' MUHAMMAD TARIQ ABBASI, J.---This judgment shall decide the above captioned appeals, revision petition and the Murder Reference as all are outcome of same judgment dated 22.5.2010, passed by the learned Additional Sessions Judge, Layyah, whereby, in a private complaint filed by Manzoor Hussain (hereinafter referred to as the 'complainant') under sections 302/109/34, P.P.C. Against Samar Abbas, Ghulam Sajjad, Muhammad Nawaz and Imtiaz Ahmad (hereinafter referred to as the 'appellants'), they have been convicted under section 302(b), P.P.C. And sentenced in the following terms:- Samar Abbas and Muhammad Nawaz, to death, with compensation of Rs, 1, 00,000/- each payable to the legal heirs of Irshad Hussain (deceased), in default to undergo simple imprisonment for six months each.
Ghulam Sajjad and Imtiaz Ahmad, imprisonment for life and compensation of Rs, 1,00,000/-each payable to the legal heirs of the above named deceased, failing which to further serve simple imprisonment for six months each.
2. The facts are that on 13.5.2007, Manzoor Hussain complainant (PW-13) made statement/Fard Biyan (Ex.PA), contending therein that at about 8.00 p.m., when he along with his brother Nazar Hussain and cousin (Mamu Zad) Kazim Hussain (PW-15) was available at the house of Irshad Hussain (deceased), two unknown persons, while armed with pistols, entered in the, Haveli through the main gate; one of the person, who was taller than the other, asked Irshad Hussain (deceased) for hands-up, whereby the other accused made two successive fires, which hit at the abdomen of Irshad Hussain (deceased) and he fell down; the accused while making aerial firing succeeded in fleeing away; on hearing reports of firing, Mohalladars attracted at the spot; Irshad Hussain, who was unconscious, was shifted to District Headquarter Hospital, Layyah. The complainant further contended that his brother Irshad Hussain (deceased), who was a Patwari, was assaulted by some unknown assailants. On the basis of the above said complaint, FIR No,184 dated 13.5.2007 (Ex.PA/1) was registered under section 324/34, P.P.C. At Police Station City Layyah. The injured succumbed to the injuries on 27.5.2007, hence the offence under section 302, P.P.C. Was also added. DurinL the investigation, the complainant through a supplementary statement dated 16.5.2007, nominated the appellants as murderers of the deceased, with the contention that just after the occurrence, they while running in the street were seen by Niaz Hussain (PW-11) and that Samar Abbas and Ghulam Sajjad (appellants) also made extra-judicial confession before Muhammad Ilyas Raza and Jawad Hussain Khan (PW-6 and PW-7). Hence the appellants were involved in the occurrence.
Subsequently, the complainant preferred a private complaint (Ex.PM) under section 302/109/34, P.P.C., against the appellants, with the contention that the Police did not investigate the case honestly as statements of Riaz Hussain and Ahmad Bukhsh towards the motive were not recorded and brought on the record. Consequently, the proceedings in the private complaint were carried on, the appellants were summoned and charge sheeted. 'They pleaded not guilty and claimed the trial, hence the prosecution evidence was summoned and recorded. As many as 19 witnesses were recorded as PWs, whereas two as CWs. Gist of the evidence, led by the material witnesses was as under:--
(i) PW-2 Dr. Muhammad Aslam Bhular conducted the postmortem examination of the dead body of Irshad Hussain Khan on 27.5.2007, prepared postmortem reports (Ex. PB) and diagrams (Ex. PB/ 1 and Ex . PB/2). He observed as under:-- "His abdomen was dressed interiorly. (1) Anterior abdominal was upto sheath in its central part was deprived off, extending from epigastrium towards the public sympses. The margin of wound were septic, gangerous and discharging pus. (2) Central part of the sheath with abdominal muscle were stiched with prolene. (3) A partially healed firearm wound measuring about 1-1/2 x 1- 1/2 cm was present on anterior lateral upper part of abdomen on the right side. (4) A partially healed firearm wound (geliptical shape) measuring 1-1/2 cm x 1-1/2 cm on anterior lateral upper part of abdomen on the left side. (5) Transverse colon was present on the anterior abdominal wall (as colostomy). (6) Multiple incised wound partially healed in the lower parts of abdomen on both sides (for drains). (7) Sigmoid colon as muscus fistula present exteriorly on the lower part of the abdomen.
' According to this witness, all the above mentioned injuries were antimortem in nature, caused by firearm and cause of death. ii) PW-3 Dr. Abdul Majeed, medically examined Irshad Hussain through report (Ex . PD) on 13.5.2007, when he was in an injured condition and noticed following injuries:-- 1) A lacerated wound 1-1/2 x 1-1/2 cm going deep on the abdominal cavity on the upper most and lateral part of right abdomen. Margin of the wounds were inverted and slightly black in colour and rough. It was fire-arm entrance wound.
2) A lacerated wound 2 cm x 1-1/2 cm eleptical wound in shape, margins were inverted and blackish in colour. This wound was going deep into the abdominal cavity and was on the upper most and lateral side of abdomen on left side. It was fire-arm entrance wound. iii) PW-6 Muhammad Ilyas Raza and PW-7 Jawad Hussain Khan narrated about extra judicial confession allegedly made by Samar Abbas and Ghulam Sajjad appellants before them on 15.5.2007. iv) PW-11 Niaz Hussain stated that on 13.5.2007 at about 8.05 p.m., he saw Samar Abbas and Ghulam Sajjad appellants along with two unknown persons, all armed with pistols, while running in the street of house of Irshad Hussain (deceased) and that later on during the test identification parades, the unknown were found to be Muhammad Nawaz and lmtiaz (appellants).
PW-12 Riaz Hussain and PW-14 Ahmad Bukhsh disclosed the worries of the deceased, allegedly narrated by him before them that Samar Abbas (appellant) was suspecting illicit relations of the deceased with Mst. Tasneem Bibi, sister of the above named appellant. vi) PW-13 Manzoor Hussain narrated almost the same facts as were deseribed by him in the private complaint (Ex.PM). He also attested the Memos (Ex.PK) and (Ex. PL), through which blood stained earth and shalwar (P-9) of the deceased was taken into possession respectively; joined into the proceedings, during which Ghulam Sajjad appellant got recovered .30 bore pistol (P-10) & 3 live bullets (P11/1-3) and secured by the investigating officer through Memo (Ex.PN); participated in the proceedings of test identification parade dated 6.1.2010, during which Imtiaz appellant was identified and also attested the Memo (Ex. PH), by which a pistol (P-4) got recovered by the said appellant was taken into possession by the investigating officer. vii) PW-15 Kazim Hussain, an eyewitness of the alleged occurrence narrated almost the same facts as were stated by the above named complainant (PW-13); participated in the proceedings of test identification parades dated 3.6.2008 and 6.1.2010, during which Muhammad Nawaz and Imtiaz appellants were respectively identified; attested the Memo (Ex.PN), through which pistol (P-10) and 3 live bullets (P11/1-3), got recovered by Ghulam Sajjad appellant were secured by the investigating officer. viii) PW-16 Muhammad Azam Cheema SI investigated the case, during which arrested Ghulam Sajjad appellant and obtained his physical remand; secured 30 bore pistol (P-10) and 3 live bullets (P11/1-3) through Memo (Ex.PN), which were got recovered by the above named appellant; recorded the statements under Section 161 Cr.P.C. Of the concerned witnesses. ix) PW-17 Muhammad Saleem Akbar SI also investigated the case; got transferred Imtiaz appellant from Central Jail, Gujranwala, through application (Ex. PR); submitted application (Ex. PS) for test identification parade of the above named appellant, which was held on 6.1.2010; obtained physical remand of the appellant and secured pistol (P-4) and 3 live bullets (P5/1-3), got recovered by him through Memo (Ex. PH); recorded statements under Section 161, Cr. P. C. Of the concerned witnesses. x) PW-18 Manzoor Hussain SI was also an investigating officer, who arrested Muhammad Nawaz appellant and sent him to the jail for test identification parade; moved application (Ex.PT) for the said parade,, which was accordingly held on 3.6.2008; obtained physical remand of the appellant, who got recovered .30 bore pistol (P-2) and 4 live bullets (P3/1-4)), and taken into possession through Memo (Ex.PG); recorded statements under Section 161, Cr.P.C. Of the concerned witnesses at relevant stages. xi) PW-19 Mahr Masood Ahmad Judicial Magistrate supervised the test identification parades proceedings dated 3.6.2008 and 6.1.2010 and also prepared the reports (Ex. PU & Ex. PV) respectively. xii) CW-1 Mushtaq Ahmad SI recorded statement (Ex.PA) of Manzoor Hussain (complainant) on 13.5.2007; Prepared injury statement (Ex. PD-3/1) Irshad Hussain (then injured); inspected the spot and drafted the rough site plan (Ex.CW1/ A); collected blood stained earth from the place of occurrence and secured it through Memo (Ex. PK); collected two empties (P-1/1-2) from the spot and secured through Memo (Ex. PF); took into possession blood stained clothes (P-6 & P-7) of Irshad Hussain (then injured) through Memo (Ex. PJ); submitted application (Ex. PW) for statement of Irshad Hussain (then injured) and recorded his statement dated 15.5.2007 (Ex.CW-1/B); recorded supplementary statement of the complainant on 16.5.2007, whereby the appellants were nominated; on death of Irshad Hussain on 27.5.2007, prepared inquest report (Ex.PC) and injury statement (Ex. PD / 1) for the purpose of postmortem examination; secured blood stained (shalwar) (P-9) of the deceased through Memo (Ex. PL); recorded statements under Section 161, Cr.P.C. Of the relevant witnesses at relevant stages. xiii) CW-2 Fiaz Haider I arrested Samar Abbas, appellant on 21.8.2007 and thereafter, got sent him to the judicial custody; obtained warrant of arrest against Ghulam Sajjad, Muhammad Nawaz and Imtiaz appellants from the Area Magistrate; got prepared the scaled site plans of the spot (Ex. PE) & Ex. PE/1; prepared the challan against the appellants.
3. After examination of the prosecution as well as court witnesses, reports of the Chemical Examiner, Forensic Science Laboratory and serologist were tendered in evidence as Ex.PX, Ex.PY and Ex.PZ respectively and the prosecution evidence was closed. Thereafter, the appellants were examined under Section 342, Cr.P.C., during which the questions arising out of the prosecution evidence were put to them and they denied almost all the questions while pleading their innocence and false involvement in the case with mala fide. The question "Why this case against you and why the PWs have deposed against you?" was replied by Samar Abbas appellant in the following words:- "All the private PWs are related inter se and inimical to me and witnesses of police were biased and under the influence of complainant party. It was a blind murder. Prosecution has collected tainted fabricated and concocted pieces of evidence at belated stage malafidely in order to falsely implicate me. Motive alleged by the prosecution is absolutely false. Evidence of extra judicial confession is concocted one which has no reality at all. Similarly evidence of Wajtakar is improbable and unbelievable and false one. The entire prosecution story is false. All the pieces of evidence were malafidely manipulated about 2 to 3 months after the occurrence but dates of recording of evidence were fictitiously shown by the police to render the same prompt and weighty. I have been falsely booked in this case by the complainant after demise of the deceased as he was having grudge against me due to the reason that after my engagement with daughter of the complainant namely Shakeela Bibi. I refused to marry with her due to her bad repute, thereafter she was betrothed with another relative of Brothery but that engagement was also broken. This created annoyance in the mind of the complainant as he makes me responsible for this insult among the Brothery and in order to wreck vengeance from me in connivance with the police a false story has been cooked up. I am innocent."
' The above mentioned question was answered by Ghulam Sajjad appellant in the following terms:- - "I am innocent. The PWs are inimical to me and related inter se. All the PWs have falsely deposed against me. Till today being an unseen occurrence the real culprits have not been traced out.
Whole of the investigation is dishonest. DPO Layyah on 8.6.2007 vide dispatch No,984/ F.A.
Constituted an investigation team to trace out the culprits of this un-witnessed occurrence. As per record till 10.7.2007 when the I.O. Received letter No, 984/F.A the culprits of this case were not known. I did not make any extra judicial confession. The statements of witnesses of extra judicial confession were recorded with ante-date. The I.O. Dishonestly tampered with the record of Goshwara of this FIR and the dates were re-written on it by applying fluid to suppress his forgery with respect to preparation of statement of extra judicial confession fabricated with ante dates. In the post mortem application moved by the I.O. Exh.PD/1, inquest report Exh.PC, the names of the accused were not mentioned. Had the statements of extra judicial confession, Wajtakar etc., have been recorded on 15.5.2007, 16.5.2007 or 18.5.2007, then these documents must have contained the names of the known accused. Even otherwise, the alleged evidence of extra judicial confession given and recorded under section 161, Cr.P.C. Is in-admissible in evidence as being joint extra judicial confession. No pistol was recovered from me. After having been tutored by the learned private counsel of the complainant they made dishonest improvements especially w. r. To extra judicial confession and made false statements of extra judicial confession. During my physical remand the complainant got me tortured by police and provided pistol, the recovery of which was fabricated against me."
' Muhammad Nawaz appellant replied the above said question in the following manner:-- "I have no concern with the murder of Irshad Hussain deceased. Irshad Hussain deceased was done to death by some unknown person as evident from the FIR of the case and the assailant of Irshad Hussain were not traced out upto 08.06.2007 and it remained as a blind murder and on strict orders of DPO police with the connivance of complainant fabricated evidence of extra judicial confession.
' Wajtakar, motive and police on one hand has involved his relatives to whom I have no concern has also involved me because long ago, I had given evidence in a bribe case against Irshad Hussain deceased who was a Patwari and the PWs are inter related with each other, so they have falsely deposed against me."
' Whereas, the reply made by Imtiaz appellant towards the above mentioned question was as follows:-- "I have no concern with the murder of Irshad Hussain deceased. Irshad Hussain deceased was done to death by some unknown person as evident from the FIR of the case and the assailant of Irshad Hussain were not traced out upto 8.6.2007 and it remained as a blind murder and on strict orders of DPO police with the connivance of complainant fabricated evidence of extra judicial confession. Wajtakar, motive and police on one hand has involved his relatives to whom I have no concern has also involved me because long ago I had given evidence in a bribe case against Irshad Hussain deceased who was a Patwari and the PWs are inter related with each other, so they have falsely deposed against me."
4. At that time, all had opted to lead evidence in their defence, but refused to make statements under section 340(2), Cr.P.C. Later on, through statements dated 13.5.2010, they refused to lead any evidence in their defence.
5. After completion of all the proceedings, the learned Trial Court pronounced the impugned judgment, whereby convicted and sentenced the appellants in the above mentioned terms.
Consequently the matters in hand.
6. The learned counsel for the appellants have argued that the occurrence was committed by unknown persons and the said fact was reported by the complainant to the Police through his statement (Ex.PA', which resulted into registration of the FIR (Ex.PA/1) against unknown accused; Irshad Hussain when was in an injured condition, also made statement on 15.5.2007 that some unknown assailants had caused injuries to him; thereafter with mala fide, while concocting false story and introducing false witnesses, the appellants were implicated; when the appellants were nominated on 16.5.2007, then the proceedings of test identification parade dated 3.6.2008 and 6.1.2010 were immaterial; the alleged extra judicial confession made by Samar Abbas and Ghulam Sajjad appellants being fabricated and concocted as well as joint in nature has no legal value; the recoveries were planted and concocted, hence not believable; the prosecution had badly failed to establish the case and the charge against the appellants as per the prescribed/settled criteria, hence the appellants were entitled for acquittal and as such the impugned judgment towards their conviction and sentence is not acceptable under the law, therefore by accepting the appeals, the impugned judgment may be set aside and the appellants may be acquitted of the charge.
7. Conversely, the learned Deputy Prosecutor General, assisted by the learned counsel for the complainant has vehemently opposed the appeals, while supporting the impugned judgment towards conviction of the appellants to be quite justified and call of the day. The learned counsel for the complainant while arguing the Criminal Revision No, 332/2010 has also requested that Imtiaz and Ghulam Sajjad appellants may be sentenced in the same manner as Samar Abbas and Muhammad. Nawaz appellants have been dealt with.
8. Arguments advanced by all the sides have been heard and the record has been consulted.
9. Admittedly, the case was of circumstantial evidence. The settled principle/criteria for such like cases is that all the circumstances should be connected in such a manner that they should make a continuous chain, one end of which should touch the dead body, whereas the other around neck of accused. Missing of even a single ring would break the chain and fatal for the prosecution. In this regard, reference may be made to cases "The State v. Manzoor Ahmad" (PLD 1966 Supreme Court 664), Asadullah and another v. The State and another" (1999 SCM R 1034), "Ch. Barkat Ali v. Major Karam Elahi Zia and another" (1992 SCM R 1047), "Sarfraz Khan v. The State and 2 others" (1996 SCM R 188), "Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103) and "Ibrahim and others v. The State" (2009 SCM R 407). Herein below it would be evaluated whether the case has been established as per the above mentioned criteria or otherwise.
10. Admittedly, Samar Abbas appellant is first cousin of the complainant and the deceased. At the time of reporting the occurrence to the Police through Ex.PA, nobody was nominated by the complainant (PW-13). Similarly on 15.5.2007, when Irshad Hussain deceased (then injured) was examined under section 161, Cr.P.C., he stated that some unknown persons had caused injuries to him. On 16.5.2007, the complainant made a supplementary statement, whereby the appellants were named to be the assailants, with the contention that on 13.5.2007, they were seen by Niaz Hussain (PW-11), while running in the street of the house of the deceased, and that on 15.5.2007, Samar Abbas and Ghulam Sajjad appellants also made extra judicial confession, before Muhammad Ilyas Raza and Jawad Hussain Khan (PW-6 & PW-7), whereby they not only admitted their guilt, but also stated about participation of Muhammad Nawaz and Imtiaz appellants in the occurrence. When just after the occurrence, the appellant were seen by the above named PW-11, then why he remained satisfied for two days and then informed the complainant on 15.5.2007 and appeared before the Police on 18.5.2007. The above said conduct of the above named PW seems unnatural, hence unbelievable. Even otherwise, it is not understandable as to why the appellants would make such confession before these witnesses. Admittedly the above said alleged extra judicial confession was joint in nature and made in one sitting, therefore has no value in the eye of law. The question of evidentiary value of the extra judicial confession came up for consideration before the august Supreme Court of Pakistan in the cases "Tahir Javed v. The State" (2009 SCM R 166) and "Sajid Mumtaz and others v. Basharat and others" (2006 SCM R 231), when the following emphasis was laid:-- "17. ... This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra judicial confessions starting from Ahmad v. The Crown PLD 1951 FC 103-107 upto the latest. Extrajudicial 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 extrajudicial confession, the Court must inquire into all material points and surrounding circumstances to 'satisfy itself fully that the confession cannot but be true'. As, an extra judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra judicial confession is made must be kept in view, that joint confession cannot be used against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court."
Furthermore, involvement of Muhammad Nawaz and lmtiaz appellants on the basis of the above mentioned extra judicial confession (which otherwise has no legal value), is also against the mandate of law, being statement of one co-accused against another. Admittedly, as stated above, the appellants were nominated on 16.5.2007, hence the proceedings of test identification parade dated 3.6.2008 and 6.1.2010 were inconsequential, having no legal value. During the statement of CW-1, it came on the record that on 8.6.2007, the DPO Layyah constituted an investigation team to trace out the culprits of the blind murder, meaning thereby that till the above mentioned date, the real culprits were not known or traceable.
11. Sequel of the above discussion is that the prosecution has failed to make out the chain and establish the case as per the above mentioned principle/criteria and as such the charge against the appellants is doubtful, hence they are entitled to the benefit of doubt not as a matter of grace but as of right. It is a settled and universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. We have fortified our view by the judgments of the Hon'ble 'Supreme Court of Pakistan reported as Muhammad Khan and another v.
The State (1999 SCM R 1220), Ghulam Akbar and another v. The State (2008 SCM R 1064), Muhammad Akram v. The State (2009 SCM R 230) and Ayub Masih v. The State (PLD 2002 Supreme Court 1048). In the case of "Ayub Masih (Supra), while quoting a saying of the Holy Prophet (PBUH) "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent" and making reference to the maxim, 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the Hon'ble Supreme Court observed as under:-- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmbst care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
12. Resultantly, the above captioned appeals are accepted, the impugned judgment is set aside and all the appellants namely Samar Abbas, Muhammad Nawaz, Ghulam Sajjad and Imtiaz Ahmad are acquitted of the charge, while extending them the benefit of doubt. They are in custody, hence, while extending them the benefit of doubt. They are in custody, hence be released forthwith, if not required to be detained in any other matter. As a consequence, Murder Reference No,150/2010 is answered in negative and death sentence awarded to Samar Abbas appellant in Criminal Appeal No,621/2010) and Muhammad Nawaz (appellant in Criminal Appeal No,896/2011) is not confirmed.
13. In the light of the above stated discussion, Criminal Revision No,332/2010, fails, hence dismissed.