' Razaq son of Hameed and Dil Nawaz son of Jan Muhammad accused/ appellants faced trial before learned Additional Sessions Judge. Burewala in case FIR No. 133/1999 dated 30.3.1999 under Sections 302/436/201/34, P.P.C. Registered at Police Station Gaggo. 01, conclusion of trial, vide judgment dated 13.6.2002, the learned Additional Sessions convicted the accused/ appellants under Section 302(b), PPC and sentenced them to imprisonment for life, with further direction to pay Rs. 50,000/- each as compensation to the legal heirs of deceased, in case of default in payment of compensation amount, they were to further suffer six months simple imprisonment.
Both the accused/appellants were further convicted under Section 201, P.P.C. And sentenced to three years rigorous imprisonment with fine of Rs. 10,000/-, in case of default to further undergo two months simple imprisonment. They were also convicted under Section 436, P.P.C. And sentenced to five years rigorous imprisonment each with fine of Rs. 10,0001-, in case of failure to suffer further simple imprisonment for two months. Through the instant appeal, said conviction and sentence has been questioned by the accused/appellants/convicts.
2. Briefly the facts of the case are that Muhammad Ramzan complainant (PW.7) got lodged the above FIR on 30.03.1999 at 4.00 a.m. To the effect that on 29.03.1999 at about 9.00 p.m. His father Ahmad Yar (deceased) after taking meal went to BHAINI, whereas, the complainant along with other house inmates slept at his house situated at Chak No. 425/EB. On hearing noise, he woke up and saw that BHAINI was caught by fire, he ran towards BHAINI and meanwhile Hameed alias Allah Ditta and Bagh A.I son of Mehmood also rushed. On reaching near BHAINI, they saw Zahid armed with hatchet and Muhammad Hanif armed with churn I running towards mettle road. They further saw burnt dead body of complainant, which was dragged out with the help of witnesses. The dead body was carrying wound on lower part of chest, right front and middle of belly. Blood was found on earth at some distance, where according to the FIR Muhammad Zahid and Muhammad Hanif accused had murdered Ahmad Yar and in order to destroy any clue, dead body was put on cot and then set at fire.
' Motive was stated to be that mother of the complainant had died six years before and Allah Yar, father of the complainant, wanted to marry Mst. Zahida Bibi (sister of Zahid and sister-in-law of Muhammad Hanif accused, but both the accused were not agreeing, for which reason that had earlier beseeched Allah Yar and extended him threats of murder.
3. After registration of FIR, Muhammad Hussain inspector PW-14 conducted the investigation and while giving details of investigation he deposed that after recording statement of complainant he proceeded to the place of occurrence, inspected the dead body, prepared injury statement Ex.PC, inquest report Ex.PB, collected blood stained earth Ex.PJ, collected burnt mattress P-4, Strings of Cot
(BAAN) P-5, Ash P-6 which were taken into possession vide memo. Ex.PK. He inspected the place of occurrence, prepared rough site plan Ex.PL, dispatched dead body to mortuary. He recorded statements of witnesses under Section 161, Cr.P.C. After post-mortem, Noor Din Constable produced before him burnt piece of clothes of Qamiz P-1 which was taken into possession vide memo. Ex.PE.
On 10.05.1999 he recorded supplementary statement of complainant and on 31.05.1999 recorded statements of Khan Muhammad, Allah Bakhsh and Muhammad Rafiq. Muhammad Akhtar Patwari produced before him site plan Ex.PD, Ex.PD/1 and Ex.PD/2. During physical remand on 09.06.1999 accused Dilnawaz led to the recovery of blood stained dagger P-2 from residential room of his house, which was taken into possession vide memo. Ex.PG, rough site plan of place of recovery is Ex.PM. On the same day, Razaq led to the recovery of blood stained chhuri P-3 from his residential room lying in a box, which was taken into possession vide memo. Ex.PH and site plan of place of recovery is Ex.PN. During initial investigation both of the nominated accused of the FIR namely Zahid and Muhammad Hanif were found innocent and opinion of the Investigating Officer was endorsed by Deputy Superintendent of Police through Zimni No. 9 dated 07.05.1999. However, afterwards the complainant came out with a different story through supplementary statement and nominated Razaq and Dilnawaz present appellants, as accused of the case and report under Section 173, Cr.P.C. Was submitted against them.
4. During trial, the prosecution examined fourteen witnesses, which include the statement of Muhammad Ramzan complainant PW7 whose statement precisely toes the supplementary statement. Allah Bakhsh PW-8 and Allah Ditta PW-9 made statement to the effect that on the fateful night they had seen Razaq and Dilnawaz coming from BHAINI of Ahmad Yar deceased and on reaching the BHAINI they saw that Ahmad Yar has burnt. Thereafter, they went to Lahore next morning, returned after about 2 1/2 months and got recorded statement to the police. Muhammad Rafiq PW-2 and Khan Muhammad PW-3 deposed about alleged confession of guilt by Razaq and reason explained by Razaq for the murder, according to them, was that deceased had encroached on his land and refused to vacate the same. According to Muhammad Rafiq PW-2 similar confession was made by Dilnawaz accused. Dr. Muhammad Ramzan (PW-1) who conducted post- mortem examination over the dead body of Ahmad Yar and noted the following injuries:-
(1) An incised wound measuring 10 x 7 cm x going deep on the left side of front of chest on lower half;
(ii) An incised wound measuring 4x1 cm x going deep on the upper abdomen present 2 cm above umelicus in the mid line.
' In the opinion of the doctor the death had occurred due to excessive bleeding result of both the injuries, which were sufficient in ordinary course of nature to cause death. The probable time between injury and death was within a few minutes and time elapsed between death and post- mortem was 8 to 24 hours. The rest of the witnesses are all formal in nature and they made statements about their respective roles during investigation. On close of oral evidence, the prosecution tendered report of Chemical Examiner Ex.PO, Ex.PP and that of Numerologist Ex.PP/1 and with that closed the case. The accused when examined under Section 342, Cr.P.0 denied the prosecution case and in answer to question "WHY THE CASE AGAINST YOU AND WHY THE PWS DEPOSED AGAINST YOU both the accused came out with the reply as under:-- "I am innocent. Accused namely Zahid s/o Iraq and Muhammad Hanif S/O Waryam who were nominated in the FIR by the complainant were let off by the complainant party m connivance with the police after getting money from them. All the witnesses are interested and related interse, and also inimical towards me. I along with Dilnawaz implicated as a escape goat. Entire evidence produced by the prosecution is fabricated piece of evidence. All the evidence produced by the prosecution is full of discrepancies and even prosecution witnesses made dishonest improvements in their statements recorded in the Court."
' They however, opted not to make statements under Section 340(2), Cr.P.C. Nor they produced any evidence in defence.
5. On conclusion of trial vide judgment dated 13.06.2002, the above conviction and sentence was recorded against the accused/appellants and through the instant criminal appeal, said, _ conviction and sentence has been challenged by the convict/ appellants.
6. I have heard the arguments of learned counsel for the parties at considerable length and perused the entire available record.
7. As shall be seen from the above narrated facts of the case Muhammad Ramzan complainant (PW.7) while making statement to the police, which -formed basis for registration of case, had made a definite and explicit statement that he along with Hameed and Bagh A.I saw Zahid armed with hatchet and Muhammad Hanif armed with churri running towards mettle road. The complainant had also explained the motive that his mother had died six years before and Allah Yar, father of the complainant, wanted to marry Mst. Zahida Bibi (sister of Zahid and sister-in-law of Muhammad Hanif accused, but both the accused were not agreeing, for which reason that had earlier beseeched Allah Yar and extended him threats of murder. Neither, Hameed nor Bagh A.I were brought by the prosecution, in the witness box, whereas, the complainant during investigation changed his stance and came out with supplementary statement that at the place of occurrence in fact he had seen two unknown persons running towards mettle road, BHA1NI was burning, he tried to save his father who had sustained injuries on the lower chest and left side of the abdomen and had died. He further stated that had suspicion upon Zahid and Hanif therefore, FIR was got lodged against them, whereas, on 10.05.1999 i.e. About 1 1/2 months after the occurrence, prosecution introduced Khan Muhammad (PW-3), Allah Bakhsh (PW-8) and .Muhammad Rafiq (PW-2) who informed the complainant that Razaq and Dilnawaz (present accused/appellants) had murdered Ahmad Yar. The complainant while appearing in the witness box PW-7 admitted that FIR was lodged on his dictation without any omission or addition. Thus, on the face of it the complainant had introduced two different sets of accused, earlier Zahid and Hanif were cited as accused and while naming them in the FIR the complainant had not shown any reservation about their identity and had also attributed a clear motive against them for the murder of Ahmad Yar, deceased. In this view of the matter, when the complainant at the time of recording FIR had no ambiguity about involvement of Zahid and Hanif accused, heavy onus lied on the prosecution to refute the contention of present accused/appellants that earlier nominated accused were let off by taking money from them and subsequently appellants were introduced as accused as escape goat.
8. In order to advance the case of the prosecution, which had in fact been already shattered by two clear conflicting statements of the complainant himself, the prosecution produced Allah Bakhsh PW-8 and Allah Ditta PW-9 who deposed that on the fateful time they had seen Razaq and Dilnawaz coming from BHAINI of Ahmad Yar but this fact was disclosed by 'them to the complainant on 10.05.1999 i.e. After one and a half months of the occurrence. Although in order to explain the said delay Allah Bakhsh PW-8 and Allah Ditta PW-9 deposed that after the occurrence they had left for Lahore for labour and on return disclosed the said fact to the complainant, but Allah Ditta PW-9 during cross-examination admits that "I along with Allah Bakhsh PW remained the whole night in the village and next morning was Eid-uzzaha. We offered Eid-uz-Zaha prayer in Chak No. 425/EB. I along with Allah Bakhsh PW offered Eid-uz-Zaha prayer in one Mosque." This-witness further deposed in cross-examination that "I remained whole day of Eid-uz-Zaha in the village but I did not inform about the occurrence. I participated in the funeral ceremony of Ahmad Yar." As narrated-above, this`was not an ordinary occurrence, rather according to the Prosecution BHAINI of the complainant was set at fire and dead body of Ahmad Yar (father of the complainant) was found there in burn condition. With this background, when the witnesses had allegedly seen the present appellants at the place of occurrence and they also participated in his funeral ceremony, it does not appeal to a man of common prudence that if at all they knew about the real accused and FIR against two others had been lodged, they would still keep mum and did not disclose the real culprits to the complainant. Thus, the delay in reporting the said factor to the complainant is not only inordinate but also creates serious doubt about veracity of their statements. Furthermore, this Court in the case "Mst. PARIS BIBI versus THE STATE and others" (2013 P.Cr.L.J 1886), held that:-- "Wajtakar witness had to prove and explain his presence at the time and place when he saw the assailants after commission of offence but such witness remained successful in establishing his presence at the time Ocular account of prosecution witnesses, as well as extra-judicial confession and Wajtaker indicated that witnesses attempted to improve their case in very desperate manner, which statements also suffered from material contradictions."
9. Further, the prosecution examined Muhammad Rafiq PW-2 Khan Muhammad PW-3 who made statements about alleged extrajudicial confession by accused. On careful scrutiny of their statements, it has been observed by this Court that the alleged occurrence in this case took place on 29.3.1999, according to these witnesses the alleged extra judicial confession by accused was made before them on 9.5.1999 and factor of extra judicial confession was disclosed to the complainant on 10.05.1999. According to these witnesses Razaq explained that Ahmad Yar deceased used to pass by the Haveli of Dil Nawaz which was covered but the wall was demolished.
Dil Nawaz stopped Ahmad Yar from passing through the Haveli, but Ahmad Yar did not agree, therefore, in consultation with Dilnawaz murder of Ahmad Yar was committed, with churries carried by both of the accused. It is thus, obvious that the motive as allegedly disclosed by the accused to these witnesses, is entirely different from the one set by the complainant in the FIR. Furthermore, it remains an admitted position that motive coming through extra-judicial confession was never investigated by the Investigating Officer and apart from that if the evidence of extra judicial confession is believed, then it is quite unnatural that the persons who are empty handed and confess their guilt about commission of a heinous offence of murder, the witnesses before whom such confession is made, would remain as silent spectators, as in the present case there is not a single word in the statements of Muhammad Rafiq PW-2 or Khan Muhammad PW-3 that they made even an attempt to capture the accused at that time to handover them to the police. Thus, the evidence of extra judicial confession is not confidence inspiring. This Court in the case "Muhammad Anwar versus The State" (2011 YLR 2837) disbelieved the evidence of extra judicial confession by holding that: "Extra-judicial confession made by accused in a Panchayat in open proceedings before so many persons and their letting off without any arrest, did not appeal to reason."
10. Considering the peculiar facts and circumstances of the case, as the complainant himself got recorded the FIR, during cross-examination admitted that FIR had been recorded on his statement without any omission of addition and further in the FIR he had nominated two accused with clarity, expressed in clear terms that one of them was Zahid alias Iraq carrying hatchet and second accused was Muhammad Hanif equipped with churri. The complainant also came out with clear narration about motive that since Ahmad Yar deceased wanted to marry Mst. Zahidan (sister of Zahid & sister-in-law of Hanif) therefore, out of said grievance murder was committed. In the presence of said explicit stance of the complainant appearing in the FIR, the evidence of alleged extra judicial confession, which by itself is ,a weak type of evidence, as discussed above, cannot advance the case of the prosecution against the present accused/appellants. This Court in the case "Muhammad Yaqoob and others versus The State" (2007 YLR 534), in clear terms held that: "No provision exists in, Cr.P.C. About supplementary statement--Generally, such statement is recorded to fill the lacunas in the prosecution case."
11. As regards recovery of crime weapons, Muhammad Hussain Inspector/Investigating Officer (PW- 14) deposed that during physical remand on 9.6.1999 accused Dilnawaz led to the recovery of blood stained dagger P-2 from residential room of his house, which was taken into possession vide memo. Ex.PG, rough site plan of place of recovery is Ex.PM, On the same day, Razaq led to the recovery of blood stained chhuri P-3 from his residential room lying in a box, which was taken into possession vide memo. Ex.PH and site plan of place of recovery is Ex.PN. The occurrence took place on 29.03.1999 and the alleged recovery was affected on 09.06.1999 i.e. About two and a half months after the occurrence. Firstly, it is highly improbable that after committing heinous crime of murder the accused were keep the crime weapon safe in their house, for its subsequent recovery and production to the prosecution, so as to be used against them, as evidence and secondly, it also does not appeal to mind that a churri which remains lying in a box along with clothes for more than two months would still carry blood stains on it. Therefore, the recovery evidence Which even otherwise has just corroborative value, is not believable in this case, especially when Muhammad Ramzan PW-7, recovery witness, in his statement before the Court does not state that at the time of recover the crime weapons contained blood stains.
12. For what has been discussed above, this Court is convinced that the ocular account of prosecution witnesses, as well as extrajudicial confession and Wajtakar indicated that witnesses attempted to improve their case in very desperate manner, which statements suffered from material contradictions, as detailed above, whereas this Court in the case "Bahadar versus The State" (2007 YLR 1471), clearly held that: "Supplementary statement of the complainant could not be equated with the F.I.R. And the same was recorded either to fill the lacunas in the prosecution case or to add the number of accused."
' Thus, I am fully convinced that the prosecution has miserably failed to prove the charge against the present accused/appellants beyond any shadow of doubt. Consequently, this criminal appeal is allowed, impugned judgment of conviction and sentence recorded against the accused/appellants is set-aside, and they are acquitted of the charges against them. The record of the learned trial Court be sent back immediately and the case property, if any, shall be disposed of in accordance with law.