SYED SHAHBAZ ALI RIZVI, J.---This judgment will dispose of above captioned Murder Reference as well as Criminal Appeal filed by Shaukat Hayat appellant who was convicted by learned Sessions Judge, Jhelum in a case FIR No,117 dated 22-8-2009 under sections 302/452, P.P.C., P.S Domeli, Distt.
Jhelum vide impugned judgment dated 20-1-2010 and sentenced infra:-
(i) Death under section 302(b), P.P.C, as Ta'azir for committing Qatl-i-amd of Muhammad Ashfaq deceased with compensation to the tune of Rs,100,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased and in default thereof, to further undergo six months SI. The convict was ordered to be hanged by his neck till he is dead.
(ii) Five years' RI under section 452, P.P.C. Or in default 3 months' SI.
2. The facts in brief, as disclosed by Mst. Kausar Perveen complainant (P.W.7) in her complaint (Exh.PA) as well as FIR (Exh.PA/1) are that on the fateful night i.e, 22-8-2009 at about 2:30 nocturnal, her brother Muhammad Ashfaq (deceased) was, sleeping for having care of her house as routine when an unknown person, having average height, slim body, wearing Qameez, Tehmand and wrapping Chaddar on his head, entered into the courtyard of her house by climbing over the wall and opened the door from inside; the complainant, on hearing noise of gate, woke up and inquired as to who was there? In the meanwhile, the unknown person made three fire shots with his pistol, straight at her brother Muhammad Ashfaq who was sleeping on the cot; on hue and cry of the complainant the assailant fled away through the main gate; voice of firing and her hue and cry attracted Mushtaq Ahmad (P.W.9) and Akhlaq Ahmad, her brothers, to the spot and found firearm injuries on the left ribs under the chest and right buttock of Muhammad Ashfaq and blood was oozing; the injured was shifted to RHC Domeli who had succumbed to the injuries in the way.
3. On this complaint (Exh.PA) formal FIR (Exh.PA/1) was registered. The case was investigated and on completion of investigation, the appellant was sent to court for facing trial.
4. Learned trial Court after observing all the pre-trial nodal formalities, indicted the appellant to which he pleaded not guilty and claimed to be tried. The prosecution was asked to lead its evidence, which produced as many as 10 P.Ws. To prove its case.
Dr. Waheed Asghar, Medical Officer, THQ Hospital, Sohawa (P.W.6) conducted post mortem examination on the dead body of Muhammad Ashtaq (deceased) on 22-8-2009 at 10-30 a.m. And observed following injuries on his body:- INJURIES
(i) A punctured wound in between 10th and 11th ribs on left chest 1/2 x 1/2 cm in size 12 cm. From the sternum. Edges were inverted. One half wound was associated with abrasion. There was surrounding discloloration of 3 X 2 cm around the wound. It was consistent with wound of entry.
(ii) Punctured wound with evened edges .75 x . 75 cm on right lower back adjacent to 3rd lumber vertebrae. Bleeding from the wound was mild consistent with wound of exit.
REMARKS The medical officer was of the opinion that cause of death was injury No,1 leading to intra- abdominal bleeding, haemorrhage, shock and death. Injury No,1 was ante-mortem in nature caused by fire-arm and sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was approximately within half an hour and between death and post mortem within 10 and a half hours. The date and hour of death was between 12-00 p.m. (21-8- 2009)-10-30 a.m. (22-8-2009).
5. The prosecution gave up P.Ws. Namely Muhammad Rafiq,- Ikhlaq Ahmad, Amjid Mahmood, Hafeez ur Rehman and Ishtiaq being unnecessary and by tendering into evidence reports of Serologist Exh.PL, Forensic Science Laboratory Exh.PM and Chemical Examiner Exh.PN, closed the prosecution evidence.
6. Then statement of the appellant was recorded under section 342, Cr.P.C. Wherein he negated the allegations and professed his innocence. In reply to the question as to why the case against him and why the P.Ws. Deposed against him, the appellant maintained as under:- "I am innocent. In fact the husband of the complainant lives in Badeen in connection with his job.
The complainant has developed illicit relations with some one who on the fateful night, had entered into the house of Mst. Kausar Parvin complainant and on raising noise by Muhammad Ashfaq deceased, the said person committed murder of Muhammad Ashfaq by firing at him and I have been falsely involved in this case just to conceal the factum of illicit relations of complainant with her paramour from her husband. I have been made -scapegoat in this case. P. Ws. Are close relatives of the complainant. They were not present at the spot at the time of alleged occurrence and after the alleged occurrence this false and baseless story of wajtakkar and extra judicial confession has been cooked up."
Though the appellant opted to lead evidence in his defence yet did not produce any witness nor did he appear as his own witness to make statement on oath in disproof of allegations levelled against him, under section 340(2), Cr.P.C.
7. After conclusion of trial the appellant' was convicted and sentenced as mentioned above by the learned trial Court: hence the instant appeal.
8. Learned counsel for the appellant has argued that the appellant has been falsely implicated in this case; that no motive is alleged against the appellant, so there was no occasion for the appellant to commn the murder of the deceased; that the prosecution has given up material witness of Wajj Takkar; that it was an unseen occurrence and no corroboration with regard to the evidence of Wajj Takkar is available with the prosecution; that there are material contradictions in the statements of the witnesses; that the medical evidence does not corroborate the ocular account; that the eye-witnesses i.e, the complainant as well as other witness arc closely related to the deceased and being interested witnesses, have made a false deposition against the appellant; that the recovery of weapon has been planted upon the appellant; that the prosecution failed to produce any independent, cogent unimpeachable and entrenched evidence against the appellant and the learned trial court has not applied its judicious mind while convicting the appellant, therefore, the impugned judgment is not sustainable in the eye of law and prayed for acquittal of the appellant.
9. Conversely, learned D.P.-G. For the State assisted by learned counsel for the complainant has defended the impugned judgment by arguing that prosecution has proved its case; that the prosecution witnesses remained stuck with their statements, made before the police as well as learned trial Court and they could not be shattered by the defence despite the fact that they were subjected to lengthy cross-examination; that the prosecution has successfully proved its case through reliable and convincing evidence including the ocular account, medical account, recovery and the impugned judgment is well-reasoned and does not call for any interference by this Court and prayed for dismissal of the instant appeal.
10. Having heard the learned counsel for the appellant. Learned law officer assisted by learned counsel for the complainant and gone through the record, we have noticed that it is a night time occurrence, reported by the sole eye-witness, against an unknown person with a considerable inordinate and unexplained delay and the appellant was nominated on the basis of "Wajj Takkar" evidence only.
11. According to the contents of FIR, initially the prosecution stance was that an unknown person with average height, lean body, wearing Qameez and Tehmand with a Chaddar tied around the head, entered into Haveli of the complainant at 2-30 a.m. And made three straight pistol fires upon Muhammad Ashfaque deceased who was sleeping on the cot and on alarm, raised by the complainant, he fled away and the P.Ws. Attracted to the spot. Subsequently, on the same day, the appellant was nominated on the basis of "Wajj Takkar" evidence.
12. As far as the ocular account is concerned, the complainant/ P.W.7, being eye-witness, has never identified the appellant even during the trial, as the person who committed the murder in her view and it is evident from her statement that she named him in this case only on the basis of information provided to her by P.W.8 Muhammad Safdar and Hafeez (given up P.W.). The complainant claims that she is the first cousin of the accused being son of her uncle and real brother of her husband but unbelievably she claiming herself to be an eye-witness, narrates his height, stature, the detail of his dress but does not recognize him, which does not appeal to a prudent mind in the circumstances of the case, especially when it was not alleged that the accused had a muffled face. Even otherwise, it is natural that had the complainant witnessed the occurrence and had the appellant committed the occurrence, the complainant would have surely named him in the FIR. Moreover, if the statement of the complainant is considered with the touchstone of site plan Exh.PC and Exh.PC/1, it reveals that the assailant made three fires with pistol on the deceased from a close range of about 4 feet, but admittedly the deceased sustained only one fire shot injury with an exit wound and how the remaining two shots did not hit the deceased from such a close range coupled with the fact that I.O. Had collected only two crime empties from the spot. Admittedly the doctor has not noticed blackening around the entry wound (injury No,1), all the above facts have created a serious doubt in the prosecution story. It has also been observed by us that Yens after six hours of the occurrence; the assailant remained untraced as I c had not been named in the FIR. Considering also these facts, we have come to a definite conclusion that it was an unseen occurrence. Reference is made to the judgment passed by the Hon'ble Supreme Court of, Pakistan in case titled "Akhtar Ali and others v. The State" reported as 2008 SCMR 6. Titled "Nazeer Ahmad v. Gehne Khan" reported as 2011 SCMR 1473, wherein it was held that such delay adversely reflects on the credibility of the prosecution version and such delay leads to infer that the occurrence was unwitnessed.
13. Another important aspect in this regard is that the prosecution is mysteriously silent and discrepant about the time, consumed in registration of FIR by the police with the delay of about six hours. According to the P.Ws., they reached at RHC Domeli within 35 minutes of the occurrence as stated by P.W.7 that the vehicle was arranged within 10 to 15 minutes and they reached at Domeli within 20 minutes, which means that the complainant along with the deceased reached the town at about -3 or 3-05 a.m. The police station is situated short of RHC Domeli. According to prosecution stance, the deceased succumbed to the injury on the way to hospital. In other words, the deceased died prior. To or at 3 a.m. But the complainant and other near and dears of the deceased remained silent at the RHC and did not even try to inform the police till 5-45 a.m. Even according to the prosecution case, P.W.10, who is the I.O. Of this case, was informed by the Medical officer at 5-20 a.m. Another astonishing fact in this case is that after recording the statement of the complainant at 5-45 a.m.. The FIR was registered at 8-10 a.m., which is again not explained anywhere in the prosecution evidence. The complainant during cross-examination states that the police reached there (R.H.C. Domeli) within 5 to 10 minutes after their arrival. All these circumstances, lead us to infer that the prosecution continuously tried to conceal certain facts, which is reflected from the unnatural and mysterious behaviour of the witnesses and surely the result of the same is the inference that the occurrence did not take place in the manner as narrated by the complainant, the eye-witness.
14. So far as the evidence of Wajj Takkar, on the basis of which the appellant has been nominated in this case, is concerned, admittedly it is a night time occurrence. P.W.8 who is the maternal uncle of the complainant, appeared to prove the same but remained the sole witness to this effect and his testimony was not corroborated by any .Other independent witness. He maintained that he himself and Muhammad Hafeez saw the appellant while running near graveyard at a distance of 3/4 mile away from the place of occurrence at 2-30 a.m, which is surely a considerable distance whereas the complainant claims that the occurrence took place at 2-30 a.m. And how the appellant had travelled such a distance is not understandable. P.W.B. Himself admitted that he reached the place of occurrence at about 2-45 a.m. But he did not bother to inform the complainant regarding this fact till her arrival at the place of occurrence from the hospital 8 a.m. There is yet another important fact of this case that P.W.8 himself admits that he had gone to Sahiwal, one month prior to the occurrence, so he is also a chance witness. The other witness of Wajj Takkar namely Hafeez has been given up by the prosecution being unnecessary. So, an adverse inference can be drawn that had. He been produced before the learned trial Court, he would not have supported the prosecution version. Reference in this regard can easily be placed upon the case titled "Lal Khan v.
The State" reported as 2006 SCMR 1846. All these facts clearly show that the evidence of Wajj Takkar has been manufactured by the prosecution under legal advice in order to procure conviction of the appellant by the learned trial Court. Keeping in view all the above mentioned circumstances of the case, it is evident that the prosecution has failed to prove the evidence of Wajj Takkar against the appellant.
15. So far as the evidence of P.W.9 Mushtaq Ahmad, who is a real brother of the deceased, regarding the extra judicial confession, made by the appellant on 7-9-2009 at the residence of Akhlaq Ahmad in presence of Mushtaq Ahmad and said Akhlaq Ahmad, is concerned, it seems to be a half-hearted attempt of the prosecution to strengthen its case against the appellant. The said witness Akhlaq Ahmad has not been produced by the prosecution, so there is no corroboration to the testimony of P.W.9 Mushtaq Ahmad. Moreover, statement of the said witness is silent with regard to mode, manner and circumstances under which accused had allegedly committed offence and it would definitely be unsafe to rely upon such type of evidence, in circumstances, reference is made to the case titled "Nasir Jamal and 2 others v. The State" reported as 2006 PCr.LJ 557 and case titled "Mst. Mumtaz and others v. The 'State" reported as 1999 MLD 988.
The question of placing reliance on extra judicial confession of the accused person came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of Sajid Mumtaz and others v. Basharat and others reported as 2006 SCMR 231 wherein at page 238 the apex Court observed that :- ".....This court and its predecessor court (Federal Court) have elaborately laid down the law regarding extra judicial confessions staring from "Ahmad v. The Crown PLD 1951 FC 103-107" up to the latest. Extra judicial confession has always been taken with a pinch of salt. In "Ahmad v. The Crown", it was observed that in this country (as a whole) extra judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra judicial confession, the court must inquire into all material points and surrounding circumstances to "satisfy itself fully that confession cannot but be true". As, an extrajudicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction....." ......22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra judicial confessions have almost become a norm when the prosecution cannot otherwise, succeed. Rather it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoction like extrajudicial confessions. Such confessions, by now, have become the signs of incompetent investigation ......."
So following the principle laid down by the Hon'ble Supreme Court. We are of the considred view that in the instant case, the prosecution has failed to produce a confidence inspiring evidence of extra judicial confession.
Even otherwise it is not believable that after a few days of the occurrence, the appellant without being armed with any weapon, would confess his guilt in the presence of real brothers of the deceased who would let him go free, after confessing his guilt regarding the murder of the deceased, their real brother, from their house.
16. As regards the motive part of this case, there is nothing mentioned in the FIR regarding the motive, however, when the complainant/P.W.7 appeared before the court, she maintained that the motive of the occurrence was that the appellant was having the suspicion of illicit relations between his sister-in-law and the deceased but she remained fail to prove this allegation against the appellant because of the fact that she did not even disclose the name of the sister-in-law of the appellant and furthermore, none of the other prosecution witnesses. Despite being closely, related to the complainant, has supported this averment of the complainant, neither she disclosed her exact source of information nor she claimed to be the direct witness to the motive part of the occurrence, which renders this piece of evidence not worthy of credence hence, cannot be believed.
17. As far as the recovery of crime weapon and its matching with the empties, taken from the place of occurrence is concerned; it has lost its significance. When the other piece of evidence produced by the prosecution are not believable, however, it is relevant to take notice of this fact that the defence has suggested that the appellant was taken into custody on 27-8-2009. Though the prosecution has denied this suggestion but in the circumstances of the case, dispatch of crime empties on 1-9-2009, dispatch of pistol on 14-9-2009 after its recovery on 9-9-2009 seems doubtful. As, it has become very unfortunate trend in our society that the police keep the accused persons detained without effecting their formal arrest to create incriminating evidence against them, the peculiar circumstances of the case transpire that the same practice has been adopted by the police in this case. No independent person has been associated in the recovery proceedings in spite of the fact that one Muhammad Shafi who was neighbour, in whose presence, allegedly the appellant had got recovered the weapon of offence, has not been produced before the learned trial Court in support of recovery proceedings. After attending to all the above facts, we have come to a definite conclusion that the prosecution has failed to prove the recovery of weapon of offence from the appellant through confidence inspiring evidence as required in a murder case.
18. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are. Not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient. Hence, the above narrated peculiar features of this case convince us to hold that the prosecution has not been able to prove its case beyond reasonable doubt and law is quite settled that if the prosecution fails to discharge its liability to prove its case against an accused person, then the accused person is to be acquitted. It is settled principle of criminal jurisprudence that the prosecution has to prove its case beyond any shadow of reasonable doubt and not many circumstances are required to extend benefit of doubt in favour of an accused person rather a single circumstance creating doubt is enough to give the benefit of the same to the accused.
Reference is made to the case. Titled "Azhar lqbal v. The State" reported as 2013 SCMR 383 and "Mst.
Shamshad v. The State" reported as 1998 SCMR 854.
For what has been discussed above, the instant Criminal Appeal No.70 of 2010 filed by the appellant is hereby allowed, conviction and sentences recorded by the learned trial Court are set aside and the appellant is acquitted of the charge under sections 302(b) and 452. P.P.C. By extending him benefit of doubt. He is in jail; shall be released forthwith, if not required in any other case. The Murder Reference No,18 of 2010 is answered in the negative and the death sentence awarded to him is not confirmed.