MUHAMMAD HASHIM KHAN KAKAR, J.---The Additional Sessions Judge, Usta Muhammad vide judgment dated 31st December, 2010 has convicted and sentenced appellants Shafi Muhammad and Akbar under section 302(b) read with section 147 and 148 of the P.P.C. To suffer life imprisonment each as Ta 'zir and to pay compensation of Rs.50,000 each to the legal heirs of deceased, as provided under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellants.
2. Briefly stated the facts of the case are that on 7th February, 2010 at about 9-00 a.m., a case vide crime No.15 of 2010 (Exh.P/1-B), under section 302 read with sections 147 and 148 of the P.P.C. Was registered at Police Station City, Usta Muhammad District Jaffarabad on the basis of Fard-e-Bayan Exh.P/1-A of complainant Juma Khan (P.W.1). It was alleged by the complainant that on above date, he, along with his son Mian Bakhsh, nephew Hadi Bakhsh and cousin Ali Nawaz, was sleeping at Kheerthar Canal. At about 1-30 a.m., five unknown persons, duly armed with deadly weapons, came there and awoke Ali Nawaz and Hadi Bakhsh. In the meantime, complainant and his son Mian Bakhsh also woke up. The accused persons threatened his son Mian Bakhsh that they will not leave him alive, at which, he, due to fear, started running and the accused persons started indiscriminate firing upon him, due to which, he, after receiving bullet injuries, expired at the spot and accused persons ran away from the crime scene. It was further alleged that in the light of bulb of tractor, they saw the accused persons, who can be identified on appearance. Consequently, the aforesaid case was registered.
3. After registration of the F.I.R. Exh.P/1-B, investigation of the case was entrusted to P.W.9 Peer Bakhsh, S.-I., who visited the place of occurrence, prepared site inspection note and sketch, recorded statements of witnesses, prepared inquest report, sent the corpse to civil hospital for examination, secure blood-stained earth, collected five empties of Kalashinkov and five empties of TT pistol vide memos and prepared its sealed parcels from the spot. Thereafter, he went to hospital, where the doctor concerned handed over him the blood-stained clothes of deceased. He obtained postmortem examination report and the dead body was handed over to his heirs. On 12th February, 2010, P.Ws. Abdul Rashid and Abdul Majeed submitted their affidavits, wherein they implicated the accused persons Shafi Muhammad, Akbar, Muhammad Ramzan, Dost Muhammad, Muhammad Arif and an unknown person, on the basis whereof, he arrested the accused persons Muhammad Shafi and Akbar. On 17th February, 2010, upon disclosure of accused persons, prepared disclosure memos and recovered crime weapons from their houses on their pointation. After recovery proceedings, on 18th February, 2010, the identification parades of the accused persons were carried out through witnesses and identification parade forms were prepared. The crime articles were sent to FSL, Quetta and Karachi for analysis and the accused persons were remanded to judicial custody. He placed the papers before IP/SHO Yasin Jamali, who Prepared incomplete challan and after receiving experts' reports, supplementary challan was prepared and the accused persons were sent up to face the trial.
4. On the stated allegations, Charge was framed and read over to the appellants on 27th April, 2010, to which they pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced nine witnesses. P.W.1 Juma Khan is complainant of the case and produced his Fard-e-Bayart Exh.P/1-A, F.I.R. Exh.P/1-B and affidavit Exh.P/1-C. P.W.2 Ali Nawaz alleged to have witnessed the occurrence. P.W.3 Abdul Majeed and P.W.4 Abdul Rasheed produced their affidavits as Exh.P/3-A and Exh.P/4-A, nominating the accused persons to be the culprits. P.W.5 Dr. Zafar Ali Samejo, Medical Officer, Civil Hospital, Usta Muhammad, has examined the dead body of deceased and issued postmortem examination report Exh.P/5-A. P.W.6 is Khawand Bakhsh, DSP, in whose presence the identification parade was conducted Exh.P/6-A. P.W.7 Ejaz Ahmed, constable, is recovery witness and produced site inspection memo Exh.P/7-A, memo of bloodstained earth Exh.P/7-B, memo of five empties of Kalashnikov and five empties of TT pistol Exh.P/7-C and blood- stained clothes of deceased Exh.P/7-D. P.W.8 Deedar Hussain, constable, is witness to the alleged disclosure of the accused persons and produced disclosure memos Exh.P/8-A and Exh. P /8-B as well as recovery memos of TT pistols Exh. P/8-C and Exh. P/8-D, whereas P.W.9 Peer Bakhsh, S.-I., is the Investigating Officer of the case. Then the prosecution closed its side.
5. Thereafter, the appellants were examined under section 342, Cr.P.C., wherein they denied the prosecution accusation and claimed to be innocent, however, they did not opt to record their statements on oath as envisaged under section 340(2), Cr.P.C., nor produced any witness in defence. The trial Court, after close of parties' evidence, vide impugned judgment convicted and sentenced the appellants, as mentioned hereinabove, hence this appeal.
6. Learned counsel for the appellants, Mr. Nasir Marri, Advocate, contended that the prosecution had failed to prove its case against the appellants beyond any shadow of doubt. He argued with vehemence that the occurrence is unseen and that statements made by the so-called eyewitnesses did not inspire confidence. P.W.1 complainant Juma Khan and P.W.2 Ali Nawaz had failed to bring anything on the record to substantiate their claim of being present at the time of occurrence. He further submitted that the F.I.R. Has been lodged after unexplained delay, that too against unknown culprits. There is contradiction between ocular account and medical evidence.
He lastly contended that the ocular account, regarding extra judicial confession, furnished by P.W.3 Abdul Majeed and P.W.4 Abdul Rasheed, also did not inspire confidence and both the witnesses seemed to be planted one.
7. On the other hand, Mr. Kamal Khan Kakar, Advocate, representing the State, submitted that the prosecution had successfully proved the guilt of the appellants. The ocular account, furnished by P.Ws. 1 and 2, had found ample corroboration and support from the other pieces of evidence produced by the prosecution. The ocular account is also corroborated by the recovery of crime weapons, effected from the possession of appellants on their pointation from their houses situated at Goth Juma Khan.
8. So far as the factum of murder of Mian Bakhsh is concerned, the defence has not disputed the same. The fact, Mian Bakhsh died as a result of fire arm injuries, is further proved by the evidence of P.W.5 Dr. Zafar Ali Samejo, Medical Officer, who conducted the postmortem examination of dead body of deceased Mian Bakhsh and found two firearm wounds, one entrance wound on left side of the chest and the other exit wound on right side of the chest laterally. According to the Medical Officer, the injuries were ante-mortem and homicidal in character and the death was caused due to damage of the vital organs.
9. The connection of the accused with the crime is sought to be established by the evidence of P.W.1 Juma Khan and P.W.2 Ali Nawaz. All the witnesses i.e. P.W.1 Juma Khan, P.W.2 Ali Nawaz, P.W.3 Abdul Majeed and P.W.4 Abdul Rasheed, are closely related to each other and are, admittedly, inimical to the appellants. P.W.1 Juma Khan is father of deceased Mian Bakhsh, while P.W.2 Ali Nawaz is the paternal uncle of deceased. After going through their evidence, we have no hesitation in observing that the eye-witnesses have failed to inspire our confidence. Admittedly, the occurrence had taken place in odd hours of the night at about 1-30 a.m. And both the alleged eye- witnesses had stated in a categorical manner that at the time of occurrence, they could not identify the culprits due to complete darkness, while on ,the other hand, the identification parade was conducted through the said witnesses, who have, pointed out the appellants as murderers of deceased Mian Bakhsh. In our opinion, it is a textbook example of approbate and reprobate. The evidence of the alleged eye-witnesses, in view of their inter se relationship and their contradictory version, cannot be believed without independent corroboration on material particulars. Needless to mention here that one piece of tainted evidence cannot corroborate another piece of tainted evidence.
10. The next piece of evidence has been furnished by P.W.3 Abdul Majeed and P.W.4 Abdul Rasheed regarding the extra-judicial confession made by the appellants in their presence at the fateful night. Both the said witnesses had maintained that on 7th February, 2010 at about 1-00 a.m., after having heard gunshots, they took out their tractor and drove it towards the field of Juma Khan, complainant, and saw five men, armed with Kalashnikov and TT, pistols, in the light of their tractor, including Shafi Muhammad, Akbar, Arif, Dost Muhammad and another unknown person, who told that they murdered Mian Bakhsh and warned them to stay back. It is established that extra judicial confession, being a weak type of evidence, cannot be made basis for conviction in a case of capital charge, unless corroborated by some other tangible piece of evidence. It should be free from infirmity made under the circumstances, which are found to be reliable. The ocular account, furnished by these witnesses, who also belong to the "Baradari" of complainant, is neither straightforward, nor confidence-inspiring. They have disclosed the names of appellants, five days after the incident, through their affidavits, submitted before the Investigating Officer. Had they seen the appellants at the fateful night, they could disclose the names of culprits at the earliest opportunity, but it is very strange to note that they kept mum for five days. We are of the considered view that there was no occasion and reason with the appellants to confess their guilt before the said witnesses. Usually, in the normal course of nature, an offender choosing night time for commission of an offence, necessarily wants to keep his identity concealed. Thus, the culprits choosing the cover of night for killing of deceased would surely have no reason to confess before private persons immediately after the occurrence. Even otherwise, the extra judicial confession, allegedly, made by the appellants, being a joint confession, was inadmissible in evidence and no reliance can be placed on such inadmissible piece of evidence at all.
11. Regarding the identification parade, P.W.6 Khawand Bakhsh, DSP, Usta Muhammad, appeared in witness box and deposed that on 18th February, 2010, he was present in city police station, Usta Muhammad. In his presence, the identification parade of accused Shafi Muhammad and Akbar was made through complainant Juma Khan and Ali Nawaz, who had identified both of them to be the same persons, who, after committing the murder of deceased Mian Bakhsh, had fled away. We are of the opinion that the identification parade is absolutely of no avail to the prosecution for the reason that on one hand both the witnesses had deposed categorically that they could not identify the culprits due to pitch dark at the dead hours of the night, but on the other hand, surprisingly, pointed out the appellants as culprits. Needless to state here that both the appellants were not only known to the said witnesses previously, but were also nominated by names through affidavits submitted five days after the alleged incident.
12. Similarly, the medical evidence i.e. Postmortem examination report Exh.P/5-A, produced by P.W.5 Dr. Zafar Ali Samejo, Medical .Officer, Hospital, Usta Muhammad, is also being not in line with the ocular and marginal accounts. According to P.W.1 Juma Khan, firing was made upon the deceased from a distance of about 8 paces, while on the other hand, blackening was seen around the entrance wound and according to the said witness blackening can be seen, when firing has been made within the distance of about 3 - 4 feet. Even otherwise, the medical evidence in this case is not of much help to the prosecution, as the same cannot identify or locate the culprits of the offence in a case, where the presence of the eye-witnesses itself is found to be doubtful.
13. So far as the recoveries, allegedly, effected from the appellants during the course of investigation in the instant case is concerned, it had been effected after 10 days of the occurrence.
A prudent mind cannot believe that the appellants would be so naive/foolish as to keep their weapons for so long so as to facilitate their recovery from them. Even otherwise, joint recovery is not permissible under the law and could not be taken into consideration.
14. We are of the considered view that the recovery of crime weapons, expert's report and medical evidence by itself being evidence of purely of corroboratory nature, in the absence of any direct or substantive evidence, were not sufficient to bring home charge against the appellants. It is well established that unless substantive direct evidence is available, conviction cannot be based on any other type of evidence, howsoever, convincing it may be, reliance in this regard may be placed on a case reported in 1991 SCM R 643, wherein the Hon'ble Supreme Court of Pakistan was pleased to lay down as under:-- "The answer obviously is in the negative, we say because none of the pieces of evidence relied upon is a substantive piece of evidence and so long a substantive or direct evidence is not available no other type of evidence, howsoever, convinced it may be, can be relied upon or can firm the basis of conviction".
15. On a careful scanning of the entire evidence, we are of the opinion that the punishment awarded to the appellants is not sustainable under the law. In order to sustain a conviction on capital charge, evidence must come from independent and unimpeachable source, rather than tainted and inimical witnesses without any independent corroboration.
Vide short order dated 30th June, 2011, we had allowed the appeal, the impugned judgment dated 31st December, 2010 passed by the Additional Sessions Judge, Usta Muhammad was set aside and the appellants were acquitted of the charge and, were directed to be released from jail forthwith, if note required in other case and the above are the reasons of our short order.