SYED IFTIKHAR HUSSAIN SHAH, J. - Raashid' alias Pappi, Allah Ditta and Muhammad Hussain, appellants have filed the above-mentioned appeals separately against their conviction vide judgment dated 9.12.2004 passed by learned Additional District Judge-II, Chiniot, whereby Raashid alias Pappi (appellant) was convicted, under Sections 302(b)/149, PPC and has sentenced to death for the commission of murder of Akbar Ali, deceased with direction to pay Rs. 50,000/- as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C, or in default thereof to further undergo S.I. Six months; whereas Allah Ditta, and Muhammad Hussain appellants were convicted under Sections 302(b)/149, PPC and sentenced to imprisonment for life each with direction to pay compensation in the sum of Rs. 50,000/- each. To the legal heirs of the deceased or in default thereof to further undergo S.I. Six months each. All the appellants were also convicted under Sections 396/149, PPC and sentenced to 10 years' R.I. Each with a direction to pay fine of Rs.
10,000/- each to the legal heirs of the deceased or in default thereof to further undergo six months'
S.I. They were also convicted under Sections 148/149, PPC and sentenced to one year's R.I. Each. All the sentences were directed to run concurrently and convicts were also entitled to the benefit of Section 382- B, Cr.P.C. All the appellants have challenged their conviction and sentences before this Court through aforesaid criminal appeals which have been heard by us alongwith Murder Reference No. 23 of 2005 sent by the learned Trial Court under Section 374, Cr.P.C, seeking confirmation of death sentence awarded to Raashid alias Pappi appellant. We propose to decide all the aforesaid matters together through the present judgment.
2. The brief facts of the prosecution case as narrated in the F.I.R. (Ex.PG) lodged by Muhammad Siddique complainant (PW-4), real brother of Akbar Ali (deceased) are that in the night of 24.5.2003 he alongwith Muhammad Aslam and Ghulam Hussain was sleeping in their houses while Akbar Ali, deceased was sleeping on the road adjacent to their houses when at about 1.15 a.m. On hearing noise of fires, they rushed towards the road and saw that Akbar Ali, brother of the complainant was lying smeared with blood and three unknown persons while armed with firearms were standing near the cot of the deceased. The complainant and PWs raised lalkara and the assailants fled away by making aerial firing, the complainant alleged in the complaint that saw the assailants in the light of electric bulb and can identify them if appear before them. The complainant got his statement (Ex.PG) recorded before Muhammad Yousaf, S.I. (PW-11) and on the basis of which formal F.I.R, was registered.
3. Subsequently, the complainant moved an application (Ex.PH), wherein narrated that he continued to trace the unknown assailants and later on Muhammad Rafique and Muhammad Yousaf informed him that his brother Akbar All, deceased was murdered by Munawar Hussain, Zafar. Hussain and Abdul Ghaffar sons of Muhammad Yaqub on the behest of their father at the time of committing the dacoity with him and subsequently, they were exonerated by the complainant. On 20.9.2003 during the investigation, the complainant Muhammad Siddique (PW-4) submitted another application (supplementary statement) Ex.PJ, by alleging that on 19.9.2003 he was sitting in his house alongwith Master Ali Muhammad and Muhammad Ibrahim when Ch. Muhammad Hassan (PW-8) Ex-Chairman of Union Council came to his house alongwith Haji Bashir Ahmad and Muhammad Yousaf (PW-9), where said Ch. Muhammad Hassan stated that on the previous day, Raashid alias Pappi, Muhammad Hussain and Allah Ditta (appellants) came at his dera, where they confessed their guilt in the presence of Haji Bashir Ahmad and Muhammad Yousaf PWs for committing the murder of Akbar Ali, deceased and now their conscious prick to them being guilty and they have to die and they requested to get them pardoned from the complainant party.
4. The investigation of this case was partially conducted by Muhammad Yousaf, S.I./I.O. (PW.11). He went to the place of occurrence alongwith complainant and some Constables, inspected the place of occurrence, dead- body of the deceased, prepared injury statement Ex.PL, inquest report Ex.PM and Ex.PM/1 and then made an application for conducting the post-mortem examination of the deceased Ex.PN and dispatched the dead-body to the mortuary for post-mortem examination of the deceased. He took blood-stained earth into possession vide recovery memo. Ex.PC, prepared the rough site-plan of the occurrence Ex.PO. He also took into possession one empty cartridge of gun .12 bore v/de recovery memo. Ex.PD, which were attested by the PWs. After the post-mortem examination of the deceased, Farzand Ali C/970 handed over to him last worn clothes i.e. Qamees P-3, Chader P-4, blood-stained which were taken into possession vide recovery memo. Ex.PK. On his direction, Master Sadiq, Draftsman prepared scaled site-plans Ex.PB and Ex.PB/1. The complainant produced application Ex.PH and got recorded his supplementary statement before I.O, Thereafter, Muhammad Yousaf, S.I./I.O, was transferred and investigation of this case was handed over to Muhammad Ilyas, S.I./I.O. (PW-12) on 13.9.2003. On 20.9.2003, the complainant appeared "before second I.O. (PW-12) and submitted a written application Ex.PJ implicating Raashid alias Pappi, Allah Ditta and Muhammad Hussain (appellants) as culprits and I.O. Recorded his supplementary statement alongwith statements of PWs. He arrested the accused-appellants on 25.9.2003 and obtained their physical remand. During the custody, on the pointation of Raashid alias Pappi (appellant), got recovered gun .12 bore P-1 on 29.9.2003 and took the same into possession vide recovery memo. Ex.P.E. On the same day on the pointation of Allah Ditta (appellant) pistol .30 bore P-2 and three live bullets were also recovered which were taken into possession vide recovery memo. Ex.PF. He also prepared rough site-plans of place of recovery of gun '.12 bore recovered from Raashid (appellant) and pistol recovered from Allah Ditta (appellant)
Ex.PE/1 and Ex.PF/1. Thereafter, he deposited the parcels of aforesaid weapons of offence to Moharrir.
After the investigation, I.O. Declared the appellants guilty alongwith Niaz arid Riaz (since P.Os.) and challaned them accordingly.
5. Dr. Nawab Din (PW-1) on 24.5.2003 conducted post-mortem examination on the dead-body of Akbar Ali son of Khushi Muhammad, aged about 55 years, It was dead-body of middle aged man wearing Qameez and Tehband, whose face was pale, eyes and mouth were closed. Post-mortem staining was present on the back. Rigor mortis was present in all four limbs, clothes were blood- stained and have corresponding holes. Doctor noted the following injuries:-- Injuries.
(1-A) A group of six entry wounds, every was measuring 1/2 x 1/2 c.m. x bone deep, on the back of right hand wrist and distal fore-anti 2 to 3 c.m. Apart from one and another. One gutter wound 1-1/2 x 1/2 c.m. skiri deep on medial aspect of right hand. Margins were invited.
(1-B) A group of six exit wounds, every was measuring 3/4 x 3/4 c.m., communicating to injury No. 1- A in front of right hand wrist and fore-arm. Margins were everted.
(1-C) A group of seven entry wounds, every was measuring 1/2 x 1/2 c.m. x abdominal cavity deep.
These injuries were 3 to 4 c.m. Apart form one and other Three in front of right abdomen. Two in mid line, above umbicus. One in left abdomen. One in supra pubic region, in an area 20 x 20 c.m.
Margins were . Inverted.
According to the opinion of Doctor, death occurred due to shock and haemorrhage due to the injuries. All the injuries were ante-mortem caused by fire-arm and were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was 5 to 10 minutes and in- between death and post-mortem was 10 to 12 hours.
6. The learned Trial Court after supplying copies of the documents required under Section 265-C, Cr.P.C, to the appellants, framecs charge under Sections 302, 396, 148/149, PPC against them on 6.9.2004, to which they pleaded not guilty and claimed for a trial.
7. During the trial the prosecution produced as many as twelve witnesses in support of its case. The ocular account of the incident in question was furnished by Muhammad Aslam (PW-3), Muhammad Siddique, complainant (PW-4), Ch. Muhammad Hassan, Nazim (PW- 8) and Muhammad Yousaf (PW-9), while Master Muhammad Sadiq, Draftsman (PW-2) on the pointation of the witnesses had prepared scaled site-plan (Ex.PB and Ex.PB/1), the medical evidence was furnished by Dr. Nawab Din (PW-1). The remaining evidence produced by the prosecution was .More or less formal in nature.
8. The appellants in their statements recorded under Section 342, Cr.P.C., denied the allegation of fact levelled against them by the prosecution and professed their innocence. However, to a question as to why this case is against them and why the PWs had deposed against them, Raashid alias Pappi, one of-the appellants replied as undermost of the PWs are inter se related and are also inimical towards me at the instance of Muhammad Hussain, Ex-Chairman PW-8 and said Muhammad Hassan PW-8 is a party men of one Anwar Bore who was an enemy of my family because he had murdered my brother Muhammad Mushtaq and then he involved my father, my three brothers and two uncles in the murder of Riaz, etc. Of his party man. Said Anwar Bore was murdered on 29.5.2003 in the District Courts premises at Kasur and in his murder, my father, brothers, uncles as well as all major members of my family which is still pending adjudication of District Court, Kasur. Said Muhammad Hussain PW-8 is pursuing the proceedings of said murder case on behalf of the prosecution side and his nephew Ghulam Shabhir son. Of Mansha is also an eye-witness in the said murder case. Only I was left behind from my family so coming in league with Muhammad Ilyas, S.I./I.O. As well as the complainant Muhammad Siddique, said Muhammad Hussain PW- 8 has got me involved in this murder case falsely."
Allah Ditta (appellant) replied the aforesaid question as under:-- "I am khalazad of my co-accused Raashid alias Pappi and is also co-villager of said Muhammad Hussain PW-8. So Muhammad Hussain PW-8 has the grudge against me as well as against my co- accused. So getting an opportunity, he has got involved me alongwith my co-accused Raashid alias Pappi falsely in this case in league with the complainant Muhammad Siddique as well as the I.O. The PWs are inter se related and are also inimical towards me at the instance of said Muhammad Hussain PW-8, who had fabricated the evidence against us in connivance with I.O.
Said Muhammad Hussain PW-8 is a very much influential person in the area being Nazim and Ex- Chairman of the area."
Similarly, Muhammad Hussain (appellant) replied the aforesaid question as under:-- .
"Muhammad Hussain PW-8 is Nazim pf our Union Council and family of Dogar Bratheri contested local bodies elections against said Muhammad Hussain PW-8 and we all Dogar families also casted our votes against said Muhammad Hussain PW-8 in the elections. Whereas said Muhammad Hussain PW-8 has personal grudge against my other co-accused. First of all said Muhammad Hussain PW-8 asked me to become as approver against my co-accused and I later on refused to do so, so said Muhammad Hussain PW-8 in connivance with the complainant Muhammad Siddique as well as in league with the I.O. Involved me falsely in this case. Most of the PWs are related inter se and they have falsely deposed , against me."
The appellants neither opted to make any statement on oath under Section 340(2), Cr.P.C, nor produced any evidence in their defence.
9. Upon conclusion of the trial the learned Trial Court after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt convicted arid sentenced them as mentioned above. Hence, the present appeals and the connected Murder Reference.
10. The learned counsel for the appellants contended that the appellants were not nominated accused, who have been falsely implicated in this case due to previous enmity; that it was an unseen occurrence committed by some un-known accused persons. The complainant in his supplementary statement Ex.PH firstly nominated Munawar Hussain, Zafar Hussain and Abdul Ghaffar sons of Muhammad Yaqoob as culprits, who committed the murder of his brother Akbar AN, but later on, exonerated them and after four months of the occurrence through supplementary statement Ex.PJ, implicated the appellants and others for the commission of murder of his brother Akbar Ali on the basis of their alleged extra-judicial confession made before Ch. Muhammad Hussain and Muhammad Yousaf PWs-8 and 9. The alleged extra-judicial' confession has got nd sanctity in the eye of law; that the alleged recovery of weapons of offence effected from the appellants is fake one, which is inconsequential as they were not found wedded. The prosecution has failed to establish the guilt of appellants beyond any shadow of doubt but the learned Trial Court convicted them arbitrarily without caring for the material, available on record, therefore, the appellants deserve to be acquitted and instant appeals merit acceptance while the murder reference be answered in the negative.
11. Conversely, the learned D.P.G, assisted by the learned counsel for the complainant has opposed this appeal by contending that the appellants alongwith their co- accused had come at the house of the deceased in order to commit dacoity and on their failure to extort the money from the deceased, they fired at him and committed his murder. After the occurrence, the appellants approached Ch. Muhammad Hussain, Nazim (PW-8) with the request to get them pardoned fr6m the legal heirs of the deceased Akbar Ali and they confessed their guilt; that the complainant had got no malice to falsely implicate the appellants; that in the presence of eye-witnesses, the appellants made extrajudicial confession, who had fully implicated the appellants for the murder of said Akbar Ali, deceased; that weapons of offence recovered on the pointation of the appellants also fortify the prosecution version; that the prosecution has fully established the guilt of appellants beyond any shadow of doubt; that the medical evidence is in line with ocular account, therefore, the appellants have rightly been convicted and sentenced as mentioned above. The conviction and sentence is liable to be maintained and appeals are liable to be dismissed.
12. We have heard the learned counsel for. The appellants, learned D.P.G, and learned counsel for the complainant and gone through the entire record with care and caution.
13. The F.I.R. (Ex.PG) was registered against unknown persons and thereafter, the complainant made two supplementary statements in one supplementary statement Ex.PH, he implicated Munawar Hussain, Zafar Hussain and Abdul Ghaffar sons of Muhammad Yaqoob as culprits, who allegedly committed the murder of his brother Akbar Ali, deceased and in second supplementary statement Ex.PJ, which was made after four months of the occurrence, the appellant Raashid alias Pappi alongwith others namely Muhammad Hussain, Allah Ditta and Riaz and Niaz (since proclaimed offenders) have been implicated.
14. The prosecution, has furnished ocular evidence in the shape of statement of Muhammad Aslam (PW-3) son of the deceased, Muhammad Siddique (PW-4), brother of the deceased, who after having heard report of firing came at the place of occurrence and found Akbar Ali lying dead on a cot surrounded by three assailants armed with fire-arms. The statements of Ch. Muhammad Hussain, Nazim (PW-8) and Muhammad Yousaf (PW-9) related to the extra-judicial confession of the appellants and that of their co-accused regarding the murder of Akbar Ali, deceased.
15. Muhammad Aslam (PW-3), son of the deceased deposed that he was sleeping in his house about one year and 3/4 months back at about 1.30 a.m. When he heard report of a fire-shot and woke-up, then he alongwith Muhammad Siddique and Ghulam Hussain PWs came at the spot and saw that three unknown persons were standing near the dead-body of Akbar Ali, deceased and when they raised lalkara, the assailants ran away from the spot while making aerial firing. His father was smeared with blood after receiving fire-shot on his belly as well as on his right hand and he was lying dead. About four months later thereto, Raashid Ahmad alias Pappi, Muhammad Hussain and Allah Ditta (appellants) disclosed that they alongwith Riaz and Niaz since P.Os.) committed the murder of deceased. Raashid (appellant) further stated at the Police Station that firstly Niaz co-accused made fire-shot on the right hand of the deceased with his carbine then he himself made fire- shot with his 12 bore gun at the belly of Akbar Ali, deceased. He further stated that the deceased had refused to hand over money to , them, so they fired at him with their respective fire-arms. During the interrogation by Investigating Officer, Raashid alias Pappi (appellant) also disclosed and pointed of the place where, cot of Akbar Ali deceased was -lying and they committed the offence. Raashid alias Pappi (appellant) also got recovered gun .12 bore and Allah Ditta (appellant) got recovered pistol .30 bore on the same day which were taken into possession by the Investigational Officer.
16. Muhammad Siddique, complainant appeared as PW-4, after narrating the story mentioned in the F.I.R. (Ex.PG), stated that he made complaint Ex.PH against Munawar Hussain, Zafar Hussain and Abdul Ghaffar sons of Muhammad Yaqub but they were exonerated by the police four months after the occurrence, on 19.9.2003 when he was present at his house. Ch. Muhammad Hussain, Ex- Chairman of Union Council alongwith Haji Bashir Ahmad and Muhammad Yousaf, came there; Ch. Muhammad Hussain told him that appellants alongwith Niaz and Riaz (since P.Os.) had visited at his dera and confessed then guilt before them and stated that they committed the murder of the deceased and they requested them for fetching pardon from the complainant party, but he refused to accede to their request; thereafter the complainant made an application Ex.PJ before the police and implicated the appellants and others as real culprits of the incident. Raashid alias Pappi and Muhammad Hussain (appellants) were arrested by the police and the complainant identified them at the Police Station, In cross-examination, he admitted that he himself had seen Raashid alias Pappi, Allah Ditta and Muhammad Hussain (appellants) at the time of fleeing the spot, but he did not mention their features in the F.I.R.
17. Ch. Muhammad Hussain, Nazim (PW-8) deposed that one year ago, he was present at his dera alongwith Haji Muhammad Yousaf and Bashir Ahmad when Muhammad Hussain (appellant) came there alongwith Raashid alias Pappi and Allah Ditta (appellants); Muhammad Hussain (appellant) confessed before them that he alongwith Raashid, Allah Ditta (appellants), Riaz and Niaz (since P.Os.) had gone to the house of Akbar Ali (deceased) to commit dacoity; they awoke Akbar Ali, who resisted and raised alarm; Niaz (co-accused) fired at the deceased, hitting on his right hand and Raashid appellant) fired hitting on the belly of the deceased Akbar Ali; Raashid and Allah Ditta (appellants) also confessed their guilt in the same manner. They requested him to get pardon for them from the complainant party because their conscious pricked. On the next day, he alongwith Bashir and Yousaf went to the house of the complainant Muhammad Siddique and narrated the whole story to him. In cross-examination, he had admitted that he had appeared before the police once or twice in support of the accused prior to their at of extrajudicial confession.
18. Muhammad Yousaf (PW-9) deposed that he alongwith Ch. Muhammad Hussain, Nazim (PW-8) was , sitting at the dera of Ch. Muhammad Hussain (PW-8) when Raashid alias Pappi and Allah Ditta (appellants) came and confessed before him that they had committed the murder of the deceased and requested to get pardon for them from the complainant party. Other two appellants Raashid and Allah Ditta also confessed their guilt and requested' Ch. Muhammad Hussain (PW-8) to fetch pardon for them from the complainant party. They further told that they went to the house of the deceased for committing dacoity; deceased was sleeping in the street/road; Niaz co- accused made fire- shot hitting on the right hand of deceased and Raashid (appellant) made fire- shot hitting on the belly of the deceased and murdered him; Muhammad Aslam and Muhammad Siddique (PWs 3 and 4) respectively came at the spot after hearing the report of firing .
19. As mentioned above there is no direct evidence on the record against the appellants. The circumstantial evidence led by the prosecution is highly defective which cannot be relied upon by any argument. The entire prosecution case revolves around the extra judical confession of the appellants before Ch. Muhammad Hassan (PW-8) and Muhammad Yousaf (PW-9) as well as before Muhammad Aslam (PW-3). The statements of above said witnesses are not worthy of credence. Why, one would confess for an offence entailing capital punishment is a question which was required to be answered by the prosecution during the course of the trial but they do not appear to have rendered any reply to it. The appellants were not even known as accused of this case, at the time of alleged extra judicial confession by them before the above said witnesses. The appellant were implicated in this case by the complainant through his supplementary statement (Exh.PJ) which was recorded on the following day of the alleged extra judicial confession of the accused appellants. There was hardly any reason or compelling circumstance for confessing their guilt by the appellants before the mentioned witnesses.
20. The evidence of joint extra judicial confession of the accused is pre-se inadmissible in evidence and the evidence presented by PW-8 and PW-9 is of identical character. There cannot be any cavil to the proposition that the extra judicial confession is the weakest type of evidence and no conviction could be based on it alone without availability of strong independent corroboration to it.
Reliance can be placed on case titled Sajid Mumtaz and others v. Basharat and others (2006 SCM R 231) wherein, it has been observed by the august Supreme Court of Pakistan that extra-judicial confession had almost become a norm when the prosecution could not otherwise succeed. This particular piece of evidence can be easily procured by the prosecution when direct connecting evidence does not come their way and it is invariably done by the police/prosecution in every case wherein eye-witness account is not available, the padding, the concoction and the exaggeration being its hallmark. The statements of both the witnesses of extra-judicial confession of the accused have been badly marred by several contradictions. So far as the admission of guilt by the appellants before Muhammad Aslam (PW-3), at the Police Station is concerned, it does no good to the prosecution case as such like confession, before a police official, of the rank howsoever cannot be proven at trial because of the bar contained in Article 39 of Qanun-e- Shahadat Order, 1984. The evidence qua recovery of the weapon is equally inconsequential as prosecution failed to produce any evidence during trial, by way of submission of a positive report from the office of Fire-arm Expert, In nutshell, the prosecution has failed to bring home the guilt of the appellants-convicts beyond any reasonable shadow of doubt, It is virtually a case of no evidence, hence rejected.
21. For what has been discussed above, we accept all the appeals, mentioned hereinabove, set aside the sentences awarded to the appellants by the learned Trial Court and acquit them of all the charges, alleged against them by the prosecution, by extending benefit of doubt. They are in jail, be released forthwith if not required in any other case.
22. Consequently, the death sentence awarded to Raashid Ahmad alias Pappi, convict-appellant, is not confirmed and Murder Reference No. 23 of 2005 is answered in negative.