' SYED SHAHBAZ ALI RIZVI, J.-- -The appellants namely Shahid Rafiq, Muhammad Akhtar and Umar Hayat were tried in a case F.I.R. No. 267 dated 26-10-2009 for offence under sections 302/34, P.P.C.
Registered at Police Station Chutiana, Distt. Toba Tek Singh and convicted by the learned Addl.
Sessions Judge, T.T. Singh under section 302(b) P.P.C., vide impugned judgment dated 29-9-2010 and sentenced as under:-- Appellant Shahid Rafique.
Death under section 302(b), P.P.C. As Tazir for the murder of Nazeer Ahmad (deceased) with compensation to the tune of Rs.1,00,000 to be paid to the legal heirs of the deceased and in default thereof, to further undergo six months' S.I.
Appellant Muhammad Akhtar.
Death under section 302(b), P.P.C. As Tazir for the murder of Nazeer Ahmad (deceased) with compensation to the tune of Rs.1,00,000 to be paid to the legal heirs of the deceased and in default thereof, to further undergo six months S.I.
' Both the appellants were ordered to be hanged by neck till death.
Appellant Umar Hayat.
' Life imprisonment under section 302(b), P.P.C. As Tazir for the murder of Nazeer Ahmad (deceased) with compensation to the tune of Rs.1,00,000 to be paid to the legal heirs of the deceased and in default thereof, to further undergo six months S.I.
' He was also extended with the benefit of section 382-B, Cr.P.C.
2. Through this single judgment, we intend to decide Murder Reference No.535 of 2010 forwarded by the learned trial Court under Section 374, Cr.P.C. For confirmation or otherwise of the sentence of both the convicts Shahid Rafique and Muhammad Akhtar along with Criminal Appeal No.2399 of 2010 filed by both the said appellants and Criminal Appeal No.2400 of 2010 filed by the appellant Umar Hayat.
3. The facts in brief, as unfolded in the FIR Ex.PN by the complainant Muhammad Ashraf (P.W.6) are that his brother Nazir deceased went to the Dhari of Sardar Jutt to guard the cattle at night and slept there. On the next morning at 8 a.m. He along with Shabbir and Umar Hayat went to the said Dhari to fetch milk and noticed that his brother Nazir Ahmad was lying dead on the ground near the cot and firearm wounds were present on his right shoulder, right side of chest and right armpit.
It was further alleged in the FIR that due to enmity of murder with Rab Nawaz and Muzaffar sons of Bashir Ahmad and Bashir Ahmad son of Allah Yar whose son Yasin had been murdered by them (complainant party) and they had been convicted and later on released on bail; besides it was alleged that complainant's brother Bashir Ahmad had kidnapped Sumera Bibi, girl of Shahid Latif and Faqir Muhammad of the same village and any of both the said groups had murdered his brother. During investigation, all the above mentioned accused persons were found innocent by the police and after they were exonerated, the complainant, through an addendum statement (application Ex.PE), nominated all the three appellants on the information, provided to him by Riaz (P.W.7) and Nawaz (since given up) that on the night of occurrence i.e. 25/26-10-2009 at about 9 p.m. The appellants Shahid Rafiq, Umar Hayat and Muhammad Akhtar were present while armed with firearms on the Pulli near the Dhari of Sardar Jutt and thereafter all the three appellants made extra judicial confession before the complainant, Riaz and Nawaz and admitted to have murdered the deceased. The motive behind the occurrence was that the appellants had grudge against the deceased for his illicit relations with Nazia Perveen, niece of appellants Umar Hayat and Shahid Rafiq and with Rukhsana, the wife of appellant Akhtar and they had also grudge against the deceased for demanding land from them.
4. The investigation of the instant case was conducted by Muhammad Arshad SI (P.W.12) who was entrusted with the investigation on 11-11-2009 who after nomination of all the three appellants by the complainant on 25-11-2009, arrested the appellants on 3-12-2009, recovered 12 bore short gun P.4 on 12-12-2009 from appellant Shahid Rafique, taken into possession vide memo Ex.PF and Carbine 12 bore P.5 from appellant Muhammad Akhtar, taken into possession vide memo Ex.PG; recorded statements of the P.Ws. Under section 161, Cr.P.C; on 13-12-2009 got the appellants sent to judicial lock up and on 22-12-2009 prepared the challan.
' The appellants were sent to the learned trial court for facing trial. Learned trial court, after adopting all the codal formalities, indicted the appellants but they pleaded not guilty and claimed to be tried.
5. The prosecution, in order to prove its case, produced as many as twelve witnesses. Dr. Muhammad Javed Iqbal (P.W.1) conducted the postmortem examination of the deceased on 26- 10-2009 and observed the following injuries:- INJURIES:
(i) A multiple firearm entrance wounds those were each measuring 6 cm in diameter in an area of 15 cm x 13 cm front and upper part of right chest and also on front of right shoulder.
(ii) A firearm exit wound 1.5 cm x .6 cm on right armpit (Axilla).
(iii) A firearm exit wound 1.8 x .7 cm inner and above the injury No.2 corresponding holes present on qameez.
OPINION ' The doctor was of the opinion that the cause of death in this case was due to shock and haemorrhage, both external and internal bleedings and damaged to vital organs i.e. Right lung, which were sufficient to cause death collectively in ordinary course of nature. All the injuries were ante mortem and caused by firearm. Probable time that elapsed between injuries and death was about 1 to 3 hours and between death and post mortem was about 10 to 16 hours. Ex. PA was the correct carbon copy of post mortem examination report and diagram reflecting locale of injuries was Ex.PA/1.
6. The prosecution gave up P.Ws. Muhammad Nawaz and Abdul Rehman being unnecessary and after tendering into evidence the reports of Chemical Examiner Ex.PQ, Serologist Ex.P/1 and that of Forensic Science Laboratory Ex.PR, closed its case.
7. The statements of the appellants were recorded under section 342, Cr.P.C. Wherein they negated the allegations levelled against them and professed their innocence. In reply to the question "why the case against you and why the P.Ws. Deposed against you?", appellant Umar Hayat replied as under:-- "I am complainant of case FIR No.179/08 dated 3-9-08 under section 337 A.4/324, P.P.C. Etc registered at Police Station Chutiana. Muhammad Ramzan son of Sultan caste Gondal was my accused in this case. Muhammad Ramzan accused of that case is the real brother of Muhammad Aslam, the husband of Mst. Sakina Bibi, real sister of complainant of this case.
Muhammad Aslam and his wife Sakina Bibi were prosecuting that case on behalf of accused ultimately he was convicted. Mst. Sakina Bibi and Muhammad Aslam instigated the complainant of this case to nominate us falsely because of their personal grudge and to force us to enter into compromise. When the accused of FIR were declared innocent by the police, these two above mentioned persons participated the investigation against us therefore we were falsely implicated on their instance and P. Ws. Deposed against us on the asking of Sakina Bibi and Muhammad Aslam. The P. Ws. Are interested witnesses and inter se related".
' Whereas both the remaining appellants Shahid Rafiq and Umar Hayat endorsed the reply of Umar Hayat.
8. The appellant did not appear as their own witness to make statement on oath under section 340(2), Cr.P.C. To discard the allegations levelled against them, however, they produced documentary evidence in their defence.
9. After conclusion of trial the appellants were convicted and sentenced as mentioned above.
10. Learned counsel for the appellants contends that initially, the FIR was lodged by the complainant as a blind murder however he had expressed a suspicion against two groups, one comprising of Rab Nawaz, Muzaffar and Bashir Ahmad and another comprising of Shahid and Faqir Muhammad but after thorough investigation, when both the groups were declared innocent by the police, the complainant made a supplementary statement with a delay of about one month i.e. On 25-11-2009 on the basis of some information provided to him by Nawaz and Riaz; that all the three appellants have falsely been implicated in this case and there is no explanation on the record that why Nawaz and Riaz had not informed the complainant regarding the involvement of the appellant for the murder of his brother for a long time; that even in the supplementary statement the evidence shown against the appellants is that they were seen by Nawaz and Riaz at about 9/10 p.m. Between the night of 25/26-10-2009, present near the Pulli, armed with unspecified firearms, therefore, this is a case against the appellants without any legal evidence and is based upon circumstantial evidence; the alleged extra judicial confession before the complainant, Nawaz and Riaz is a fabrication on the part of the prosecution; except extra judicial confession, there is no other evidence against the appellants in this case and evidence of recovery (12 bore rifle from Shahid Rafiq P.4 vide memo Exh.PF & 12 bore carbine P.5 from Muhammad Akhtar vide memo Exh.PG effected on 12-12-2009) that is only a corroborative piece of evidence, is also a fabrication on the part of police and even otherwise is inconsequential to the prosecution as the empties recovered from the place of occurrence were sent to the Forensic Science Laboratory on 11-12- 2009, after the arrest of the appellants on 3-12-2009; evidence of extra judicial confession is a weak type of evidence, especially in the absence of any other corroborative piece of evidence, is of least importance and trial court has wrongly convicted and sentenced the appellants only on the basis of extra judicial confession; both the witnesses i.e. Complainant P.W.6 and Riaz P.W.7 are real brothers of the deceased and they being interested witnesses, have falsely deposed against the appellants; nothing was recovered from the appellant Umar Hayat and finally prayed for acquittal of the appellants.
11. On the other hand, the learned Law Officer assisted by the learned counsel for the complainant contends that the appellants have been specifically nominated by the complainant in the supplementary statement; both P.W.6 and P.W.7 have made their deposition in line with each other; there is strong evidence available against the appellants in the shape of extra judicial confession made by them before the complainant (P.W.6) and other witness Muhammad Riaz (P.W.7) and given up P.W. Nawaz, which is sufficient to maintain their conviction; recovery of crime weapons stands effected from the appellants Shahid Rafique and Muhammad Akhtar, which connect them with the commission of alleged offence.
12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General as well as the learned counsel for the complainant and perused the record with their assistance.
13. We have observed that initially the FIR was lodged by the complainant regarding a blind murder expressing his A suspicion against two different groups; one comprising of Rab Nawaz, Muzaffar and IA Bashir Ahmad while the other comprising of Shahid and Faqir Muhammad because of certain inimical background but after thorough investigation when all the nominated suspects were declared innocent by the police, the complainant moved an application Ex.PE, which was recorded as his supplementary statement by the I.O. With a delay of about one month i.e. On 25-11- 2009, on the basis of information provided to him by Muhammad Riaz (P.W.7), real brother and Muhammad Nawaz (given up PW) maternal uncle of the complainant as well as the deceased regarding witnessing the appellants near the place of occurrence before the occurrence at bout 9/10 p.m. On the night of incident. To prove its case against the appellants, the prosecution has extended three different pieces of evidence, which we intend to discuss separately.
First of all, we advert to the evidence of witnessing the appellants near the place of occurrence while armed with firearms by said Muhammad Riaz (P.W.7) B and Muhammad Nawaz, the given up PW, who are closely related to the complainant and the deceased being real brother and maternal uncle respectively. The complainant Muhammad Ashraf (P.W.6) during his cross-examination has admitted that both of them were present at the scene of occurrence when the police arrived there along with him for the first time. Similarly, P.W.10 Khalid Mehmood, SI, the Investigating Officer of this case, also maintained that Muhammad Riaz P.W.7 got recorded his statement under section 161, Cr.P.0 before him regarding identification of dead body on 26-10-2009 i.e. The day of occurrence.
He also maintained that Muhammad Riaz was present when inquest report was prepared. Similarly, post mortem report Ex.PA also reflects his name in the relevant column but surprisingly none of them disclosed such an important fact to the police specially when the deceased was having strained relations as is stated by P.W.6 during his cross-examination, which is reproduced as under:-- "There was a dispute between us and accused present in court but no litigation was pending in any court. We both parties never approached any court regarding this dispute...I had not mentioned in Ex.PE that the accused persons ever complained about the character of deceased to us or not. The accused persons never gave application against Nazir deceased. An oral quarrel and exchange of hot words have been happened between Nazir deceased and 'accused persons but that quarrel never became physical. I had not told this grudge and quarrels between Nazir deceased and accused present in court to the police during investigation."
The above narration clearly reflects at least the strained relations between the deceased and the appellants but even then non disclosure of the fact by P.W.6, P.W.7 and Muhammad Nawaz, the given up PW, on the very first day to the police is not only mysterious but unnatural and unbelievable as well and this silence on the part of the P.Ws. For a long period of about one month also creates a doubt about their belated statement.
' Moreover, to this extent, statement of P.W.6 is merely a hearsay while P.W.7 has no independent corroboration in this regard. Even otherwise. The story regarding witnessing the appellants in armed condition near the place of occurrence prior to the occurrence, as discussed above, is not plausible besides being of no consequence.
14. So far as the extra judicial confession allegedly made by the appellants is concerned; P.W.6 Muhammad Ashraf complainant and P.W.7 Muhammad Riaz have appeared to furnish the evidence in this regard. Extra judicial confession is a weak type of evidence being not a direct evidence of the crime. It has been repeatedly held by the Hon'ble Apex Court that the evidence of extra judicial confession is always to be taken with utmost care and caution. It has become a common phenomenon rather a judicially recognized fact, by now, that the evidence of extra judicial confession has become a sign of incompetent investigation because when an investigating officer having no direct evidence of the crime fails to properly investigate the case, he prefers to resort to padding and concoction like extra judicial confession which is definitely not difficult to procure with the help of complainant party, already interested to strengthen its case against the accused. Due to this prevailing phenomenon, the courts in our country are always expected to satisfy themselves regarding the credibility and genuineness of extra judicial confession by observing that i) it was made voluntarily and was not obtained by torture, coercion and inducement; ii) it was actually made and; iii) it was truly made. In this regard, light has been sought by us from the case titled "Muhammad Kamran and another v. The State" (2003 SCM R 1070), "Abdul Latif v. Crown (PLD 1952 FC 113) and "Sarfraz Khan v. The State" (1996 SCM R 188). The extra judicial confession made by the appellants as alleged by P.W.6 and P.W.7, does not fulfil the supra mentioned pre requisites, necessary to believe the same, as it has not been voluntarily made which is very much evident from the statement of P.W.6, reproduced as under:-- "I asked Umar Hayat that we have developed doubt against him along with Shahid Rafique and Akhtar for murdering my brother Nazir and also offered him if they committed this murder they should confess this because we all belonging to one family can easily enter into compromise.
Umar Hayat, Shahid Rafique and Akhtar accused present in court denied their guilt. I told them that I am going to nominate you all on my suspicion then police will investigate and find real offender. Umar Hayat, Shahid Rafiq and Akhtar turn by turn confessed the murder of my brother Nazir. (Underlining is ours).
' The supra narration clearly reflects that the alleged extra judicial confession was obtained by the P.Ws. Through inducement as well as threat, being so the same cannot be termed as voluntarily made confession. If an extra judicial confession is not voluntarily made, it is not tenable in the eye of law, as in view of the case-law respectfully mentioned above, the voluntariness is pre-requisite of every confession which can be treated as an admissible piece of evidence in a court of law. The extra judicial confession is weaker type of evidence and when the same is made under threat or inducement, cannot be accepted and relied upon as a ground for conviction. Hence, the evidence of extra judicial confession produced by the prosecution is to be kept out of consideration. In the instant case the prosecution has also produced evidence of recovery of crime weapon, allegedly recovered at the instance of Shahid Rafiq and Muhammad Akhtar appellants, as according to the prosecution case, 12 bore short gun P.4 was recovered from Shahid Rafiq, taken into possession vide memo Ex.PF while Carbine P.5 was recovered from Muhammad Akhtar, taken into possession vide memo Ex.PG but as the empties taken into possession from the place of occurrence on 26-10- 2009 were sent to the office of Forensic Science Laboratory on 11-12-2009 i.e. After the arrest of the appellants, effected on 3-12-2009, this delayed dispatch of the alleged crime empties after the arrest of the appellants, has rendered the positive report of Forensic Science Laboratory Ex.PR incredible and inconsequential to the prosecution case.
15. Now coming to the evidence of motive, we have observed that the prosecution could not produce any cogent and independent evidence regarding the dispute of land between Nazir deceased and the appellants and similarly no evidence regarding the illicit relations of the deceased Nazir with Nazia Bibi, niece of the appellants' Umar Hayat and Shahid Rafiq and Mst.
Rukhsana wife of appellant Muhammad Akhtar has been furnished by the prosecution. It seems that the prosecution has half-heartedly attempted to create incriminating evidence by setting a specific motive against the appellant, which could not be substantiated at all.
16. For what has been discussed above, we have come to a definite conclusion that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of reasonable doubt as the alleged extra judicial confession is not voluntary, the evidence of recovery of 12 bore short gun P.4 from Shahid Rafiq and Carbine P.5 from Muhammad Akhtar is inconsequential and the motive is not established through cogent and independent evidence.
17. The law by now is settled, it is the prosecution which is to prove its case beyond any shadow of reasonable doubt against an accused person and it is also settled that multiple doubts in the prosecution case are not required to record judgment of acquittal but a single reasonable doubt is sufficient to extend benefit of the same to the accused as a matter of right. In this regard, reliance is placed on the esteemed judgment passed in case titled "Mst. Shamshad v. The State" reported as 1998 SCM R 854, case titled "Waciar Ahmed V. Shaukat Ali and others" reported as 2006 SCM R 1139, case titled "Akhtar Ali and others v. The State" reported as 2008 SCM R 6 and case titled "Sher Bahadur and another v. The State" reported as 1972 SCM R 651.
18. In view of the above discussion, the instant Criminal Appeals Nos.2399 of 2010 and 2400 of 2010 filed by the appellants are hereby allowed, conviction and sentences recorded by the learned trial court are set aside and the appellants are acquitted of the charge under section 302(b), P.P.C. By extending them benefit of doubt. The appellants Shahid Rafiq and Muhammad Akhtar are in jail; shall be released forthwith, if not required in any other case whereas the appellant Umar Hayat is on bail; his surety stood discharged from the liability.
' The Murder Reference No.535 of 2010 is answered in the NEGATIVE and the death sentence awarded to them is not confirmed.