ARSHAD MAHMOOD TABASSUM, J.---Hazrat Ali alias Ghani, appellant, along with his co-accused, namely, Sair Iqbal, Shareef Ullah and Ameer Aslam, was tried by the learned Additional Sessions Judge, D.G. Khan, in case F.I.R. No, 69, dated 27-3-2007, registered under section 302/34, P.P.C., with Police Station Taunsa Sharif, District D.G. Khan, for committing murder of the deceased Shahnaz Gul. The learned court on conclusion of trial, vide judgment dated 21-1-2009, convicted the appellant under section 302(b), P.P.C., and sentenced him to death with a direction to pay Rs, 50,000 as compensation to the legal heirs of the deceased Shahnaz Gul, as required by section 544-A, Cr.P.C., and in default whereof to undergo six months' simple imprisonment, while his 'co- accused, namely, Sair Iqbal, Shareef Ullah and Ameer Aslam were acquitted of the charge by extending benefit of doubt to them.
2. Murder Reference No, 45 of 2009 has been sent by the learned trial Court seeking confirmation of death sentence awarded to Hazrat Ali appellant.
3. Hazrat Ali alias Ghani appellant preferred Criminal Appeal No,69 of 2009 against the aforesaid conviction and sentence. Both these matters are being disposed of by this single judgment.
4. Briefly, the facts of the prosecution case, as set out in the F.I.R. (Exh.P.G), lodged by the complainant/Zareen Gul (P.W.7) on 27-3-2007, at 3-25 p.m., are that, he and his brothers, namely, Ghulam Yasin, Shehzad Gul, Shahbaz Gul, Janbaz Gul, Siraj Gul and Shahnaz Gul (deceased), were butchers by profession; that Shahnaz Gul (deceased), their brother, used to go daily to "Peer Pathan Hotel", Nizamia Petrol Pump, Indus High Way to slaughter a goat there and provide meat to the said hotel; that Sair Iqbal, Shareef. Ullah, Ameer Aslam and Hazrat Ali alias Ghani, accused persons, also used to work there in the hotel; that due to the reason that the deceased was a teenager, the accused persons used to persuade him to surrender to their unnatural lust for which the deceased used to complain him and other brothers about the accused persons; that on that day, he along with his brother Ghulam Yasin (P.W.8) and Janbaz Gul (given up P.W.) came back from cattle market, "Pull Qamber" to the said hotel to complain to Buland Iqbal, owner of the hotel about the said incident; that at about 1-00 p.m. They had just sat near cabin and were drinking water, when suddenly, from the North West side of the hotel where Shahnaz Gul, after slaughtering the goat, was preparing meat, they heard a loud noise, whereupon, Ghulam Yasin and Janbaz Gul rushed to the spot; that they saw "Chura" in the hand of Hazrat Ali alias Ghani, while Shareef Ullah, Sair Iqbal and Ameer Aslam had overpowered Shahnaz Gul and within their view Hazrat Ali inflicted repeated blows of "Chura" on the chest, right flank and left arm of Shahnaz Gul; that they tried to apprehend the culprits, but they fled away towards east with the "Chura" and that they shifted their brother Shahnaz Gul, who was smeared in blood, to the THQ Hospital where he succumbed to his injuries.
5. The motive behind the occurrence was that all the four accused persons wanted to commit sodomy upon the deceased, but on their failure to do so, they, in furtherance of their common intention, murdered him.
6. The appellant and his co-accused persons were charge-sheeted on 15-9-2009, under section 302/34, P.P.C., to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as nine witnesses.
7. Sajid Hussain complainant (P.W.7) corroborated the prosecution version, as set out in the F.I.R.
Ghulam Yasin while appearing as P.W.8 corroborated the statement of the complainant. The medical evidence is based upon statement of Dr. Abdur Rasheed (P.W.1), who conducted the post mortem examination on the dead body of Shahnaz Gul and found the following injuries:--
(1) A stab wound about 6 cm x 2 cm, deep going in front of left side of chest, about 2 cm away from mid line and about 5 cm about on medial side from left nipple.
(2) A stab wound about 6 cm x 2 cm, deep in going in right hypochondrium about 5 cm away from mid line, Placed obliquely.
(3) An incised wound about 9 cm x 3 cm in which bone is visible in front of left fore-arm, placed vertically nearly in middle.
(4) An incised wound about 5 cm x 2 cm deep going on lateral side of left forearm, about 2 cm above wrist joint. Placed obliquely.
The doctor opined that all the injuries were ante-mortem having been caused with sharp edged weapon. Injury No,2 was fatal which led to injury to vital organs liver and lung, by injuring the hepatic blood vessels, which was sufficient to cause death in the ordinary course of nature.
8. Khadim Hussain' SI/(P.W.9), had investigated the case. He arrested the appellant on 30-3-2007 and on his disclosure recovered blood stained "Churi" P-1. Rest of the prosecution evidence was more or less formal in nature.
9. The prosecution closed its evidence by tendering reports of Serologist Exh.PP and Exh.PQ and report of Chemical Examiner Exh.P0.
10. The appellant in his statement under section 342, Cr.P.C. Denied the allegations and professed his innocence. In reply to a question "why this case against you and why the P.Ws deposed against you", he stated as under:-- "I was mentally upset. I do not know what happened. I am innocent. Police falsely involved me in this case."
The appellant opted to produce defence evidence, however, refused to enter the witness box to state on oath in disproof of the allegations levelled against him by the prosecution, as required under section 340(2), Cr.P.C. In defence, Hafiz Bashir Ahmad appeared as D.W.1, who deposed that:- - "I provide vegetables in the hotel of Peer Pathan Alhafiz Hotel daily and I am also part time worker of that hotel. About 1-3/4 years before, at about 1-00 p.m., I and Sair Iqbal were sitting together in the hotel in veranda. I heard noise coming from north western corner of the hotel. I rushed to that spot. Sair Iqbal also followed me. When we reached there, Shahnaz Gul was sitting in an injured condition and adjacent to him, Hazrat Ali alias Ghani armed with Chura was stood. Ameer Aslam and Sharif Ullah also came at the spot. Ameer Aslam and Sharif Ullah captured Hazrat Ali and tied him with cot. Umer also came there. Shahnaz Gul injured asked us to shift him to hospital. There was a passenger having a car taking meal in the hotel. I requested to him and he shifted the injured to hospital in my company and of Umer. Shahnaz Gul said to me not to spare Hazrat Ali.
Doctor inquired name of injured who replied as Shahnaz Gul. Yasin was present in hospital. He donated blood for the injured. Blood was provided to the injured but after 3, 4 minutes, he died. At that time, brothers of injured neither reached to the hospital nor in the hotel. Later on in the hospital, Shahzad and Shahbaz came. Police also came in the hospital. I gave my statement to police. Police came with me in the hotel and arrested Hazrat Ali alias Ghani.
Again police came at evening time and took all the employees of hotel with them. Ameer Aslam joined employment in the hotel about four days before the occurrence and Sharif Ullah came to work in the hotel two days before the occurrence. Sair Iqbal, Sharif Ullah and Ameer Aslam did not participate in the alleged occurrence."
11. Ultimately, the learned trial court, after hearing the learned counsel for the parties, vide judgment dated 21-1-2009, convicted and sentenced the appellant as aforesaid, while his co-accused persons were acquitted of the charge.
12. Learned counsel for the appellant has argued that the learned trial court has illegally convicted and sentenced the appellant despite having arrived at the conclusion that the alleged eye- witnesses had not witnessed the occurrence. The prosecution had failed to prove the motive of the case and the recovery of weapon of offence also appeared to be doubtful; that what found favour with the learned trial court to convict the appellant was the statement of Hafiz Bashir Ahmad D.W.1; that even the depositions made by the D. W.1 have been misread and misconstrued by the learned trial court which led it to arrive at a wrong conclusion to convict the appellant, hence, the impugned conviction and sentence is liable to be set aside by accepting this appeal.
13. Conversely, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has fully supported the impugned conviction and sentence.
14. We have considered the submissions made by the learned counsel for the parties and with their able assistance the evidence available on the record has been examined.
15. In para 23 of its judgment, the learned trial Court has observed:-- "The presence of P.W.7 Zareen Gul complainant and Ghulam Yasin P.W.8 on the spot at the time of alleged occurrence i.e. 1-00 p.m. At Peer Pathan Hotel appears highly doubtful. P.W.8 in cross- examination has admitted that deceased had been supplying the mutton to that hotel for about 2.3 months. After purchasing the cattle from cattle market at Pul Qamber which is at a distance of 4, 5 km from the spot, they sent the deceased on rickshaw to Alhafiz Hotel and told him that they were following him. It appears that deceased always had been going alone to said hotel and there were no circumstances warranting P.W.7 and P.W.8 to follow the deceased to the said hotel. P.W.8 also stated that blood was oozing from wound but their clothes were not stained with blood while shifting the deceased in an injured condition to the hospital. Zareen Gul sat in the car by holding the head of deceased in his lap. P.W.7 Zareen Gul admitted in cross-examination that they took care of brother but their clothes were not stained with blood."
Thus, the learned trial Court for quite valid reasons IA disbelieved the eye-witnesses i.e. P.W.7. And P.W.B. Similarly, in para 22 of the impugned judgment, the learned trial Court has observed as under:-- "This recovery also appears doubtful because it was very easy for the accused persons to cause disappearance of that "Chura" during three days after the alleged occurrence."
16. The learned trial court even disbelieved motive of the occurrence as set up by the prosecution by holding as under in para 21 of the judgment:-- "Due to the alleged complaint about inviting the deceased for sodomy by accused, in normal circumstance, five brothers of deceased were supposed to flair up and also to agitate without delay before the owner of the said hotel, where accused were working. Moreover, resorting to inflicting churi blows on a person, on his denial, for sodomy, especially within the area of a hotel at 1-00 p.m., does not appeal to reasoning. After receiving that complaint from deceased, subsequent conduct of brothers of deceased on two following days till the occurrence that they did not accompany the deceased to the hotel to support him in his job and to save him from any assault by accused and also to agitate before the owner of the hotel and to complain him about the attitude of four employees of hotel, cleary shows that motive is concocted one."
17. But despite all this, learned trial Court convicted and sentenced the appellant on the basis of statement of D.W.1. In the above reproduced statement of Bashir Ahmad D.W.1, he stated:-- "I heard noise coming from north western corner of the hotel. I rushed to that spot. Sair Iqbal also followed me. When we reached there, Shahnaz Gul was sitting in an injured condition and adjacent to him, Hazrat Ali alias Ghani armed with Chura was standing. Ameer Aslam and Sharif Ullah also came at the spot. Ameer Aslam and Sharif Ullah captured Hazrat Ali and tied him with cot. Umer also came there. Shahnaz Gul injured asked us to shift him to hospital. There was a passenger having a car taking meal in the hotel. I requested to him and he shifted the injured to hospital in my company and of Umer."
During cross-examination the said D.W. Stated:-- "I did not see the occurrence."
18. Thus the D.W. Who has been relied upon by the learned trial Court to convict the appellant is a witness who himself stated that he did not see the occurrence.
In his entire statement he has nowhere stated that he had seen the appellant inflicting Chura blows to the deceased. Thus, on the basis of statement of this D.W. The appellant could not be convicted especially when the entire prosecution evidence had been disbelieved by the learned trial Court. Learned trial Court while relying upon the statement of the said D.W.1 has observed as under:- "The complainant party, investigation officer as well D.W.1 has involved accused Hazrat Ali with role attributing "Chura" blows on the body of deceased resulting into his death."
19. To our mind, this portion of the impugned judgment is self contradictory, because the learned trial Court has already disbelieved the complainant party including both the eye-witnesses, hence, reference to their depositions in the above reproduced portion of the impugned judgment is uncalled for.
20. As regards D.W.1, he has nowhere stated that the appellant had given Chura blows on the body of the deceased resulting into his death. Thus the impugned judgment appears to be suffering from misreading and non-reading of evidence available on record. The learned trial Court has also observed:-- "It does not appear that accused Hazrat Ali due to upset of his mental faculties has caused sharp edged weapon injuries to the deceased."
21. The accused has nowhere claimed that, due to being a man of unsound mind he had caused sharp edged weapon injuries to the deceased. Instead, in reply to question No.6 he states:-- "I was mentally upset. I do not know what happened. I am innocent. Police falsely involved me in this case."
22. In the above circumstances, neither on the basis of statement of D.W.1 nor plea of the accused- appellant he could be convicted and sentenced in this case. In this regard, reliance may be placed on the case titled "Azhar lqbal v. The State" (2013 SCM R 383). The relevant portion whereof reads as under:-- "After hearing the learned counsel for the appellant and the learned Additional Prosecutor-General, Punjab appearing for the State and having gone through the record of the case with their assistance it has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C., wherein, he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmad v. Shaukat Ali and others (2006 SCM R 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C., is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCM R 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796)"
23. In the light of the above discussion, we are constrained to hold that the impugned conviction and sentence is violative of the law laid down by the apex court and the same cannot sustain which is hereby set aside by accepting this appeal.
24. The death sentence awarded to Hazrat Ali alias Ghani appellant is not CONFIRMED and Murder Reference No.127-2009 is answered in NEGATIVE. The appellant shall be released forthwith, if not required in any other criminal case.