take up and examine each piece of circumstantial evidence separately.
13. The complainant deposed that he was at Rawalpindi when his sister Mst. Hamidan Bibi telephonically informed him about missing of their parents upon which he reached home which was locked from outside. He deposed that he broke open the door and entered the house. Foul smell was coming out from the residential house. He rang to his relatives Sardar Muhammad and Nazir (PWs. 3 and 4) and on their arrival they dug out the place of the room which was uneven. On seeing the dead bodies the police was informed. Sardar Muhammad PW.3 also appeared at trial.
He deposed that on seeing uneven earth he informed the police and on arrival of the police they dug out the earth and found dead bodies of Ghulab and Mst. Bashiran. Same was the statement of Nazir, PW.4. While lodging the F.I.R. the complainant had stated that on recovery of the corpses from the floor of the room he was going to the police station but met the A.S.I, on the way and lodged a report. At trial he changed his stance and deposed that the police was informed through telephonic message. Likewise the complainant raised a suspicion in the F.I.R. that the deceased had been done to death by Shahid and Zahid, accused sons of Khurshid. However, he filed a complaint in which he alleged that he had been told by Saleem and Zulfiqar that the deceased had been done to death by Shahid and Rafaqat accused. During the course of arguments, learned law officer was not in a position to own or disown any one of the conflicting versions of the complainant and the PWs. The contradictions in the statements of these witnesses have adversely affected the prosecution case.
14, The next circumstantial piece of evidence is extra judicial confession allegedly made by the accused before Saleem and Zulfiqar, PWs. 5 and 6. Saleem P.W. deposed that he alongwith Zulfiqar P.W. was present at Nallaywala regarding mourning of the deceased and were sitting inside the house alongwith others where accused Shahid, Khurshid and Rafaqat reached and fell on their feet. All the accused confessed that they had killed Ghulab Din and Mst. Bashiran Bibi. The P.W. further stated that Khurshid, accused had told the deceased were administered some intoxicant and then they were done to death. The accused asked for a pardon. He was corroborated by Zulfiqar, P.W.6 who further deposed that Khurshid accused also stated about the motive for killing.
We do not feel inclined to attach much importance to this piece of evidence for more than one reasons. Firstly, extra judicial confession is weakest type of evidence and needs strong corroboration. The P.Ws. admitted during cross-examination that they were sons-in-law of the deceased persons and thus were interested witnesses. Although they admitted that many other persons were also present at the time when the accused had made confession before them but the prosecution did not produce any of them. Secondly, these P.Ws. stated that the accused confessed before them that they had administered intoxicants before killing them. However, the doctor P.W. 2 who conducted post-mortem examination categorically stated that he did not observe any symptoms of poison or intoxication on the dead body. Thirdly, the P.Ws. did not state that the accused had confessed their guilt separately rather the P.Ws. deposed that the accused confessed their guilt meaning thereby that the accused made joint confession before the P.Ws. It is well established law that joint extra judicial confession is no confession in the eye of law. We therefore discard' this circumstantial piece of evidence from consideration as it would not be safe to place reliance on the extra judicial confession. Further-more, the accused were not so fool that they chose to confess their guilt before these P.Ws. in blind murder case.
15.The last piece of evidence was recovery of blood-stained chhuri. The alleged occurrence took place 2/3 months ,before registration of the F.I.R. which was lodged on 18.4.2003: Shahid, appellant was apprehended on 30.4.2003. Allegedly, he got recovered the blood-stained chhuri on 2.5.2003 from a house. It does not appeal to reason that instead of washing away blood from the blade of chhuri the accused chose to place it at a secret place intact so that it could be recovered and used against him as evidence. Furthermore it has been rightly pointed out by the learned counsel for the appellant that the same cannot be taken into consideration as the investigator did not recover the same through recovery memo. and the same had not been adduced in evidence.
16.Although motive is not an ingredient of every offence yet in the case in hand there must have been strong motive for the appellant to kill his own grand-parents. Although the prosecution produced evidence in the shape of Nanak, P.W. 8 to prove that the appellant and co-accused had threatened the deceased to give them portion of land for the price thereof or they will kill them and were demanding Rs, 35,000/-. But the prosecution did not adduce evidence to show that the deceased had sold out some portion of their house/Ehata prior to the present occurrence. Even otherwise the appellant/accused was/were not the sole descendent(s) and keeping in view the share of other descendants the amount falling to their share was not so exorbitant for which the appellant would have chosen to kill his grand-parents. Therefore, we find that the prosecution has also failed to establish any motive on the part of the appellant. It would not be out of place to mention here that it has not come on record that even a single, penny or any other valuables had been stolen or taken away by the appellant/accused from the house of the deceased.
17. Excepting the above discussed pieces of evidence the prosecution is not equipped with any other evidence. For the foregoing reasons we can safely conclude that the prosecution failed to prove the charge with cogent and convincing evidence.
18.We, therefore, accept Cr. appeal No, 87-J of 2006, set aside the impugned conviction and sentence imposed on Shahid, appellant by the learned trial Court and acquit him of the charge by giving him the benefit of doubt. He be set at liberty if not required to be detained in any other case.
19.Murder Reference No, 679 of 2004 is -answered in the negative.
20.Death sentenced recorded against the appellant on two counts is NOT CONFIRMED.