1. ASLAM JAVED MINHAS, J.---This judgment shall dispose of Criminal Appeal No.418 of 2009 titled Qasim v. The State and others and Criminal Appeal No.303 of 2009 titled Manshad Ali v. Mst.
2. Shahnaz Bibi, and others as both are outcome of the same judgment.
3. 2.The appellant, namely, Qasim along with co-accused Khan Muhammad (since acquitted on the basis of compromise) and Mst. Shahnaz Bibi (since acquitted) was tried by the learned Additional Sessions Judge, Multan, in a case FIR No.1825/06 dated 25.12.2006, under Section 302/34, P.P.C. registered at Police Station Gulgasht, Multan, and vide judgment dated 23.04.2009, he was convicted and sentenced under Section 302(b), P.P.C. to imprisonment for life. He was also extended the benefit of Section 382-B, Cr . P.0 .
4. 2.The relevant facts for the disposal of this appeal as per complaint Exh.PD lodged by Haji Manshad Ali, complainant are that his brother Haji Altaf Hussain (deceased) received a telephone call from mobile No.0300-9631136 on 1.9.2006 at about 9 p.m. on which he took Rs.10,000/- and came out of his house on Honda 125 cc bearing registration No.8559 MLA and told his wife Mst.Farzana that he was going for an urgent piece of work and he would take his dinner after coming back. At about 9.30 p.m., Iftikhar elder brother of the complainant made a call to the deceased that they had to celebrate the birthday of his son Ihtisham ul Haq and he was asked to come to the house so that the cake would be cut. On which, the deceased told to cut the cake and his share be kept. At about 10.30 p.m. a telephone call was received from telephone No.4513673 and some unknown person told that he was calling from Police Station Gulgasht, Multan and told wife of Altaf Hussain that an accident of Haji Altaf took place. On which, the complainant along with his brother Haji Iftikhar and other friends and relatives reached and found that dead body of Haji Altaf Hussain at the gate of Model School Gulgasht and the motorcycle was lying near the dead body and a bed sheet was lying near the head of the deceased, china mobile as well as cash amount were missing. By considering the same as accident, no inquiry was got conducted and the dead body was buried.
5. On the next day, one Wasim and Asghar Ali were present in the house of deceased to condole his death and on a query said Muhammad Wasim and Muhammad Asghar told that at the time of occurrence they were sitting near Dera Adda in the office of rent-a-car where they saw Haji Altaf Hussain, deceased while riding motorcycle with Khan Muhammad, accused who were close friends, while going towards Nawan Shehar. The complainant summoned Khan Muhammad, accused to their house and asked him that he had gone along with their brother Altaf Hussain.
6. Khan Muhammad told that he would give the murderer within 24 hours but thereafter he did not identify any murderer and had been giving divergent versions. On which an application for disinterment of grave was moved which was allowed and the post mortem on the dead body was conducted and from the report of Chemical Examiner it was found that Haji Altaf was murdered. On the basis of above written statement of the complainant, the formal F.I.R. Ex.PH was registered.
7. 3.After registration of the case, the investigation was conducted and thereafter the challan was submitted in the trial court. The learned trial court framed the charge against accused, which was denied by the accused and they claimed trial.
8. 4.To prove the guilt of the accused, the prosecution examined as many as sixteen witnesses during the trial. PW-1 Dr. Mushtaq Ahmed conducted medical examination of accused Khan Muhammad and found that there was no mark of violence or injury on any part of his body. Irfan Hayat Draftsman appeared as PW-2, who prepared scaled site plan of the place of occurrence Ex.PC and Ex.PC/1. PW-3 Waseem Ashraf and PW-4 Muhammad Asghar deposed that on 01.09.2006 at about 08:30 p.m. they saw that Haji Altaf Hussain deceased was going on motorcycle towards Nawan Shehar and on the following day it came into their knowledge that Haji Altaf Hussain has died and they told the complainant that they had seen Khan Muhammad with Haji Altaf Hussain. The complainant Manshad Ali PW-5 supported the prosecution version as narrated by him in the complaint. PW-6 Azmat Khan Inspector/SHO conducted partial investigation of this case. PW-7 Muhammad Farman S.I./LO. deposed that accused Qasim while in police custody led to the recovery of National Identity Card of Altaf deceased which he took into possession vide recovery memo Ex.PG, recorded the statement of PWs and then on his transfer, he handed over the file to Incharge Investigation Cell. PW-8 Akbar Ali and PW-9 Muhammad Afzal deposed that, in their presence, accused Khan Muhammad confessed that he will tell the names of real culprits within 24-hours but then did not met them. PW-10 Haji Iftilchar Hussain and PW-11 Muhammad Irfan were the eye-witnesses of recoveries and extra judicial confession of accused. PW-12 Muhammad Akbar ASI, on receiving complaint Ex.PD made by Manshad Ali, chalked out forrhal FIR Ex.PH. PW-13 Dr. Zafar Ali deposed that on 26.09.2006 at about 10:00 a.m. he, on the orders of learned Area Magistrate, performed postmortem/exhumation of Haji Altaf Hussain and the dead body was identified by Manshad Ali and Muhammad Afzal and opined that there was no mark of violence or injury on any part of the dead body and final opinion would be given after receipt of the report from Chemical Examiner and sealed samples were sent to the office of Chemical Examiner Punjab Lahore. As per final report dated 23.12.2006, no mark of violence or injury observed on dead body during exhumation. He further deposed that specimens were sent to Chemical Examiner for detection of poison/drug. The result of the Chemical Examiner Report No.1572/PV dated 10.11.2006 is as follows:-- 'Tranquilizer belonging to Benzodiazepin group is detected in the above articles. However, quantitative estimation is not possible."
9. So tranquilizer belonging to benzodiazepine group may lead to death.
10. Mumtaz Hussain S.I. appeared as PW-14, who also conducted investigation of this case and declared the accused Qasim Ali guilty in this case. PW-15 Umar Hayat C/105 deposed that on 26.09.2006 Medical Officer handed over to him a tin duly sealed which he handed over to MHC on 30.09.2006 for its onward transmission to the office of Chemical Examiner, Lahore. PW-16 Muhammad Chaman HC/2204 deposed that on 30.09.2006 he handed over the articles to Umar Hayat 105/C for its onward transmission to the office of Chemical Examiner, Punjab Lahore.
5. After closure of the prosecution evidence, the statement of the accused/ appellant was recorded under section 342, Cr.P.C. He denied the allegation and claimed his innocence and false involvement. In reply to a question "why this case has been registered against you and why the PWs have deposed against you", accused Qasim Ali replied as under:-- "I am innocent. I was involved by the police as Khan Muhammad my co-accused told the police that there is a Service Station where he and deceased once had visited for service of the car and the police in order to show its karwai had involved me and my wife in this case falsely. PWs are related inter se."
11. 6.Accused Qasim Ali did not opt to appear as own witness under section 340(2), Cr.P.C. however, in defence evidence he tendered certified copies Ex.DB to Ex.DD/3 and closed his evidence.
12. 7.The trial culminated into conviction and sentence of the appellant as mentioned in para-2 above.
13. He has filed Criminal Appeal No.418 of 2009 against his conviction and sentence. While the complainant has filed Criminal Appeal No.303 of 2009 against the acquitted co-accused Mst.
14. Shahnaz Bibi.
15. 8.Learned counsel for the appellant argued that it is a case of no evidence; that there was no occasion for the accused to give the alleged extra judicial confession before the PWs; in the extra judicial confession no role was ascribed by the PWs; the joint extra judicial confession has no value in the eye of law and the appellant is innocent, therefore, he is entitled for acquittal.
16. 9.On the other hand the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed this appeal and supported the impugned judgment. They further contended that the medical evidence fully corroborates the ocular account, therefore, the appellant is not entitled for acquittal. Learned counsel for the complainant also pressed his criminal appeal against acquittal of Mst. Shahnaz Bibi.
17. 10.1 have heard the learned counsel for the parties and thrashed out the record with their able assistance.
11. Admittedly, the occurrence took place on 01.09.2006 but the same was reported to the police on 26.12.2006 without any plausible unexplained delay of about three months. The prosecution case solely hinges upon the last seen evidence A made by Wasim Ashraf, PW3 the maternal cousin of the deceased and Muhammad Asghar, PW4 the paternal cousin of the deceased, therefore, both are closely related inter se. Both these PWs stated that at the time of occurrence they were sitting near Dera Adda in the office of Rent-a-car where they saw the deceased while driving motorcycle in the company of Khan Muhammad, co-accused going towards Nawan Shehar. There is another aspect of the matter that when the complainant came to know about the occurrence on the very next day of the occurrence then why he waited so long for exhumation of the dead body of the deceased. PW4 Muhammad Asghar admitted in his cross-examination that he had told the police with regard to going of Khan Muhammad with the deceased after 3/4 months of the death of Altaf deceased. During the investigation it came on record that the deceased was not a man of good character and he was habitual in committing zina with bad repute girls. PW.5 Manshad Ali, complainant admitted in his cross-examination that he came to know through Khan Muhammad accused that his brother used to visit house of Qasim and Mst. Shahnaz for zina with certain girls.
18. He also stated that the deceased used to commit zina after making payment. He further stated that in the post mortem of the deceased after exhumation, the doctor did not find any injury.
19. According to PW.7 Muhammad Farooq, SI on 5.2.2007 he summoned accused Khan Muhammad, Qasim and Mst. Shehnaz in the police station and interrogated them and he could not find any proof against any of the accused for the murder of Altaf, deceased, therefore, he let them to go then. He also stated that there is no proof available against them till then and application of the complainant filed under Section 22-A, Cr.P.C. before Justice of Peace and the learned ASJ called the comments from the SHO Police Station Gulgasht. In the comments he admitted that assertion made by Muhammad Ashraf, is correct. He also recorded the statements of Muhammad Irfan and Muhammad Pervez on 22.2.2007 and Muhammad Irfan was the witness of extra judicial confession.
20. He further stated that after recording their above said statements the comments were filed in the court and during the pre-arrest bail they stated that the accused persons were not wanted by them in this case and Iqrar Nama, P7/A was written between Qasim and Mst. Shehnaz co-accused on the said day by the complainant party. On the other side on 28.3.2007 nobody appeared on behalf of the complainant to take oath in the court proceedings. PW7 also stated that there is no mention of the Identity Card of the deceased in the contents of the FIR. He further stated that after this incident, the complainant party took away the dead body of the deceased to their house. He further stated that it came to his investigation that Altaf, deceased was a man of bad character and habitual of committing zina with women of bad repute. PW-11 Muhammad Irfan was the witness of extra judicial confession. He in his examination in chief stated that he along with Pervez, Noor Ahmad were sitting at Dera Adda near Star Light Cinema and Qasim and his wife Mst.
21. Shehnaz, accused came to there. Firstly, Qasim accused told him that previously they were residing in New Multan and for the last six years Altai deceased was used to come to their house for the purposes of prostitution. Later on Altaf deceased engaged with a call girl and tried to marry her. We both husband and wife told Altaf 'not to marry that girl because the deceased always pay them a heavy amount. On which they made a programme that since the deceased gave them heavy amount for prostitution and if he would marry that girl their income would be stopped. Qasim accused further confessed before PW.11 that on 1.9.2006 the deceased and Khan Muhammad, accused came to their house and they administered some intoxicant into Pepsi bottle and the same was given to the deceased who after taking the Pepsi became unconscious and later when they checked the deceased he had already died. Then they wrapped the dead body of deceased in a bed sheet and put the dead body in a car and threw the dead body in front of Model High School Bosan Road, Multan and Khan Muhammad accompanied on bike of the deceased. Later on bike was placed near the dead body and they took Rs.10,000/- from the pocket of the deceased and one mobile and left the place. In the whole statement of PW11 there is nothing as to why the appellant and Mst. Shehnaz Begum came to this witness and made this joint extra judicial confession. There is another aspect of the matter that Pervez PW the witness of extra judicial confession was given up by the prosecution which creates some questions. The evidentiary value of the extra judicial confession came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of Tahir Javed v. The State (2009 SCM R 166). The relevant portion of which reads as under:-- "10. ...It may be noted here that since extra-judicial confession is easy to procure as it can be cultivated at any time therefore, normally it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. The extra- judicial confession therefore must be considered with over all context of the prosecution case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951 FC 107 it has been time and again laid down by this Court that extra judicial confession can be used against the accused only when it comes from unimpeachable sources and trustworthy evidence is available to corroborate it. " There is another aspect of the case that the deceased and Khan Muhammad, accused were admittedly close friends and neighbourer to each other but not a single word has been uttered by the prosecution that there was any enmity or grudge established between the two friends, therefore, how and for what reason Khan Muhammad, accused murdered his friend when no motive is assigned to him. PW13 Dr. Zafar Ali who conducted the post mortem examination to the dead body of Altaf, deceased admitted in his cross-examination that possibility cannot be ruled out that if the report of Chemical Examiner is excluded the deceased had died due to natural death. He further stated that tranquilizer is used for some time by the people for sexual purposes and this fact strengthen the story of the SHO that no injury was present at the time of murder of the deceased which means he used the tranquilizer for some purposes and that he was fond of zina for which he might have used tranquilizer and due to over-doze he might have died. Waseem Ashraf, PW3 and Muhammad Asghar, PW4 are closely related inter se as well as to the complainant and deceased and they saw the deceased and accused, Khan Muhammad and this is not the case of the prosecution that they have any strained relations which means that the deceased and accused, Khan Muhammad were happily driving on the same motorcycle as they were old friends of each other and there is no reason why accused, Khan Muhammad murdered his close friend without any reason or justification, therefore, last seen of the deceased in the company of the accused, Khan Muhammad is of no consequence to the prosecution. The other evidence is of extra judicial confession made by the appellant and co-accused, Mst. Shehnaz which they made before PW11 Irfan and the other PW Pervez witness of extra judicial confession has been given up by the prosecution. All the above mentioned circumstances do make the case of the prosecution doubtful. It is well-settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind, about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right.
12. In view of what has been discussed above, Criminal Appeal No.418 of 2009 is allowed, impugned judgment is set aside and the appellant namely, Qasim Ali is acquitted of the charge.
22. The appellant is on bail, through suspension of his sentence, hence his bail bonds are discharged.
23. Since E." the case against Qasim Ali has not been proved beyond any shadow of doubt, therefore, Criminal Appeal No.303 of 2009, filed by the complainant against of Mst. Shehnaz Bibi stands dismissed having no force.