Abdul Sami Khan, J: Through the captioned appeals filed under section 410, Cr.P.C. Muhammad Younas, Sultan and Mst. Haleeman Bibi appellants have assailed the judgment dated 31.05.2006 handed down by the learned Additional Sessions Judge, Sargodha through which Muhammad Younas appellant was convicted under section 302(b) PPC read with section 34, PPC for the murder of Kameer deceased and was sentenced to undergo rigorous imprisonment for 25 years. He was also ordered to pay compensation of Rs.100,000/- (Rupees one hundred thousand only) to the legal heirs of the deceased under section 544-A, Cr.P.C or in case of default of payment thereof to further undergo simple imprisonment for six months whereas Sultan and Mst. Haleeman Bibi appellants were convicted for an offence under section 302(c), PPC read with section 34, PPC and they were sentenced to undergo rigorous imprisonment for 14 years. They were also ordered to payment compensation to the tune of Rs. 50,000/- (Rupees fifth thousand only) each to the legal heirs of deceased under section 544-A, Cr.P.C. or in default of payment of compensation to further undergo simple imprisonment for six months each. Both the appellants namely Muhammad Younas and Sultan were also convicted for an offence under section 364, PPC and they were sentenced to undergo rigorous imprisonment for seven years each alongwith fine of Rs. 10,000/- each or in default of payment of fine to further undergo simple imprisonment for one month each.
All the appellants, Muhammad Younas, Sultan and Mst. Haleeman Bibi appellants were also convicted in respect of an offence under section 201, PPC and they were sentenced to undergo rigorous imprisonment for five years each alongwith fine of Rs. 5000/- each or in default of payment of fine to further undergo simple imprisonment for one month each. The appellants have filed the captioned appeals against their convictions and sentences whereas the complainant filed Criminal Revision No. 623 of 2006 for suitably enhancing the sentences and amount of fines passed against the appellants. It may not be out of place to point out here that at the time of admitting Criminal Appeal No. 1036 of 2006 this Court has also issued notice to Sultan appellant for recording his conviction under section 302(b), PPC in case of dismissal of his appeal, therefore, the Office has prepared a separate file and numbered the same as Criminal Revision No. 1080 of 2006. We propose to decide all these matters together through this consolidated judgment.
2. According to the case of prosecution as mentioned in the FIR the complainant is resident of Chak No. 125/N.B. and he is agriculturalist by profession. His brother Kameer was renowned player of Kabaddi who used to play Kabaddi in surrounding areas on the asking of people of vicinity.
On15.10.2005 when the complainant was present at his Dera alongwith Muhammad Afzal and Muhammad Bakhsh at that time Sultan and Muhammad Younas residents of Chak No. 129/N.B., armed with Pump action came on cycle and asked about Kameer brother of the complainant upon which the latter asked them is there anything wrong for which they asked the complainant that they have to talk with him about Kabaddi because some of their friends came to whom they had stayed in the house of one Khizer Hayat. In the meanwhile Kameer also came there to whom both the persons say something separately upon which Kameer left the Dera by saying that he would come after meeting the people in the house of Khizer Hayat. They all three left the Dera and Kameer brother of the complainant did not return till late hours of night, on which the complainant alongwith Muhammad Afzal and Muhammad Bakhsh proceeded to the house of Khizer Hayat and upon inquiring from his children, they said to them that their father was not at home and their mother Mst. Haleeman Bibi also went to Chak No. 129/N.B. alongwith Younis and Sultan. When the complainant asked about guests the children have showed their ignorance about them for which the complainant developed suspicion in his mind and he proceeded in search of his brother but in the way Muhammad Hayat and Muhammad Nawaz, residents of Sillanwali met him who told them that they have seen Kameer talking with Muhammad Younas, Sultan and Mst. Haleeman Bibi on the bank of canal. Upon this the complainant inquired from the house of Muhammad Younas situated at Chak No. 129/N.B. but it was found that they have not come there. It is stated by the complainant in the FIR that he has searched his brother Kameer but could not found him.
Muhammad Younas and Sultan in the garb of Kabaddi abducted his brother Kameer and they have confined him at some unknown place for committing his murder or they have done him death. The motive is stated to be an altercation took place between Kameer and Muhammad Younas who used to visit the house of Mst. Haleema Bibi for which Kameer forbade him. The complainant has stated in the FIR that he had been searching for his brother but he could not find him and he has also expressed his suspicion that Muhammad Younas, Sultan and Mst. Haleema Bibi have committed his murder. Upon statement of Allah Ditta complainant formal FIR No. 439/05, dated 17.10.2005 has been registered at Police Station Sillanwali, District Sargodha in respect of an offence under section 364, PPC.
3. The prosecution in order to prove its case against the appellants examined as many as sixteen witnesses before the learned trial court. The occurrence account in this case has been furnished by Muhammad Ibrahim (PW12) and Mishri (PW13). Last seen evidence was furnished by Muhammad Hayat (PW7) whereas evidence of extra-judicial confession was furnished by Muhammad Yar (PW8). Allah Ditta, complainant (PW10) appeared before the learned trial court and he reiterated the story mentioned in the FIR and Muhammad Afzal (11) appeared in support of the complainant.
The evidence with regard to recovery of cycle has been furnished by Muhammad Nawaz (PW4) whereas evidence with regard to recovery of gun has been furnished by Ameer Abdullah (PW14).
The remaining evidence adduced by the prosecution witnesses is more or less formal in nature.
4. In their statements recorded under section 342, Cr.P.C. the appellants have controverted all the allegations leveled against them by the prosecution and they have also professed their innocence.
The appellants neither recorded their statements under section 340(2) Cr.P.C. in disproof of allegations leveled against them by the prosecution nor have they produced any evidence in their defence.
5. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial court proceeded to convict and sentence the appellants as mentioned in paragraph No.1 of this judgment.
6. Learned counsel for the appellants contends that the judgment is against law and facts of the case. The material available on record does not justify the convictions and sentences awarded to the appellants and the same is not maintainable in the eyes of law. As a matter of fact it was an unseen occurrence and that is why the FIR in this case has been lodged with a delay of two days in which the appellants were falsely implicated. The appellants have been involved by the complainant and eyewitnesses due to party-fiction prevailed in the village and they have no concern at all with the murder of deceased. The last seen evidence furnished by Muhammad Hayat (PW6) has not been corroborated through any independent source. Even Muhammad Nawaz has not been produced by the prosecution to furnish the evidence of last-seen in this case.
Likewise, the evidence of extra-judicial confession furnished by Muhammad Yar (PW8) has also not been corroborated by any witness as Haji Ahmad, his companion with whom he was coming from saying Fajr prayer when the appellants alleged to have made extra-judicial confession before him has not been produced during trial to substantiated evidence of extra-judicial confession. The recovered articles, i.e. Pump action and Cycle are planted upon the appellants so recovery in this case is inconsequential. The statements of the prosecution witnesses are full of contradictions and discrepancies which are fatal to the prosecution's case. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. The learned counsel pray for acquittal of the appellants from the charge.
8. On the other hand learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed the contentions of the learned counsel for the appellants and contends that the appellants were nominated by the complainant in the FIR as the culprits who have committed the murder of deceased and when they realized that every has come to know about their involvement they have confessed their guilt before Muhammad Yar (PW8). The parties have no previous enmity so the possibility of false implication of the appellants in this case or their substitution in lieu of real culprits is a rare phenomena and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprit. The recovery of Pump action from Muhammad Younas appellant and Cycle from Sultan appellant are available on record to connect them with the commission of offence. The prosecution has furnished ocular account, last-seen evidence, evidence with regard to extra-judicial confession, recoveries and the motive. The prosecution witnesses are consistent on each and every material point. The minor discrepancies have cropped up in the case with the passage of time and that are not fatal to the prosecution case. The prosecution has proved its case against the appellants beyond any shadow of doubt, thus, the appeals filed by the appellants be dismissed.
9. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also minutely scanned the record with their able assistance.
10. It has been observed by us that allegedly the occurrence in this case took place on 15.10.2005 at Isha-Wela when Muhammad Ibrahim (PW12) and Mishri (PW13) were passing on the bank of canal on a motorcycle who have allegedly seen the appellants committing the murder of deceased Dameer but at the same time it is also an admitted fact that the matter was reported to the police on 17.10.2005 at 3.20 pm, i.e. with a delay of two days wherein the appellants were duly named but no allegation of commission of murder of Kameer has been levelled against them and only suspicion to this regard has been expressed by the complainant. According to the story narrated in the FIR Kameer deceased had been taken by Muhammad Younis and Sultan appellants at a time when Allah Ditta, complainant (PW10) and Muhammad Afzal (PW11) were also present but in the FIR the complainant has only expressed suspicion and he was not certain at that time that the above said appellants with the help of their co-convict Mst. Haleeman Bibi appellant had committed the occurrence. The reasons advanced by the above said two eyewitnesses for not bringing the matter of murder of Kameer deceased into the notice of the complainant for two days is not justified at all because if for the sake of arguments it is believed that they have kept mum for two days due to fear to their life then why they have told the complainant regarding commission of murder after two days when the fear was not disappeared and the appellants were out of jail, this fact creates doubt regarding the story mentioned in the FIR. Thus, we are of the definite view that when the murder of Kameer came into the knowledge of the complainant he after deliberations and consultation has reported the matter to the police.
11. The prosecution keeps in its fold two eyewitnesses who have furnished the ocular account in this case, i.e. Muhammad Ibraheem (PW2) and Mishri (PW13) who both are residents of the same locality and also related to the complainant Allah Ditta (PW10). While appearing before the learned trial court both the above said eyewitnesses have admitted during their cross-examination that they have got recorded their statements before the police under section 161, Cr.P.C. for the first time on 18.10.2005 with a delay of three days of the occurrence which has been reported in this case on 17.10.2005. It is also an intriguing feature in this case that if both the eyewitnesses have told the complainant regarding incident after two days then why they got recorded their statements before the police with a further delay of one day, this shows that the prosecution has consumed time to carve out a false and frivolous story to falsely implicate the appellants in this false case. Even in their statements both the eyewitnesses have not disclosed their purpose for going to Sillanwali whereas both of them during their cross-examination have categorically expressed their purpose for going to Sillanwali and such improvement on their part falsify their evidence adduced before the learned trial court. It is settled law that evidence of a witness who made dishonest improvement in order to bring his statement in line with the ocular account lost its credibility.
Reliance in this regard can be placed on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCM R 1812) and Amin Ali and another v. The State (2011 SCM R 323). Therefore, the evidence adduced by eyewitnesses with regard to the ocular account remained unable to inspire our confidence.
12. According to the case of the prosecution Kameer deceased was caught hold by Sultan as well as by Mst. Haleeman Bibi appellants when he was fired upon by Muhammad Younas appellant within the view of eyewitnesses. We have pondered on this aspect of the matter with great care and caution and we have observed that it does not appeal to a prudent mind that somebody would put his/her life in danger by catching hold a person and allow or facilitate his/her co-convict to make a fatal fire-shot at the vital part of body, i.e. head. In ordinary course of nature when fire- shot was made everybody tried his/her level best to save herself/himself by taking shelter behind something in surrounding areas. So, the roles attributed by the eyewitnesses to the appellants at belated stage are not justified from the evidence of eyewitnesses. According to the eyewitnesses Mst. Haleeman Bibi appellant has also caught hold the deceased at the time of occurrence but we have observed in this context that in our society, especially according to village culture a woman is not allowed going outside at the bank of canal with unknown persons at night time for committing the murder of a person by leaving her children in the house at a time when their father was also not present. Thus, the eyewitness account furnished by Muhammad Ibraheem (PW2) and Mishri (PW13) who are interested witnesses is not believable, therefore, the ocular account in this case is not proved.
13. Apart from ocular account the prosecution has also furnished evidence of last-seen to prove the case against the appellants. Last-seen evidence in this case has been furnished by Muhammad Hayat (PW7). A careful visitation of his evidence adduced before the learned trial court shows that he is a related and chance witness and he has not furnished any valid reason that when he has seen the deceased who is his paternal cousin in the company of the appellants on 15.10.2005 then why he has not told this material fact to the complainant who has expressed only suspicion in the FIR regarding commission of offence by the appellants. Admittedly this witness has not intercepted the deceased while going with the appellants who were allegedly armed with pump action at night time. It may not be out of place to point out here that neither the complainant intercepted the deceased when he proceeded with the appellants from his own Dera nor this witness has intercepted the deceased at night time and allowed him to go with the appellants who were having Pump action gun. His statement under section 161, Cr.P.C. and the statement adduced by him before the learned trial court contain material contradictions which suggested falsity of evidence just to provide strength to the prosecution story and to involve the appellants in this case. Even Muhammad Nawaz who was an independent person was not produced by the prosecution to adduce evidence or to substantiate the evidence of above said related and chance witness. In these circumstances an adverse inference can be drawn that had Muhammad Nawaz been produced by the prosecution before the learned trial court he might have not supported the prosecution story qua last-seen evidence. Thus, the last-seen evidence produced by the prosecution does not inspire our confidence to be believed upon the same.
14. Another piece of evidence relied upon by the prosecution is the extra-judicial confession made by the appellants before Muhammad Yar (PW8) and one Haji Ahmad. He is also a related witness as he himself admitted during his cross-examination that Allah Ditta complainant as well as Kameer deceased were his nephews. According to his evidence both the appellants Sultan and Mst. Haleeman Bibi have made joint confession before him and Haji Ahmad. It is settled law that joint confession has no legal sanctity in the eyes of law. During his evidence he has not uttered a single word that why both the above said appellants have chosen him to seek pardon from the heirs of Kameer deceased on their behalf. He has also made dishonest improvements during his evidence before the learned trial court. His evidence has also not found corroboration from any independent source because admittedly Haji Ahmad has not been produced by the prosecution before the learned trial court to adduce evidence with regard to extra-judicial confession made by the appellants. It is of most important to observe here that when, according to the prosecution's case, direct evidence was available in shape of statements of Muhammad Ibraheem (PW12) and Mishri (PW13) then why the prosecution feels necessary of last-seen evidence inasmuch as evidence of extra-judicial confession and the only answer lies in this regard with us is to the effect that the prosecution was trying its level best to involve the appellants in this unseen occurrence and to fabricate maximum evidence against the appellants. It seems that evidence of extra- judicial confession has been manufactured by the prosecution at a belated stage just to strengthen the case of the prosecution against the appellants. Even otherwise, extra-judicial confession is always considered to be a weak type of evidence and it cannot be believed in absence of cogent and strong piece of other evidence which is lacking in this case.
15. Besides the above discussed evidence against the appellants, the prosecution has also relied upon recovery of Pump action gun (P4) with two live cartridges (P5/1-2) which has allegedly been recovered from Muhammad Younas appellant during investigation of this case and the same has been taken into possession by the investigation officer on 25.10.2005 vide recovery memo (Ex. PM) whereas a crime-empty has also been taken into possession by the investigating officer on 18.10.2005 vide recovery memo Ex. PL whereas according to statement of Khizar Hayat, C-742(PW5) he has received crime-empty from Muhammad Ashraf on 25.10.2005 so as to deposited the same in the Office of Chemical Examiner which was deposited by him on 26.10.2005. The prosecution has not furnished any explanation that why the crime-empty has been kept in Maal Khana for 10 days and send the same to the Office of Forensic Science Laboratory when the gun was recovered from Muhammad Younas on 25.10.2005. Even according to the report of Forensic Science Laboratory (Ex.
PR) no opinion has been formed with regarding to matching of crime-empty with the recovered gun. Thus, the recovery to the extent of gun is inconsequential. So far as recovery of Cycle (P1) from Sultan appellant is concerned, there is no evidence from where it can be established with certainty that it was the same cycle which was used during the occurrence. Even otherwise the ocular account and the story mentioned in the FIR has already been disbelieved by us, therefore, recovery of cycle alone cannot connect Sultan appellant with the commission of offence, especially in the circumstances when no private witness has been associated with the recovery proceedings.
Hence, the recovery in this case is of no help to the prosecution and is disbelieved by us. Similarly the medical evidence in this case is only suggested that Kameer deceased has been done to death by firearm. It is settled law that medical evidence is only used for confirmation of ocular evidence with regard to seat of injury, time of occurrence and weapon of offence, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused persons for proving his culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCM R 866).
16. Now the only piece of evidence to be discussed by us here is motive set up by the prosecution in the FIR. According to the prosecution story mentioned in the FIR Kameer deceased has a suspicion that Muhammad Younas appellant has illicit liaison with Mst. Haleema Bibi appellant for which he forbade him and in result thereof an altercation took place between them but later on the matter was patched up. If this motive is believed to be true then the whole story of abduction of Kameer deceased by the appellants becomes automatically false because in presence of strained relations between Kameer deceased and Muhammad Younas appellant the complainant would not have allowed the former to accompanying the latter who was duly armed with Pump action gun. Taking this aspect by another angle, if the relations were so strained between Muhammad Younas appellant and Kameer deceased and Muhammad Younas wanted to take revenge of his insult then he would not dare to take the deceased with him from his own Dera in presence of his real brother (complainant) and Muhammad Afzal in daylight and that too when he Criminal Appeals No. 1051,1036 & 1113 of 2006 & 13 Criminal Revisions No. 623 & 1036 of 2006 was duly armed with Pump action gun. Even otherwise the prosecution has also not produced any independent witness to prove the altercation allegedly took place between Kameer deceased and Muhammad Younas appellant. In the background of such a situation the motive set up by the prosecution in the FIR is remained far from being proved and the real cause of death of Kameer deceased has not been brought on record of this case. Therefore, in absence of any motive the responsibility of murder if Kammer cannot be put on the shoulder of the appellants.
17. Law is quite settled on the point that in criminal case, the chain of circumstances should be so strong or solid that one end of chain should start right from the toe of the deceased and the same should encircle a dense grip around the neck of the accused. A slight discontinuity of circumstance would definitely make the chain loose and also breaks the geometrical progression. It is also settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accused. It is also golden principle of criminal jurisprudence that it is better to acquit hundred guilty persons than to convict a single innocent person.
16. The upshot of our discussion made above is that the prosecution has failed to prove its case against the appellants beyond any reasonable shadow of doubt. Criminal Appeals No. 1051, 1036 and 1113 of 2006 are, therefore, allowed and the appellants are acquitted of the charge by extending benefit of doubt to them. All the appellants are on bails, their bail bonds are released and their sureties are discharged from liabilities.
17. In consequence of our discussion made in preceding paragraphs Criminal Revision No. 623 of 2006 filed by complainant Allah Ditta (PW10) for awarding the appellants capital punishment of death and enhancing amount of compensation as well as of fine is hereby dismissed. Likewise, as the case against the appellants has been found by us to be false and frivolous, therefore, Criminal Revision No. 1080 of 2006 for convicting Sultan appellant under section 302(b), PPC is also dismissed.