SYED IFTIKHAR HUSSAIN SHAH, J. - This judgment will dispose of Criminal Appeal No. 1149 of 2006 filed by Muhammad Asif convict/appellant and Criminal Appeal No. 1153 of 2006 filed by Sheikh Imran convict/appellant, who were convicted and sentenced by the learned Additional District Judge, Gujranwala vide judgment dated 26.6.2006 as under:-- Under Section 302(b). PPC Death and to pay compensation of Rs, 50,000/- each under Section 544-A, Cr.P.C, payable to the legal heirs Of the deceased in default whereof to further undergo simple imprisonment for six months.
Under Section 392. PPC Rigorous imprisonment for ten years with the fine of Rs. 20,000/- each and in default of payment of fine to further undergo simple imprisonment of six months.
Murder Reference No. 812 of 2006 for confirmation or otherwise of death sentence of the appellants Muhammad Asif and Sheikh Imran through this judgment.
2. Succinctly, the facts as mentioned in the F.I.R. Ex.PK registered on the complaint Ex.PD of Nazir Ahmad son of Rehmat Ali, are that on 24.9.2005 at about 8.15 p.m. He alongwith his brother Muhammad Arshad was going to his house 0n a motor-cycle No. 8630-GAR and when they reached on a road to Rana Colony from G.T. Road near mosque, two unknown young boys while armed with firearms, stopped them and called of to hand over whatever they had as well as the motor-cycle. On resistance, one of the assailants fired which hit on the chest of his brother Muhammad Arshadi who fell down. Both the assailants fled away by taking their motor-cycle. The complainant took his brother Muhammad Arshad to civil hospital but he succumbed to the injury suffered by him. One passer-by "Faryad son of Yaqoob also witnessed the occurrence.
3. After the submission of challan, accused Muhammad Asif and Sheikh Imran were charged under Sections 302/392, PPC to which they pleaded not guilty and. Claimed trial. The prosecution, in order to substantiate the charge, examined as many as 13 witnesses.
4. Zakaullah No. 1652/C PW-1, Muhammad Riaz PW-2, Masood Ahmad Bhatti, Draftsman PW-3, Zulfiqar Ali 69/C PW-5, Sajid Ali PW-6, Naseer Ahmad PW-7 and Sultan Mehmood PW-10 are the formal witnesses: Ghulam Abbas No. 816/LHC PW-4 is witness for the recovery of pistol 30-bore P-1 vide recovery memo. Ex.PB effected on the disclosure and pointation of Sheikh Imran appellant.
Nazir Ahmad PW-8 is the eye-witness of the Occurrence. Muhammad Arif PW-9 is the. Witness of the extra judicial confession made by both the appellants Muhammad Asif and Sheikh Imran and Akbar Ali, SI PW-12 conducted the investigation of this case.
5. Dr. Ateeq Ahmad PW-11 conducted the postmortem examination on the dead-body of deceased Muhammad Arshad and he observed following injuries:-- "Injuries No. 1-A. (Wound of entry) A fire-arm lacerated wound 1 c.m. x 1 c.m. Inverted margins, going deep back of the left chest, lower part, almost at the inferior angle of left scapula, 7 c.m. Left to the midline at back.
No. 1-B. (Wound of exit) A fire-arm lacerated 1-1/2 x 1-1/2 c.m. With everted margins going deep at left anterior chest, fourth intercostals space, at mid clavicular lines.
Opinion After careful external and internal post-mortem of the dead-body, he was of the opinion that the death in this case occurred due to the injuries of vital organs, like heart and lung under injury Nos: 1-A and B, which were sufficient to cause death in an ordinary course of nature. Injuries Nos. 1- A and 1-B were ante-mortem and caused by some fire-arm weapons.
The probable time that elapsed between injury and death immediate and between death and post-mortem, 6 to 8 hours."
6. The prosecution after tendering in evidence the report of Chemical Examiner Ex.PL, report of Serologist Ex.PM and report of Forensic Science Laboratory Ex.PN, closed its evidence.
7. After closing of the prosecution evidence both the accused were examined under Section 342, Cr.P.C. The incriminating evidence produced by the prosecutions was put them, which they termed as incorrect, to question as to why this case was registered and why the PWs have deposed against them, appellant Muhammad Asif deposed as under:-- "I was arrested alongwith other accused in a case F.I.R. No. 734/2005 under Sections 399/402, PPC Police Station, Sabzi Mandi and on the asking of police I was falsely involved in this case. The witnesses, who deposed against me, were the interested witnesses."
Accused Sheikh Imran deposed as under:-- "It was an unseen occurrence and the I.O. Of this case arrested me u/S. 54, Cr.P.C, and after agitation of my father and myself, I.O. Dishonestly and ma/a fidely made two witnesses to believe that I was the culprit. PWs are inter se related and deposed under the influence of police after challan. Complainant party was demanding huge amount for. Withdrawing from prosecution, while I failed to comply; so the PWs deposed falsely against him."
8. Both the accused opted not to appear on oath as a witness under Section 340(2), Cr.P.C.
However, accused/appellant Muhammad Asif produced Manzoor son of Bashir Ahmad as DW-1 and Muhammad Rashid son of Rehmat Ali as DW-2.
9. Learned Trial Court, after hearing the learned counsel for the parties and going through the evidence on record, convicted both the accused as Muhammad Asif and Sheikh Imran and sentenced them under Section 302(b), PPC to death and to pay compensation of Rs. 50,000/- each to be paid to the legal heirs of the deceased Muhammad Arshad under Section 544-A, Cr.P.C, in default whereof to further undergo simple imprisonment for six months. They were convicted and sentenced under Section 392, PPC to rigorous imprisonment for ten years with the fine of Rs.
20,000/- in default whereof to further undergo simple imprisonment for six months.
10. Learned counsel for the appellants has contended that the case against the appellants is based only Upon the solitary statement of the complainant who did not nominated the appellants in the F.I.R. rather he nominated the appellants through his supplementary statement recorded on 29.9.2005 five days after the occurrence and that too on the basis of alleged extra-judicial confession, made before PW-9 Muhammad Arif and Nazar Hussain; that the prosecution had given up Nazar Hussain being unnecessary during trial proceedings; that according to the contents of F.I.R., the complainant had categorically stated that the occurrence was witnesses by another person namely Faryad son of Muhammad Yaqoob, who was cited as , witness in the calendar of witnesses but he was also given up being unnecessary; that no crime empty was recovered from the spot; that there is no report Of Forensic Science Laboratory in this case and the report Ex.PN relates to another case F.I.R. No. 486, dated 13.7.2005 registered under Sections 302/392, PPC at Police Station, Sabzi Mandi Gujranwala; that the solitary statement of the complainant is in direct conflict with that of the medical evidence as the doctor had observed one fire-arm Injury op the dead-body of the deceased at the back of left chest i.e. Injury No. 1-A in the post-mortem examination and injury No. 1-B in the front of chest of the deceased was a wound of exit whereas in the F.I.R, it is the case of the complainant that the deceased had received fire-arm injury at the front of his chest; that the complainant with mala fide .Intention, after the post-mortem examination report had made improvements in his statement While appearing before the leaded Trial Court and stated that one of the assailants fired at the back of the deceased; that this portion of evidence of complainant Nazir Ahmad PW-3 was duly confronted and he has explained in, his cross-examination that as the blood was oozing from the chest of his deceased, brother, therefore; he stated before the police that the first hit at the front of chest the deceased; that the alleged snatched motor-cycle- was not produced before the learned Trial Court, therefore, case against the appellants has not been proved arid they are entitled to acquittal.
11. On the other hand, learned DPG contends that both the appellants made their confession - before Muhammad Arif PW-9 and Nazar Hussain and on the basis of the same, complainant rightly, nominated both appellants through supplementary statement recorded on 29.9.2005; that contradiction in medical evidence and the F.I.R, has properly been explained by the complainant as PW-8 during cross-examination and as such this contradiction does not effect the prosecution case otherwise proved against the appellants without any shadow of doubt; that the complainant PW-8 as well as Muhammad Arif PW-9 has no ill-will or mala fide against the appellants to falsely involved them in this case; that the case against the appellants is as stated by complainant Nazir Ahmad PW-8 coupled with the evidence of extra-judicial confession before Muhammad Arif PW-9 is sufficient to maintain conviction and sentence of the appellants in this case.
12. We have heard the learned counsel for the appellants, learned DPG for the State and have also gone through the record.
13. The ocular account in this case has been furnished by Nazir Ahmad PW-8 (complainant) and Muhammad Arif PW-9 before whom both the appellants made extra-judicial confession regarding the murder of Arshad and regarding the snatching of motor-cycle from the complainant and his brother Muhammad Arshad deceased. Nazir Ahmad complainant while appearing as PW-8 deposed that on 24.9.2005 at about 8.15 p.m. He alongwith his brother Muhammad Arshad was going to his home and when they reached between Master Industry and. Anwar Industry near mosque, two unknown armed persons intercepted them and directed them to hand over whatever they had. One of the assailants Started searching his brother Muhammad Arshad deceased and on his resistance, second person fired which hit on back of Muhammad Arshad. Both accused fled away after the snatching of motor-cycle. The complainant put his brother Muhammad Arshad in a rickshaw, who died on his way to the hospital. On 29.9.2005 both the appellants Muhammad Asif and Sheikh Imran met one Arif son of Khushi Muhammad in Rana Colony. The complainant alongwith Arif and Nazar went to Police Station and moved an application dated 29.9.2005 Ex.PE wherein both the appellants were nominated as accused of this case. It has been mentioned in the F.I.R. Ex.PK that the occurrence was witnessed by the complainant as well as a passer-by Faryad son of Muhammad Yaqoob, who has been given up by the prosecution being unnecessary.
14. Both the appellants are not nominated accused of this case. The appellants were not put to the test of identification parade. They have been implicated by the complainant through his supplementary statement Ex.PE on the basis of extra-judicial confession allegedly made by the appellants before Muhammad Arif son of Khushi Muhammad and Nazar Hussain son of Muhammad Sabir on 28.9.2005. The complainant in the complaint Ex.PD has mentioned that one of the assailants made a straight fire which hit on the chest of .His brother. According to the site plan Ex.PA, the accused had fired at the deceased from a distance of 5 feet whereas according to the post-mortem examination report, there was no blackening on injury No. 1-A, which is the entry wound 1 c.m. x 1 c.m. With inverted margins going deep back of the left chest whereas according to the F.I.R., the deceased had received fire-arm injury on the front of his chest. The complainant tried to clarify it during cross- examination stating that he had not mentioned in Ex.PD that the fire had hit on the back of his brother, he had mentioned that fire had hit on the chest of his brother. He admitted that as the blood was oozing from the chest, so he was unable to determine as to whether fire had hit from backside or from front side.
15. Allegedly, the appellants snatched motor-cycle from the complainant and his deceased brother Muhammad Arshad and the same was the only robbed article of this case. The complainant in his cross-examination has stated that the motor-cycle which was snatched in the occurrence was found lying near the railway line in Rana Colony in the next morning of the occurrence. He took the same to his house and informed the police about it but he neither produced the same before police nor the police had taken it into possession nor it was produced before the Court during trial. The said motor-cycle was the only robbed article to prove the commission of offence of robbery which was withheld by the complainant himself.
16. Both' the appellants have allegedly confessed their guilt on 28.9.2005 before Muhammad Arif PW-9 and one Nazar Hussain. Muhammad Arif (PW-9) deposed that he alongwith Nazar Hussain was sitting in his Baithak and talking about business when some one knocked the door. He opened the door and Sheikh Imran and Muhammad Asif entered in the room; They told that they had committed a great sin. They had gone for snatching motor-cycle and on the way Arshad met them. They tried to snatch motor-cycle from him, who resisted. Sheikh Imran told him that he fired at him on his resistance and they ran away with the vehicle. They further informed him that their conscience had forced them to appear before them so that they be got pardoned from Nazir Ahmad, brother of Muhammad Arshad deceased.
17. From the contents of the supplementary statement Ex.PE and from the statement of Muhammad Arif PW-9, it is crystal clear, that the alleged extra-judicial confession made by the appellants was joint one. Muhammad Arif (PW-9) had admitted in his cross- examination the complainant was belonging to his fraternity but neither he was Councilor of Mohallah nor he had settled a Daira nor he decides the disputes between the people, It means that the witness, before whom the alleged extra judicial confession has been made, has no social or official status. There is hardly any reason or compelling circumstances for confessing the guilt by the appellants before the above- mentioned PWs. It has been held by the Hon'ble Supreme Court that a joint extra-judicial confession cannot be used against either of the accused. Reliance can be placed on case titled "Sajid Mumtaz and others Vs. Basharat and others (2006 SGMR 231 [Supreme Court of 'Pakistan])" and "Tahir Javed Vs. The State (2009 SCM R 166 [Supreme Court of Pakistan))".
18. There cannot be any cavil to the proposition that the extra-judicial confession is the weakest type of evidence and no conviction can be based on it alone without some strong independent corroboration.
19. The extra-judicial confession had almost become a norm when the prosecution could hot otherwise succeed. This particular piece of evidence can be easily procured by the prosecution when the direct connecting evidence does not come in their way. It is invariably done by the police/prosecution in every case wherein eye-witnesses account is not available, the padding, concoction and exaggeration being its hallmark. Nazar Hussain who was also present at the time of alleged extra-judicial confession of the appellants has been given up being unnecessary. There is no corroboration of statement of Arif PW-9 and the presumption goes against the prosecution itself under Article 129(g) of Qanun-e-Shahadat Order, 1984 that if the said PW had been examined, he would have deposed against the prosecution.
20. The prosecution has examined one eyewitness of this occurrence namely Nazir Ahmad PW-8 whose testimony is full of contradictions in respect of almost all the material aspects of the case.
There are material contradictions in Ocular account furnished by the aforesaid witness/complainant and the medical evidence, which clearly established that the Nazir Ahmad PW-8 who claimed himself to be an eye-witness of the occurrence was not present at tine spot at the time of occurrence. Had he been present, he would have given the true description of the injuries sustained by the deceased. The recovery of the weapon of . Offence is inconsequential because empty and pistol were sent to the Forensic Science Laboratory together on 3 12:2005. The alleged extra-judicial confession of both the appellants being, joint is inadmissible in evidence. The robbed motor-cycle was neither produced during investigation nor before the Court at the time of trial.
21. In these circumstances, we are of the considered opinion that the prosecution has failed to establish the guilt of both the appellants beyond any shadow of doubt. Consequently, both the appeals in hand are allowed and the appellants are hereby acquitted of the charge. They are in jail, they' be released forthwith if not required in any other case.
The. Death sentence awarded to the appellants is NOT confirmed and Murder Reference No. 812 of 2006 is answered in negative.