MAZHAR IQBAL SIDHU, J. This judgment will dispose of above captioned criminal appeals filed by Ummer Musthaq and Faisal Mushtaq appellants viz., first filed by a private counsel and the latter filed through Jail authorities as well as above captioned Murder Reference for confirmation of their death sentence or otherwise being, emanated from same . impugned judgment, who were convicted and sentenced by learned Addl. Sessions Judge, Bahawalpur in case vide F.I.R. No,286 of 2005 dated 2-10-2005 under sections 302/34/109/411, P.P.C. registered at Police Station Kotwali, Bahawalpur vide impugned judgment dated 31-1-2009. Following conviction and sentence was imposed on the appellant:--
(i) UMMER MUSHTAQ, APPELLANT Death sentence under section 302(b), P.P.C. as Tazir and to pay Rs,2,00,000 as compensation to the legal heirs of Muhammad Ashraf deceased under section 544-A of Cr.P.C. which shall be recoverable as arrears of land revenue, or in default thereof to further undergo S.I. for a period of one year.
(ii) FAISAL MUSHTAQ, APPELLANT Death sentence under section 302(b), P.P.C. as Tazir and to pay Rs,2,00,000 as compensation to the legal heirs of Mst. Mehnaz deceased under section 544-A of Cr.P.C. which shall be recoverable as arrears of land revenue, or in default thereof to further undergo S.I. for a period of one year.
Criminal Appeal No,57 of 2009 filed by Muhammad Anwar Baig against the acquittal of respondent No,2/co- accused namely Mst. Shehnaz for setting aside of impugned order and judgment dated 31-1-2009 to her extent, being emanated from same impugned judgment shall also be disposed of by this single judgment.
2. The facts in brief as disclosed by complainant Muhammad Aslam in F.I.R. (Exh.PA/1) are that he resides in Mohallah Qadirpura, Bahawatpur; his son Muhammad Ashraf (deceased) along with his family and his second son Muhammad Arshad and daughter Mst. Shazia are living in the ground floor while Mst. Shahnaz widow of Mushtaq Ahmad is living along with her children on the upper storey. He and his wife and son Muhammad Arshad were sleeping on the roof of upper storey. On 2-10-2005 at about 1-30 a.m. night, they heard voice of fire shot whereupon he and his son Muhammad Arshad came down and saw in the light of bulb that two unknown persons were making their good escape from the window towards the thoroughfare. On hue and cry, all the inhabitants of the house reached there and they saw Muhammad Ashraf and his wife Mst. Mehnaz had expired due to fire arms injuries on their heads. Both i,e, his son Muhammad Ashraf and his daughter in law (Bahu) have been murdered due to enmity. Hence, this case.
3. After lodgment of F.I.R. (Exh.PA/1), Jamshaid Akhtar Inspector proceeded to the place of occurrence along with police employees, inspected the place of occurrence, recorded the statements of two P.Ws. and prepared the injury statements of Muhammad Ashraf and Mst.
Mehnaz deceased. He also prepared the rough site plan Exh.PO and secured blood stained earth from the places where the dead bodies were lying, made the same into sealed parcels and took into possession vide memo. Exh.PB attested by the P.Ws. Thereafter, he sent the dead bodies along with inquest reports to BVH, Bahawalpur for post mortem examination through Bagh Ali 72/C and returned to the police station and delivered the sealed parcels to the Moharrar for safe custody in the Maal Khana. After the post mortem examination, Muhammad Waris constable handed over to him the last worn clothes of the deceased Muhammad Ashraf and Mst. Mehnaz i,e, Shalwar P-3, Shirt P-4, Dopatta P-5, Shalwar and Bunyan P-1 and P-2 which were taken into possession vide memo Exh.PD attested by the P.Ws. On 14-10-2001, he arrested appellant Ummer Mushtaq and Faisal Mushtaq. On 17-1012005, Ummer Mushtaq appellant led to the recovery of revolver P-6 and after unloading the same, two live rounds P-7, P-$ and an empty bullet were taken into possession vide recovery memo. Exh.PL attested by the PWs. He also prepared, the site plan of the place of recovery Exh.PL/1 and sent the separate complaint for registration of case under section 13 of the Arms Ordinance, 1965. He also prepared the sealed parcel of the recovered pistol which was deposited by him with the Moharrar of the Police Station. On 18-10-2005, appellant Faisal Mushtaq led to the recovery of gold chain P-9 belonging to Mst. Mehnaz deceased which was taken into possession vide memo. Exh.PM attested by the P.Ws. He also prepared the site plan of the place of recovery Exh.PM/1. On 19-10-2005, Faisal Mushtaq appellant led to the recovery of revolver .32 bore P-10 and two live rounds P-11, P-12 and empty bullet P-13, made the same into sealed parcel and took into possession vide memo. Exh.PN attested by the P_Ws. He also prepared site plan of the place of recovery Exh.PN/1 and sent a written complaint for registration of case under section 13 of the Pakistan Arms Ordinance, 1965 against Faisal Mushtaq appellant. On 28-10-2005, he arrested Mst. Shehnaz (since acquitted). He also recorded the statements of all the P. Ws.. under section 161, Cr.P.C. state-wise. He also got prepared scaled site plan Exh.PC. After completion of investigation,, challan was submitted against the appellants and his co-accused to face the trial.
4. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellants as well as their co-accused to which they did not plead guilty and claimed trial. Thereafter, the prosecution was asked to lead evidence in order to prove its case.
5. At the trial, the prosecution in order to prove its case produced 21 wit nesses in all out of them 20 witnesses were examined as P.Ws. while 01 witness was examined as CW.
The medical evidence was adduced through the statement of lady doctor Tabassam Jabeen (P.W.12) who conducted post mortem examination on the dead body of Mst. Mehnaz (deceased) wife of Muhammad Ashraf on 2-10-2005 at 5-00 p.m. and observed as under:-- INJURIES.
(i) An oval penetrating wound .8 cm x .6 cm blind deep with black margin and tattooing' around on left temporal region 3 cm infront of upper part of left ear (entry wound).
(Remarks)
After thorough external and internal post mortem examination of the dead body, she was of the opinion that injury No,1 causing fracture of left temporal bone, brain damaged along with haemorrhage leading to acute haeurogenic shock leading to comma and death was sufficient to cause death in ordinary course of life. Injury No,1 was ante mortem in nature and caused by fire arm weapon. However, sample of brain, stomach with contents, piece of small and large intestine.
Liver-piece, spleen and kidney were taken and preserved and were sent to chemical examiner for detection of any poison along with qualitative and quantitative analysis swabs of high vaginal and paneral swa bs taken preserved and sent to chemical examiner for detection of semen and the director Centre of Excellence Molecular Biology for DNA typing. Final opinion regarding poisoning sexual assault and DNA typing will be given after receiving reports from different corners.
The probable time between the injuries and death was immediate and between the death and post mortem was 12 to 14 hours.
Exh.PE is the correct carbon copy of the post mortem examination report of deceased Mst. Mehnaz and diagram Exh.PE/1 bore his signatures. X-ray films two in number Exgh.PE/2-3 also bore her signature.
Exh.PF/1 is the inquest report which also bore his signature. Exh.PF is the injury sheet prepared by the police, also bore his signature. Report of chemical examiner dated 13-12-2005 is Exh.PG. According to the same, poison is not detected in the above viscera. The above swabs were not stained with semen.
(ii) The medical evidence was also adduced through the statement of doctor Nawazish All Sherazi, MO (P. W.13) who conducted post mortem examination on the dead body of Muhammad Ashraf (deceased) son of Haji Muhammad Aslam on 2-10-2005 at 5-30 P.M. and observed as under:- INJURIES.
(i) There was an oval shaped lacerated wound 0.6 cm x 0.8 cm on right parieal-occipital region 3 cm above and posterior to upper border of right ear X blind deep, with black margins and tattooing around.
(Remarks)
After thorough external and internal post mortem examination of the dead -body, he was of the opinion that Injury No,1 causing fracture of left parieto-occipital bone, brain damage along with hemorrhage leading to acute haeurogenic shock leading to comma and death was sufficient to cause death in ordinary course of life. Injury No,1 was ante mortem and was caused by fire arm weapon.
The probable time between the injuries and death was immediate and between the death and post mortem was 12 to 14 hours.
Exh.PH is the correct carbon copy of the post mortem examination report of deceased Muhammad Ashraf and diagram Exh.PH/1-2 same bore his signatures. Two X-ray films Exh.PH/3-4 also bore his signature. Exh.PK is the inquest report which also bore his signature. Exh.PJ is' the injury sheet prepared by the police, also bore his signature.
Learned DDPP renounced P.W.1. namely Muhammad Aslam as he was re-summoned on the application of the prosecution and after tendering in evidence report of Chemical Examiner regarding blood stained earth Exh.PQ, Exh.PR, report of Forensic Science Laboratory, Lahore Exh.PS and report of Serologist Exh.PT and other report of Serologist Exh.PU, closed the prosecution case.
Then the statements of the appellants were recorded under section 342, Cr.P.C. wherein they negated the charge and professed their innocence. However, after conclusion of the trial, appellants were convicted and sentenced as mentioned above by the learned trial Court while remaining accused was acquitted.
6. In support of this appeal, it has been argued that murders were committed by unknown persons and during investigation false evidence was collected by the police by way of last seen evidence as well as joint extra judicial confession, recovery of weapons and false report of the same. It has further been maintained that evidence produced, by the prosecution does not prove the case against appellants whereas statement of CW.1. Mst. Shehza Malia is worthless on the ground that when the occurrence took place, she was of the age of about 11 years and when, her statement was recorded, she was found to be of the age 15 years and till recording of statement before court i,e, on 19-1-2009, she never made any statement before any authority in writing or verbal and her evidence has been brought on record by way of surprise to the defence and even otherwise her statement is liable to be thrown out of consideration on account of non-corroboration of the same by way of independent evidence. It has further been argued that false evidence of empties has been manoeuvred and fake report has been procured from the office of Forensic Science Laboratory, Lahore in collusion with the complainant party in order to beef up prosecution case and it has also been argued that empties as well as weapons allegedly recovered from the appellants were sent together on 15-12-2005. In these circumstances, the report is dubious and at the culmination of arguments, acquittal has been prayed by learned counsel for the appellants.
7. Leaned counsel for complainant Muhammad Aslam ingenuously has not opposed the appeal of the appellants whereas learned counsel appearing on behalf of legal- heirs of feminine deceased Mst. Mehnaz has opposed the appeal and has defended the impugned judgment and order.
However, learned D.P.-G. after consulting record has not been able to controvert the arguments of learned counsel for the appellants.
8. We have heard pro and contra - arguments in this case.
9. According to prosecution case, occurrence took place in the night between 1/2-10-2005 at about 2-30 AM during dark hours of night and F.I.R. lodged on the same night at about 3-15 A.M. (night) against two unknown persons. During investigation, statements of two P.Ws. i,e, Muhammad Imran examined as P.W.10 and Muhammad Sajjad as P.W,1 1 were recorded, according to the same, they allegedly saw the appellants holding pistols at the relevant time in front of the house of the deceased party and thereafter P.Ws. left that place without having any suspicion against the appellants, then again Mst. Shehnaz examined as P.W.5 and Anwar ul Haq examined as PW.6 were recorded with ,respect to extra judicial confession of the appellants and her co-accused Mst.
Shehnaz (since acquitted) to the effect that Mushtaq Ahmad father of the appellants as well as consort Mst. Shehhaz Bibi was got murdered by male deceased namely Muhammad Ashraf by way of necromancy (Jaadu Toona). ,During trial CW-1 was examined and according to her, she allegedly witnessed the occurrence as she was, present at the place of occurrence. So far as motive introduced in this case is concerned, it does not appeal to reasons because record is silent about the same. About this face that Mushtaq Ahmad father of the appellants was done to death by way of incantation and withal no prosecution was ever demanded by the appellants for death of their father by any means or at any forum. According to prosecution's own case, it is blind occurrence and statements of P.W.10 and P.W.11 do not help the prosecution because at the relevant time the appellants were seen alone in the street during night time and from their just presence it cannot be construed either they had come there to commit any occurrence or they after the commission of occurrence were standing there. The deceased persons were not seen there in the company of the appellants, therefore, this piece of evidence does not -advance prosecution case. Moreover, <u>"Pre-requisites for believing last seen evidence are that proximity of time and nearness of the place of occurrence Interpreting these two principles, it is, required that deceased shall be seen in the company of, the accused by the P.Ws. some short time before happening of the incident and the place of murder may not be far away from the place of lastly seen by the P.Ws. to the deceased in the company of the accused".<u/> In this case these two elements are missing. Therefore, evidence of last seen is disbelieved.
10. So far as evidence of P.Ws, of extra judicial confession examined as P.W.5 and PW.6 respectively is concerned, they have categorically made statements that appellants along with their mother (since acquitted) came together in the house of the PWs, then made confessional statement describing to have committed the murder of deceased persons. Evidence of extra judicial confession lackS its intrinsic values and its essential ingredients for constituting confession. P.Ws. in their statements have not described that how, when and by which mean, both the deceased were done to death by the appellants. Here, it is remarked to write some words about the confession <u>"confession 'means volunteer admission by a culprit before a reasonable person by detailing happening of the incident including its motive and the same statement shall constitute application of penal sections and the same may coincide with the facts and circumstances of the prosecution case".<u/> Statements of the P.Ws. are worthless in this case being' joint one and even if it may be said that one after the other appellants made their respective statements during the same sitting in presence of co-accused as to the commission of the murder of the deceased persons, these are also inadmissible in evidence in view of the law laid down in cases titled The State v. Kamal Khan alias Maloo and another (1993 SCM R 1378):-- Sections 302/34, 459, 460 and 382---Special Courts for Speedy Trials Ordinance (XXV of. 1991), S.13- --Criminal Procedure Code (V of 1998), S. 164---Qanun-eShahadat (10 of 1984), Art.43--- Appeal against acquittal--Extra-judicial confession allegedly made by accused being a joint confession could not be used against either of them---Recovery evidence even if accepted as correct could not advance the prosecution case--- Appeal against acquittal of accused by Trial Court was dismissed in circumstances.
Muhammad Amjad and 2 others v. The State (2001 PCr.LJ 1877):---
(c) Joint confession or confession in presence of another accused--- Evidentiary value---Joint confession by accused or confession of accused made in the presence of another accused is of no value and no reliance can be placed upon it.
Shirimati Seetab v. The State (1988 PCr.LJ 939)
(1) Art. 37---Extra-Judicial Confes-sion---Evidence of weakest type-- And Muhammad Shafique alias Chheela and another v. The State (1998 M LD 299):--- (b)---S.302/34---Qanun-e-Shahadat (10 of 1984), Art.37---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)--- Appreciation of evidence---Extrajudicial confession-- -Evidence of extra judicial confession is not strong evidence like that of judicial confession made before a Magistrate.
11. As far as evidence of CW.1 Mst. Shehza Malia is concerned, we are afraid to consider her statement in this case for keeping reliance upon the same on the ground that CW at the time of occurrence was about 10/11 years of age and in the current situation any chap of this age may have sense of understanding and if she had witnessed the occurrence then why she did not appear before I.O. when he (I.0) came at the place of occurrence for inspecting place of occurrence and other proceedings in this case. We have also noted from her evidence that for a longish period i,e, 4-1/2 years, she remained mute and did not disclose before any person about the happening of the incident or had seen the incident. During cross-examination, CW.1 has unequivocally acknowledged that prior to the making of her statement before court on 19-1-2009, she never made any statement before any authority. It is difficult to believe CW-1 who has made a statement at a very belated stage without assigning any reason for its delay, the same is hazardous to rely upon such statement against the accused persons in the capital charge. In these circumstances, therefore, we disbelieve the same and is thrown out of the consideration.
12. At the last, evidence of recovery of crime weapons as well as positive report of Forensic Science Laboratory is left to be discussed. Although we feel no need to discuss the same as evidence of substantive nature having been produced by the prosecution by way of circumstantial evidence as well as ocular evidence has not been believed by us, notwithstanding we have felt appropriate to discuss the same. No spent crime empty was taken into H possession from the spot. However, while recovering crime weapons i,e, from appellant Ummer Mushtaq on 17-10-2005 and from Faisal Mushtaq on 19-10-2005 vide separate memos. Exh.PL and Exh.PN respectively along with alleged crime weapon, two live as well as one spent crime empty were found in the chambers of the said weapons and the same were sent to the office of Forensic Science for analysis. Report of F.S.L, Lahore speaks that parcels were received in the said office on 5-12-2005. It is vivid from the record that parcels were dispatched at a belated stage I in the office of F.S.L, Lahore, its reasons may be any but rules require that every parcel is required to be sent to the concerned office as early as possible, therefore, in these circumstances, the report of Forensic Science Laboratory is not liable to be believed. So far as recovery of chain of gold is concerned, the same is also inconsequential.
13. For what has been discussed above, prosecution has miserably failed to prove its case against appellants Ummer Mushtaq and Faisal Mushtaq, therefore, instant appeal is allowed.
Consequently, their conviction and sentence are set aside and they are directed to be set at liberty forthwith if are not required in any other case. Murder Reference transmitted by the learned Addl.
Sessions Judge, Bahawalpur under section 374, Cr.P.C. is answered in negative.
14. So far as appeal filed by Muhammad Anwar Baig appellant against order of acquittal of respondent No,2 Mst.. Shehnaz is concerned, as we have decided Murder Reference of Ummer Mushtaq and Faisal Mushtaq appellants in negative so for the reasons mentioned above, this appeal against acquittal is dismissed,
15. As far as Criminal Appeal No,40-J of 2009 filed by appellants Ummer Mushtaq etc. through jail authorities is concerned, since their appeal filed through a private counsel has been accepted and they are acquitted, therefore, this appeal has become redundant and the same is disposed of accordingly.
16. Case property shall be disposed of in accordance with law but after the afflux of period of appeal, if, any. The record of the trial court shall be remitted immediately.