Muhammad Tariq Abbasi, J.--This judgment shall decide the above captioned criminal appeals and the murder reference, as all are outcome of single judgment dated 18.5.2009, passed by the learned Additional Sessions Judge, Kabirwala, District Khanewal, whereby in case FIR No, 318 dated 3.11.2005, registered under Sections 302/392/109/411, PPC at Police Station, City kabirwala, district Khanewal, the appellants have been convicted and sentenced in the following terms:--
1. Muhammad Ilyas @ Lashi (appellant)
(i) Under Sections 458/34, PPC rigorous imprisonment for fourteen years with fine of Rs, 25,000/-, in default to further undergo S.I. For one month.
(ii) Under Sections 392/34, PPC rigorous imprisonment for ten years with fine of Rs,25,000/-, in default to further serve S.I. For one month.
(iii) Under Sections 411, PPC rigorous imprisonment for one year and fine of Rs,5000/-, failing which to further undergo S.I. For fifteen days.
(iv) Under Sections 302(b)/34, PPC death with compensation of Rs,2,00,000/- payable to the legal' heirs of the deceased, in default to undergo SI for six months.
2. Muhammad Akhtar (appellant)
(i) Under Sections 458/34, PPC rigorous imprisonment, for fourteen years and fine of RS.25,000/-, in default to further undergo S.I. For one month.
(ii) Under Sections 392/34, PPC rigorous imprisonment for ten years with fine of Rs,25,000/-, in default to further serve S.I. For one month.
(iii) Under Sections 411, PPC rigorous imprisonment for one year and fine of Rs,5000/-, failing which to further undergo S.I. For fifteen days.
(iv) Under Section 302(b)134, PPC imprisonment for life, with compensation of Rs,2,00,000/- payable to legal heirs of the deceased, failing which to further undergo SI for six months.
It was directed that all the sentences awarded to Muhammad Akhtar (appellant/convict) shall run concurrently and benefit of Section 382-B Cr.P.C. Shall be applicable to him.
2. The facts are that Waseem Abbas, complainant (PW-8) made a statement/Fard Biyan (Ex.PH), with the contention that during that during the night between 2/3-11-2005, when he along with his brother Adnan, Mohsin Raza (PW-9) and mother Mst. Naheed was sleeping in a room of his house, whereas his another brother, namely, Ahsan Raza (deceased) was sleeping in the Baithak, at about 1:30 a.m. Suddenly door of the room was opened and they saw two unknown persons, one armed with 30 bore pistol, whereas the other empty handed, while apprehending Ahsan Raza (deceased) on gun point, entered in the room; both accused forcibly picked up the mobile phone and Rs,5,000 from the pocket of Mohsin Raza (PW-9); they took keys from the mother of the complainant and the accused who has empty hand started the search, whereas the accused having a pistol went out of the room; the complainant party over powered the accused who was in the room, who raised alarm, whereupon armed accused came and made direct fire, which hit at back side of the head of Ahsan Raza (deceased) and he fell down; the accused while firing fled away; Ahsan Raza in an injured condition was shifted to the hospital, where he succumbed to the injuries. On the basis of the above said complaint, the case was registered through FIR (Ex.PA).
3. During the investigation, the appellants were found to be involved, hence arrested and challaned. The learned trial Court charge sheeted them, they pleaded not guilty and claimed the trial, hence the prosecution evidence was summoned and recorded. As many as 20-witnesses were got examined by the prosecution. Gist of evidence of the material witnesses was as under:--
(i) PW-1 Dr. Muhammad Yasin conducted the postmortem examination of the dead body of Ahsan Raza and prepared the report (Ex.PE) and its diagram (Ex.PE/1). At that time, the following injuries on the dead body were noticed:--
1. A lacerated wound 1 cm x half cm on back of skull 5 cm away from the left ear, margins were inverted. It was entry wound.
2. A lacerated wound 2 cm x half cm on inner lower part of right eyebrow. Margins were inverted. It was exit wound.
As per the witness, the above said injuries were anti-mortem in nature, caused by fire-arm and cause of death, which was within few minutes.
(ii) PW-3 Safdar Hussain had identified the dead body, at the time of its post-mortem examination and also attested the memo. Ex.PC, through which the last worn blood stained clothes of the deceased (P-1 and P-2) were taken into possession by the I.O. He had also attested the memo. Ex.PD, through which mobile-phone (P-3) got recovered by Muhammad Akhtar, appellant was secured by the I.O.
(iii) PW-4 Ghulam Ahmed narrated about extra judicial confession, allegedly made by Muhammad Ilyas, appellant on 4.11.2005 before him and Zahoor Hassan (given up PW).
(iv) PW-5 Muhammad Abdullah Khan stated about extra judicial confession, allegedly made by Muhammad Akhter, appellant on 6.11.2005 before him and Afzal (given up PW).
(v) PW-8 Waseem Abbas, complainant as well as an eyewitness, deposed almost the same facts as were described in the complaint/Fard Biyan (Ex.PH). He further disclosed that during the test identification parade, he recognized Muhammad Ilyas (appellant/convict) who was armed with .30 bore pistol, whereas Muhammad Akhtar (appellant/convict), who was empty handed and their 3 companion was Allah Ditta (since P.0).
(vi) PW-9 Mohsin Raza stated almost the same facts as were narrated by the above named complainant (PW-8). He also attested the memos Ex. PI and Ex.PJ, through which the blood stained earth and the empties (P-4 to P7) collected from the spot wen respectively taken by the I.O. Into possession.
(vii) PW-11 Muhammad Ali Constable had witnessed the proceedings, through which Muhammad Ilyas (appellant/convict) got recovered Rs,3000/- (P-4/1 to 3) from his residential house and taken into possession by the I.O. Through memo. Ex.PK.
(viii) PW-14 Arshad Mehmood, the then Special Judicial Magistrate, Khanewal conducted the proceedings (Ex.PM) of test identification parade dated 30.1.2008, during which Muhammad Akhtar (appellant/convict) was allegedly identified by PWs.
(ix) PW-15 Syed Naveed Raza Bokhari, Magistrate Section 30, Kabirwala had conducted the proceedings (Ex.P0) of test identification parade dated 28.11.2005, during which Ilyas (appellant/convict) was identified by PWs.
(x) PW-16 Mazhar Nawaz SI had investigated the case. He arrested Muhammad Akhtar (appellant/convict) on 17.1.2008 and got sent him to jail for test identification parade; he applied for test identification parade which was ultimately held on 30.1.2008; he obtained physical remand of, the above named appellant, who made a disclosure and got recovered mobile phone (P-3) from his house which was taken into possession through memo. Ex.PD.
(xi) PW-17 Fazal Hussain, SI had also investigate the case; he arrested Muhammad Ilyas (appellant/convict) on17.11.2005 and got him sent to the judicial lock up for the, purpose of test identification parade, which later on was held on 28.11.2005; he had also given secondary evidence regarding the proceedings conducted by Akhtar Ali, SI (since dead) and brought on the record the documents prepared by the said official as Ex.PF, Ex.PG, Ex.PJ, Ex.P-I, Ex.PR, Ex.PC, Ex.PB, Ex.PB/1 and Ex.PB/2.
(xii) PW-18 Muhammad Nawaz, SI had also carried on the investigation, during which obtained physical remand of Ilyas (appellant/convict); took into possession through memo. (Ex.PQ) .30 bore pistol (P-11) along with five live bullets (P-12/1 to 5). Which were got recovered by the said appellant; took into possession Rs,3000/- (P-8/1-3), which was got recovered by Ilyas (appellant), recorded statements under Section 161 of, Cr.P.C. Of the relevant witnesses at relevant stages.
(xiii) PW-19 Muhammad Zafar Constable had attested the memo. Through which pistol (P-11) and live bullets (P-12/1-5) got recovered by Ilyas (appellant) were taken into possession by the I.O. He had also attested the memo. (Ex.PK) through which on amount of Rs,3000/- (P-8/1-3) got recovered by the above named appellant was secured by the I.O.
4. After examination of the prosecution witnesses, the reports of the Chemical Examiner, Serologist and Forensic Science Laboratory were tendered in evidence as Ex.PT, Ex.PU and Ex.PV respectively and case for the prosecution was closed. Thereafter the appellants were examined under Section 342, Cr.P.C., during which the questions emerging from the prosecution evidence were put to them.
They denied almost all the questions while pleading their innocence and false involvement in the case. The question "Why this case against you and why the PWs have deposed against you" was answered by Muhammad Ilyas, appellant in the following words:- "PW-8 & PW-9 have deposed against me being real brothers of the deceased whereas the other PWs have been incorporated against me at the Instance of Ghazanfar Ali Bhutta, City Nazim Kabirwala with whose family we have long standing enmity. I have been involved in a false case committed by unknown culprits at the mid of night. PW-8 -and PW-9 knew me previously being residents of same vicinity. The police took me into custody during the period N; hen tracks were being traced from the spot and on finding that the tracks leading from the spot did not correspond with my footprints coupled with the fact that the PWs also on seeing me at the Police Station explained the fact that I was already known to them and as such they exonerated me, therefore, police released me but later on at the instance of Ghazanfar Ali Bhutta, police again haulted me up, kept in wrongful confinement for further confirming my identity at the Police Station as well as at the der a of said Nazim in order to implicate me in this case. My photographs were also got prepared during this period and as a result the identification parade was successfully got prepared against me. The recoveries of pistol .30 bore and Rs,3000/- were falsely planted upon me having been provided by the said City Nazim in order to strength this false case. Both PW-8 & PW-9 were not present in the house during the night of occurrence as Waseem Abbas complainant was present in Darul Aloom Eidgah, Kabirwala from 20th of Ranizan up till the night of occurrence in Ehtikaf and he had left Darul Aloom on receipt of information about the murder of his brother whereas, Mohsin Raza was studying in Misali School Muzaffargarh. I am absolutely innocent and have been implicated in this case falsely."
The above mentioned question was answered by Muhammad Akhtar, appellant as follows:-- "Both witnesses PW-8 & PW 9 have deposed against me due to their relationship with Ahsan Raza deceased their brother and the other PWs having being incorporated at the instance of Ghazanfar Ali Bhutta, Advocate City Nazim in view of old enmity. It was a blind occurrence taking place at the mid of night and the culprit not being known to the PWs. I am implicated in this case by the complainant party at the instance of Ghaz afar Ali Bhutta due to the fact that in the year 1974 Abdul Hameed brother of Ghazanfar Ali Bhutta City Nazim committed the murder of Muhammad Hussain maternal uncle of Muhammad Ashraf my father and was running away from the spot when he was chased by Muhammad Ramzan real brother of said Muhammad Hussain and was done to death with a Kassi below about 15 minutes after the first occurrence. Gul Muhammad father of Ghazanfar Ali Bhutta got registered the case against said Muhammad Ramzan who was convicted and sentenced to undergo R.I. For seven years by the trial Court and was acquitted in appeal. Since then both the parties remained at daggers drawn with each other, After this occurrence Bhutta family availing the opportunity, the culprits of this case being not known to them implicated me falsely in this case in order to wreak vengeance, the complainant party being their party men and having close relations with them. I am absolutely innocent. The recovery of mobile phone is an afterthought evidence engineered much after the occurrence to connect me with the occurrence in the absence of any other sort of evidence against me.
Both PW-8 & PW-9 knew me being residence of the same vicinity. It was at the pointation of Waseem Abbas that I was arrested from the factory situated at Raiwind brought to Police Station Kabirwala, kept their in wrongful confinement for 15/20 days where my identity was confirmed by consistently shown to the witnesses as a result of which the identification parade was successfully carried out."
Both opted to lead evidence in their defence but refused to make statements under Section 340(2), Cr.P.C. In defence one Allah Wasaya was not examined as DW-1. He deposed that in the month of Ramzan, 2005 he started 'Masnoon Ehtikaf' on 20th of Ramzan; with him Waseem Abbas complainant, also performed the Ehtikaf; during the night between 29/30th of Ramzan at about 2/2:30 a.m. He woke up for offering tahajad prayer and came to know from the people that Waseem Abbas complainant, had left for his home as his brother was urdered.
5. After completing the above mentioned proceedings, the learned trial Court had pronounced the impugned judgment, in the above mentioned terms. Consequently, the criminal appeals and murder reference in hand.
6. The learned counsel for the appellants has argued that it as a dark night unseen occurrence; neither the complainant (PW-8) mor Mohsin Raza (PW-9) were available at the spot nor seen the occurrence; the appellants with mala-fide were involved on the basis of false, incorrect and inadmissible proceedings; the prosecution had failed to connect the appellants with the alleged occurrence but the Learned trial Court did not give any consideration to the said aspect, hence the impugned judgment is not acceptable under the law. It is prayed that by accepting the appeals, the impugned judgment may be set-aside and the appellants may be acquitted of the charge.
7. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the above mentioned appeals, white declaring the impugned judgment, to be result of correct appreciation and evaluation of the material available on the record, hence call of the day.
8. Arguments of all the sides have been heard and the record has been perused.
9. In the complaint/Fard Biyan (Ex.PH), accused who had committed the occurrence were not named and only their features were given. The appellants were involved in the case on the basis of alleged extra-Judicial confession, test identification parade and the recoveries allegedly effected from them. Here-in-below the above mentioned pieces of evidence would be discussed and thereafter the conclusion will be drawn.
10. According to Ghulam Ahmed (PW-4) on 4.11.2005, when he along with Zahoor Hassan (given up PW) was available in his house, Muhammad Ilyas, appellant/convict came there and while admitting his guilt towards commission of the occurrence requested him to seek pardon for him from the complainant party and thereafter went away. Whereas, as per Muhammad Abdullah Khan (PW-5) on 6.11.2005, Muhammad Akhtar, appellant/convict admitted his guilt before him and Afzal (given up PW) and requested them to get pardon for him from the complainant party. As per the record, the above mentioned alleged extra judicial confession made by Muhammad Ilyas, appellant/convict before PW-4 on 4.11.2005 was brought by the PW-4 into the notice of the complainant party on the next day i,e, 5.11.2005 at about 9/10:00 a.m. The above named witness had also got recorded statement under Section 161, Cr.P.C, on 5.11.2005. Similarly, Muhammad Abdullah Khan (PW-5), who by profession was an advocate, had intimated the complainant party as well as the police on 7.11.2005, regarding the confession allegedly made by Muhammad Akhtar, appellant/convict on 6.11.2005. When both the above named witnesses were having knowledge about commission of the alleged occurrence on 3.11.2005, then their conduct of letting the appellants to go, while promising that offer for their pardon will be made, seems very strange and as such does not appeal to a prudent mind. Both above named witnesses were not the persons of authority, hence, the allegedly admission made by the appellants, before them and requesting them to get pardon for them, from the complainant party seems unjustified. The Hon'ble Supreme Court of Pakistan while dealing with same preposition in the case of Sarfraz Khan Versus 1 he State and 2 others (1996 SCM R 188) disbelieved such type of extra judicial confession. The relevant portion whereof reads as under.
"...PW 9 the witness of extra-judicial confession has stated that the- accused were not previously known to him and after making confession, they had slipped away from his Dera where they had made the extra-judicial confession. So, there are circumstances appearing from the, case which tend to show that Such a confession was unlikely to be made and had not, in fact been made. Syed Ghulam Haider Shah was not previously known to them and by that time no one else knew that the accused had committed the crime. We fail to understand as to what had compelled the accused to approach him and make extra-judicial confession of murder before him, more particularly when he was not in a position to help them in the matter."
Furthermore, Muhammad Abdullah Khan (PW-5) was an advocate; hence allowing an accused to go back and not handing him over to the law enforcement authority have made, many objections towards the proceedings alleged by him. Same was the situation of Ghulam Ahmed (PW-4) who did not take any step towards apprehension of the above named appellant and allowed him to peacefully leave the spot has made many doubts over the story narrated by him.
11. It is well settled principal that extra judicial confession is a very weak type of evidence hence until and unless not corroborated with strong, cogent and convincing evidence, conviction of an accused could not be based only upon such type of evidence. Reliance in this regard is placed in cases Sarfraz Khan 'Versus The State and 2 others (1996 SCM R 188), Sajid Mumtaz and others versus Basharat and other (2006 SCM R 231) and Muhammad Aslam verus Sabir Hussain and others (2009 SCM R 985). In the case Sarfraz Khan (Supra) the Hon'ble Supreme Court held as under: "The extra Judicial confession is a weak type of evidence which can easily be procured whenever direct evidence of the crime is not available. So, while placing reliance on it, the Courts have emphasized' the use of utmost care and caution."
12. It has been established on the record, during the statement or Waseem Abbas, complainant (PW-8) that, on 7.11.2005 he moved an application (Ex.DC) before the SHO nominating the appellants to be the accused. Therefore, when the appellants were already known to the complainant party on 7.11.2005, the proceedings of the test identification parade dated 28.11.2005 and 30.1.2008 have become immaterial and inconsequential.
13. The complainant (PW-8) had admitted that during the days of occurrence he used to perform Ehtikaf but it was being performed only during day time. But the above named DW-1 had negated the version of the complainant while saying that from 20th of Ramzan till the night between 29/30th of Ramzan, the complainant had been performing 'Masnoon Ehtikaf with him, when he left Ehtikaf due to murder of his brother.
14. The recovery of Rs,3000/- (P-8/1-3) at the instance of Muhammad Ilyas, appellant has been alleged. Nothing is available on the record to suggest that the above mentioned currency notes were the same, which were allegedly robbed during the alleged occurrence. Recovery of mobile phone (P 3) at the instance of Muhammad Akhtar, appellant has also been alleged but nothing has been brought on the record that it was the same mobile phone which was robbed during the alleged occurrence. Therefore, the said recoveries have not benefited the alleged prosecution story.
15. Recovery of pistol (P-11) from Muhammad Ilyas, appellant on 20.12.2005 has been alleged.
Matching of the empties collected from the spot with the said pistol has also been alleged. The empties were recovered on 3.11.2008 and allegedly dispatched to the laboratory on 21.11.2005, without any sound justification. As per the report of FSL (Ex.PV) the parcels of the empties and pistol were received in the office on 29.11.2005 and 22.11.2005 respectively. When the pistol was recovered on 20.12.2005 then deposit of its parcel in the laboratory on any of the above mentioned dales has cast serious doubts towards dispatch and receipt of the weapon in the laboratory. The said fact has also made the above mentioned report, towards matching of the empties with the weapon doubtful.
16. The above mentioned facts and circumstances have made involvement and implication of appellants in the alleged occurrence highly doubtful and it is unsafe to maintain their conviction on the basis of such type of evidence because it is bounden duty of the prosecution to prove its case against the accused beyond any shadow of doubt. It is an axiomatic and universally recognized principle of law that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must C be resolved in favour of the accused. We are fortified by the dictum laid down in the cases "Muhammad Khan and another versus The State" (1999 SCM R 1220) and "Muhammad Akram versus the State" (2009 SCM R 230).
Relevant potion of the case Muhammad Akram (Supra) is reproduced below:-- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State(1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating 'doubts. If there is circumstance which crested reasonable; doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
Further reliance in this regard may be made to the case "Ayub Masih vs. The State" (PLD 2002 SC 1048), whereby it has been directed that while dealing with a criminal case, the golden principle of law "It is better that ten guilty persons be acquitted, rather than one innocent person be convicted"should always kept in mind.
17. As a result of what has been discussed above, we are of the opinion that the prosecution has failed to prove the charge against the appellants, beyond shadow of doubt. Consequently, the criminal appeals (Crl. Appeal No, 391 of 2009 and Crl. Appeal No, 392 of 2009) are accepted, the impugned judgment is set-aside and appellants are acquitted of the charge, while extending them the benefit of doubt. They are in custody, hence it is directed that if not required to be detained in any other matter, be released forthwith. The disposal of the case property shall be as directed by the learned trial Court.
18. Murder Reference No, 169 of 2009 is answered in negative and death sentence awarded to Muhammad Ilyas alias Lashi (appellant/convict) by the learned trial Court is not confirmed.