CH. MUSHTAO AHMAD, J. Appellant Muhammad Saleem alias Boota has challenged his conviction and sentence through Criminal Appeal No.262 of 2001. He was tried by learned Additional Sessions Judge, Multan in case FIR No.55 dated 24.03.2000 registered under sections 302, 34 PPC at Police Station Qadirpur Rawn, District Multan. Complainant Muhammad Akram has filed criminal revision No.155 of 2001 seeking enhancement of sentence. I propose to decide both these matters through this consolidated judgment.
2. After evaluating the evidence brought on record, learned Additional Sessions Judge, Multan vide his judgment dated 29.03.2001 came to the conclusion that the prosecution succeeded to prove the guilt of accused Muhammad Saleem that he committed the murder of deceased Rabnawaz and charge is proved against him. Accordingly, he was convicted and sentenced as under:- Convicted U/S 302(b) PPC and sentenced to imprisonment for life. He was held liable to pay Rs.50,000/- as compensation in terms of section 544-A Cr.P.C. to the legal heirs of the deceased Rabnawaz and in case of default in payment thereof, to further undergo imprisonment for six months (S.I.).
Benefit of section 382-B Cr.P.C. was also extended to the appellant.
3. FIR was got registered by Muhammad Akram. Facts of the case, in brief, are that on 24.03.2000, at about 02:30 P.M, complainant alongwith Muhammad Aslam and Qaswar Abbas went to the house of Rabnawaz, brother-in-law of the complainant. They found outer door of house closed, which they opened and entered the house. Rabnawaz was lying on a cot in naked condition, whose clothes were lying near the door. A stabbed wound was found at abdomen of Rabnawaz. It was reported that murder of Rabnawaz was committed by some unknown persons with sharp edged weapon.
4. Investigation of this case was conducted by PW-11 Muhammad Shafi Inspector, who completed initial steps of investigation. He arrested the appellant (accused) alongwith co-accused Naeem and recovered dagger (P-3) on pointation of appellant. In the investigation conducted by PW-11, appellant and co-accused were found guilty. Thereafter, investigation was conducted by Muhammad Aftab Ahmad Malik (CW-1), who agreed with the opinion given by Muhammad Shafi Inspector (PW-11).
5. After completing investigation, the investigating officer submitted challan in the court concerned where the appellant alongwith co-accused were formally charge sheeted, to which they pleaded not guilty and claimed trial.
6. At the trial Dr. Fayyaz Khan Durrani appeared as PW-7, who conducted autopsy on the dead body of Rabnawaz on 25.03.2000 and observed the following injuries:-
1. A linear scratch 1 cm in length on right side of face just below right eye was present.
2. A linear abrasion 1.5 cm in length was present on right side of neck, 4 cm below right ear.
3. A semi circular bruise was present on left side of neck, 2 cm below angle of mandible which was teeth of upper Jaw.
4. A horizontal spindle shaped stabbed wound 4 cm x 1 cm on right side of lower abdomen 3 cm from right anterior iliac supine. There is also a vertical abrasion 4 cm long on medial side of stabbed wound. On dissection the stab after entering the skin, injured superficial structures cut spermatic cord and external iliac vessels (both vein and artery). The pelvic cavity was full of clotted blood (approximately 2 liters).
5. A bruise 2 cm x 1 1/2 cm on front of left leg 9 cm below knee was present.
6. An abrasion 3 cm x 2 cm on inner side of left leg 11 cm below knee joint was present.
Injuries No.1, 2 were caused by nails. Injury No.3 was caused by teeth. Injuries No.5, 6 by blunt weapon. Injury No.4 was caused by a sharp edged weapon. Injury No.4 was sufficient to cause death of a person in ordinary course of nature.
7. In order to prove its case, prosecution got examined 11 witnesses, whereas Muhammad Aftab Ahmad Malik was recorded as CW-1.
8. Appellant was examined under section 342 Cr.P.C. who denied the very factum of having committed the offence under reference. In reply to the question why this case against him and why the PWs have deposed against him, appellant replied as under:- "Deceased was having association with women of ill repute. Besides that he had reports against him, as such, on account of the above, some unknown person killed him in the darkness of night and he and his son had been made scapegoat and falsely involved in this case. He also stated that PWs deposed against him on the dictation of police."
9. Learned counsel for appellant argued that case of the prosecution is based on alleged extra judicial confession, which is a weak type of evidence and strong corroboration is required in order to convict an accused on the basis of extra judicial confession; that the extra judicial confession was neither proved nor corroborated by any independent evidence, but the learned trial court believing the same convicted the appellant; that even otherwise, witnesses are related inter se and their statements were not worth reliance; that recovery was planted one and even not proved by the prosecution; that no independent witness was associated in recovery proceedings.
10. Conversely, learned Additional Prosecutor General assisted by learned counsel for complainant argued that the prosecution had proved its case beyond shadow of doubt, as such learned trial court rightly convicted the appellant; that extra judicial confession was proved by the statements of PWs as well as corroborated by recovery of weapon of offence. Further contends that guilt of the appellant had been fully proved, but he was awarded lesser punishment, hence, he was liable to be awarded death sentence.
11. I have heard arguments advanced by learned counsel for the parties and perused the record with their able assistance.
12. In the case in hand, FIR was got registered against unknown persons. There was no direct evidence against the appellant/accused. Prosecution has relied on evidence of extra judicial confession and recovery. Incident was reported by Muhammad Akram, who while appearing as PW-6 deposed about extra judicial confession made by the appellant and his co-accused (since acquitted). According to PW-6, on 21.07.2000, Saleem accused and his son came to him at his Dera where Haq Nawaz PW and Hafiz Nazar Muhammad were also present. Appellant told that they had murdered Rabnawaz and for that they be forgiven. According to PW-6, Saleem appellant had stated the reason for murder of Rabnawaz that he had illicit relationship with his wife. Occurrence had taken place on 23.03.2000, whereas the alleged extra judicial confession was made on 21.07.2000. In cross examination PW-6 stated that FIR was registered after investigation. He admitted that all the PWs are relatives inter se. PW-5 Haq Nawaz deposed that accused Muhammad Saleem and Nadeem had admitted that they had committed murder of Rabnawaz and that he had submitted his affidavit. In cross examination he admitted that the deceased was his real brother. Both PW-5 and PW-6 are close relatives of the deceased.
13. Alleged extra judicial confession was made after about four months of the occurrence.
Confession of guilt in a criminal case is made by a person when he is forced by his conscious. No reason was brought on record for making alleged extra judicial confession by appellant alongwith his co-accused after lapse of such a long time. The persons before whom alleged extra judicial confession was made were not such influential persons who could help the appellant in seeking pardon from the family of the deceased. The PWs were closely related to the deceased three in number. On the other hand, appellant was not armed with any weapon at the time of making extra judicial confession and no attempt was made by the PWs to apprehend the appellant/accused.
Evidence of extra judicial confession, in the circumstances, could not be relied upon in a case of capital sentence. Reliance in this regard may be placed on the law laid down by apex court in cases i.e. "Imran alias Dully and another. V. The State and others" (2015 SCM R 155), "Tariq Iqbal @ Tariq. V. The State" (2012 SCM R 575) and "Hamid Nadeem V. The State" (2011 SCM R 1233). In a case i.e. "Imran alias Dully and another. V. The State and others" (2015 SCM R 155), the apex Court observed as under:- "Extra judicial confession was not sufficient for recording conviction on a capital charge unless it was strongly corroborated by tangible evidence coming from unimpeachable source."
In another case i.e. "Hamid Nadeem V. The State" (2011 SCM R 1233), the apex court scanned the law on the subject and observed as under:- "Conviction can be based on extra judicial confession when it is corroborated by other reliable evidence. Extra judicial confession is regarded as weak type of evidence by itself, utmost care and caution has to be exercised in placing reliance on such confession."
It is clear from bare reading of above cited case law that while placing reliance on extra judicial confession, utmost care and caution is to be exercised. Alleged recovery of dagger is not material when main stay of prosecution case, extra judicial confession, has been disbelieved.
14. On re-appraisal of evidence, I am of the considered opinion that prosecution had miserably failed to prove charge against the appellant. Findings recorded by learned trial court was not in line with facts established on record. Resultantly, Criminal Appeal No.262 of 2001 is hereby allowed and appellant Muhammad Saleem is acquitted of the charge by extending benefit of doubt. His surety stands discharged of the liability of bail bonds.
15. For the above reasons, Criminal Revision No.155 of 2001, for enhancement of sentence filed by complainant is dismissed.