Asjad Javaid Ghural, J.:- Through the afore-titled criminal appea l under Section 410 Cr.P.C. appellant Akhtar Nawaz has challenged the vires of judgment dated 20.10.2009 passed by the learned Additional Sessions Judge, Chichawatni, District Sahiwal in case FIR No.47 dated 12.12.2006, in respect of an offence under Section 302 PPC registered at Police Station, Kassowal, District Sahiwal, whereby he was convicted and sentenced as under:- Under Sections 302 ( B ) PPC Life Imprisonment as 'Ta'zir' alongwith compensation of Rs.3,00,000/- u/s 544-A to the legal heirs of deceased Fazal ur-Rehman, and in default thereof to further undergo simple imprisonment for 06 months.
Benefit of Section 382-B Cr .P.C was given to the appellant.
2. Mst. Naseem Akhtar , mother of the deceased Fazal-ur-Rehman, has filed Criminal Revision No.395/2009 seeking enhancement of sentence of respondent No.1/Akhtar Nawaz, which shall be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.P A) registered at the instance of Malik Muhammad Ajmal Khan, complainant against unknown accused persons is that his son Fazal-ur Rehman did not return to home till night on 11.02.2006. He became worried whereupon he along-with Aamir Sultan, a real brother of said Fazal-ur- Rehman went in search of Fazal-ur-Rehman and when they reached in the area of Malik Ameer of Chak No.103/12-L, they saw a bicycle of Fazal-ur-Rehman lying in the mastered crop. They entered in the crop and saw the dead body of deceased Fazal-ur-Re hman lying smeared with blood. There was a firearm injury at his right temporal region through and through and they observed foot print of three persons. Many people of the vicinity had attracted there. In the meanwhile, Muhammad Riaz and Sher Afzal resident of 239/T .D.A, Layyah came there and disclosed that at about 6:00 p.m. on 11.02.2006 when they were going from the house of their sister to their brother Mansab Khan on foot, they saw near Chak No.103/12-L that Fazal-ur Rehman, while holding bicycle walking along- with three unknown persons, who could be recognized, if they come across.
4. Muhammad Ishaq, Sub-Inspector (PW-11) had inspected the spot on 12.02.2006, took into possession the blood stained earth vide recovery memo Exh.PD, secured one crime empty of 30-bore (P-1) from the place of occurrence, vide recovery memo Exh.PE, took into possession Cycle (P-2) vide recovery memo Exh.PF , which was lying near the dead body , prepared injury statement Exh.PL and Inquest Report Exh.PM and sent the dead body of Fazal ur Rehman deceased for autopsy , collected last worn clothes of deceased i.e. Shalwar and Qameez (blood stained) vide recovery memo Exh.PG and recorded statements of witnesses u/s 161 Cr.P.C. He had arrested the accused on 14.02.2006 and sent him to judicial lock up on 15.02.2006 for identification parade, which was conducted on 21.02.2006, he obtained his physical remand who led to the recovery of pistol (P-6) (30-bore) alongwith a live bullet (P-7), which was taken into possession vide recovery memo Exh.PJ. He also led to the recovery of bicycle (P-5) of the deceased vide recovery memo Exh.PH, prepared rough site plan Exh.PN and after completion of the investigation got him challaned to face the trial.
5. Dr. Aamir Hussain Khaira (PW-9) had conducted postmortem on the dead body of deceased Fazal ur Rehman on 12.02.2006 at 02:30 p.m. and observed following injuries:- Injury No.1 A firearm wound 3 cm x 2 cm with inverted and black margins on right side of head, just on front of right pinna (entry wound).
Injury No.2 A firearm wound '/ x '/ cm with everted margins on left side of head on front (1.5 cm of left pinna). (Exit wound).
On dissection, the walls of chest, the pleura on both sides and both lungs were found damaged. Both sides of heart were containing blood, lower part of heart was bruised and blackish due to injury on the chest. The blood vessels of thorax were injured underneath the injurie s. All the injuries were ante-mortem. The injuries on the skull and on the back and front of chest and neck were sufficient to cause death due to hemorrhag es and shock in ordinary course of nature as the brain heart and lungs were damaged. The probable duration between injuries and death was immediate while between death and postmortem about 12 hours.
6. At the commencement of the trial, the learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
7. The prosecution had produced 11-witnesses. Besides the report of Chemical Examiner (Ex.PP) and the report of Serologist (Ex.PQ), and report of Forens ic Science Laboratory Punjab Lahore Ex.PTand closed the prosecution evidence. The appellant in his statement recorded under Section 342 Cr.P.C. had denied and controverted all the allegations leveled against him, He neither opted to make statement under Section 340(2) Cr.P.C. nor had he produced any witness in his defence.
8. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant supra, hence the instant criminal appeal has been filed.
9. Learned counsel for the appellant submits that it was a blind murder and no one had seen the same with his own eyes; that the entire set of witnesses mentioned in the crime report has been given-up by the prosecution being won over or unnecessary; that the evidence adduced by the prosecution has been introduced during investigation, which was cooked up and managed to falsely implicate the appellant in the murder in issue; that the evidence of last seen adduced by Muhammad Saleem is negated by the prosecution itself as the Investigating Officer had summoned sniffer dogs to trace out any clue with regard to the real culprits; that only evidence of extrajudicial confession being the weakest type of the evidence has no corroboration at all from any other independent source of evidence; that the recovery of bicycle belonging to the deceased shown to be effected at the instance of the appellant has not been proved by the learned trial Court; that the recovery of pistol 30-bore shown to be effected at the instance of the appellant was sent to the office of Punjab Forensic Science Agency for its comparison with the empty already secured from the place of occurrence and report was received with positive result but the same is not beneficial for the prosecution because crime empty was submitted in the aforesaid office after the arrest of the appellant; that the prosecution has miserably failed to prove the charge against the appellant beyond shadow of reasonable doubt and finally a prayer has been made for the acquittal of the appellant from the charge of murder in issue.
10. Conversely , learned Deputy Prosecutor General appearing for the State has gracefully conceded that the only evidence available with prosecution was the extrajudicial confession, which has no corroboration from any independent source of evidence and, thus, the same is not enough to maintain the conviction and sentence of the appellant.
11. I have heard learned counsel for the appellant, learned Deputy Prosecutor Genera l appearing for the State and have perused the record with their assistance.
12. The prosecution case hinges upon the circumstantial evidence in the shape of last seen, extrajudicial confession and the recovery of pistol as well as bicycle owned by the deceased.
The prosecution case consists of two set of evidence. Initially Malik Muhammad Ajmal Khan set the law in motion, stating therein that Fazal-ur-Rehman was son of his paternal cousin namely Habib Sultan who had passed away .
On 11.02.2006, till night Fazal-ur-Rehman, had not come in the house. On the following day he felt worried and took Aamir Sultan, real brother of Fazal-ur-Rehman, with him and went in search of Fazal-ur-Rehman. They reached in the agricultural land of Malid Umeed situated in Chak No.102/12-L, and saw a bicycle in the mustered crop; they step forward and saw the dead body of Fazal-ur-Rehman, lying smeared with blood. They observed that a fire shot had hit at his right temporal region through and through, they also observed the footprint of three persons near the dead body . Upon their hue and cry, many people of the vicinity attracted there. Muhammad Riaz and Sher Afzal both resident of 239/T .D.A Layyah also reached there. They disclosed that on the preceding day at about 6:00 p.m. they were proceeding from the house of their sister to the house of Mansab Khan by foot when they reached near Chak No.103/12-L, they confronted with Fazal-ur-Rehman while holding bicycle in his hands and walking along-with 2/3 unknown accused persons, who could be recognized, if they come across again. The complainant had shown his suspicion that the said unknown accused persons had committed the murder of Fazal- ur-Rehman. Muhammad Ishaq Sub-Inspector (PW 11) had arrested the appellant and got him sent to judicial lock- up on 15.02.2006 for the purpose of test identification parade. On 21.01.2006, the identification parade was held in jail premises and accused/appellant was identified by the aforesaid witnesses but surprisingly all the witnesses including complainant, Aamir Sultan , the real brother of the deceased and both the witnesses of last seen namely Muhammad Riaz and Sher Afzal, who had claimed that they had seen the deceased lastely in the company of three unknown accused persons and subsequently they identified the accused during test identification parade, which was held in the jail premises under the supervision of Judicial Magistrate, had been given-up by the prosecution. Aamir Sultan was given up being unnecessary, whereas rest of the witnesses were given-up i.e Muhammad Riaz and Sher Afzal being won over and nothing has been left with the prosecution to prove the case.
13. During investigation, new evidence were generated in the shape of statement of Muhammad Saleem (PW-6) being the witness of last seen and two other witnesses namely Anjum Zia (PW-4) and Aamir Shehzad (PW5) being the witnesses of extrajudicial confession. Muhammad Saleem (PW 6), had deposed before the learned trial Court that on 11.02.2006 at Maghrib Wela, he was going on foot from Chak No.103/12-L to Chak No.102/12-L, he saw Fazal-ur-Rehman deceased and appellant Akhtar Nawaz near the mustard crop of Muhammad Ameer where they were sitting and two bicycles were parked beside there. On his confronting the appellant told him that they were old friends and had met after a long time. On the following day, they received an information with regard to the murder of Fazal-ur-Rehman, he went to the place of occurrence and made statement before the police. It is quite astonishing that Muhammad Saleem PW-6 was figured nowhere in the whole episode but subsequently the prosecution had managed him to depose as a witness of last seen. Muhammad Saleem (PW-6) had claimed to have got recorded his statement before the police at the place of occurrence on 12.02.2006. If, the presence of said witness of last seen is taken to be true that he got recorded his statement on 12.02.2006, then what prompted the Investigating Officer and the prosecution to summon sniffer dogs on 13.02.2006, for the purpose to trace out a clue with regard to the real culprits. It goes without saying that the sniffer doges were brought to bring out any hint or clue to proceed further with the investigation and the statement of Muhammad Saleem (PW-6), which had been shown to be recorded on 12.02.2006 was absolutely wrong, it means that the said witness was managed at some subsequent stage and his statement in this regard had been intruded by the police in back dates. The evidence of PW-6 is not worth reliance.
14. Another piece of evidence in the shape of extrajudicial confession was introduced by Anjum Zia (PW-4) and Aamir Shehzad (PW-5) who stated that on 12.02.2006 at 04;45 p.m., they were sitting in the drawing room of Aamir Shehzad when the appellant came there on a bicycle for the purpose to return the same upon which Aamir Shehzad had stated that it was not his bicycle because at the back of said bicycle name of Fazal-ur Rehman was written, who had already been murdered. The appellant had confessed before them that he had committed the murder of Fazal-ur Rehman because a year before he had committed sodomy with him. The appellant in anxiety took the bicycle of Fazal-ur-Rehman, instead of his own and made a request for pardon from the legal heirs of Fazal-ur Rehman. Thereafter , the appellant went out along-with the bicycle owned by Fazal-ur-Rehman, they went to the place of occurrence where police was already present there and made their statements. The statements of both the said witnesses is a bundle of lies because neither they had apprehended the appellant at the spot nor they made him sit there nor furnished any information to the police with regard to extra judicial confession made by the appellant. The story of bicycle as introduced by the prosecution then what was the wisdom behind to let the appellant free along-with bicycle owned by the deceased. This un-natural and inhuman conduct of both the said witnesses could not be easily ignored. According to prosecution own case Muhammad Saleem (PW6) had reached at the place of occurrence at 02:00 p.m. and got recorded his statement, whereas the witnesses of extrajudicial confession have admitted that they got recorded their statements at the place of occurrence before the police at 05:00 p.m. on the same day. As it has already observed that if on 12.02.2006, the evidence of last seen and in the shape of extrajudicial confession had been brought on record then what was the reason behind to bring the sniffer dogs on 13.02.2006 with the intention to trace out the clue with regard to the actual culprits, which shows that the evidence of last seen and extrajudicial confession had been created and manipulated for cooking up a false story just for the purpose to implicate the appellant in the alleged occurrence. The evidence which provided the foundation of the case, has already been given up by the learned prosecutor in consultation with the mother of the deceased including Aamir Sultan a real brother of the deceased and subsequently the evidence gathered by the Investigating Of ficer in connivance with the mother of the deceased could not inspire confidence.
15. Dr. Aamir Hussain Khaira (PW-9) had conducted postmortem on the dead body of deceased Fazal ur Rehman on 12.02.2006 at 02:30 p.m. After conducting examination Medical Officer had observed a firearm wound with inverted and black margins on right side of head, a firearm wound with everted margins on left side of head.
Scalpe on left and right side of head was destroyed, skull was fractured on left and right side of head. Membrains and brains were destroyed-spinal card intact.
He had opined, the cause of death due to shock distraction of brain, due to injury No.1 and 2, which were ante mortem in nature.Probable duration between injury and death was immedi ate and between death and postmortem was within 24-hours. The purpose of post-mortem examination is always to ascer tain the cause of death, number , locale and seat of injuries, kind of weapon used, duratio n between injury and death and between death and post-mortem and the medical evidence alone is not sufficient to raise finger to any specific culprit. In the case in hand medical eviden ce lends no support to the ocular accoun t or the circumstantial evidence, which has already been discarded by this Court.
17. Having scanned the entire prosecution evidence nothing has been brought on record to connect the appellant with the alleged murder in issue. The prosecution has miserably failed to build a chain to establish the link of the appellant with the murder in issue. The prosecution has produced Muhammad Saleem (PW-6) as a witness of last seen and Anjum Zia along with Aamir Shehzad to prove the factum of extrajudicial confession made by the appellant but the same has not been believed and straightaway discarded. It is an admitted fact that the sniffer doges were summoned to get some help on 13.02.2006, to find out a clue with regard to the alleged occurrence, which negates the prosecution evidence, which had been created in back dates and the statements recorded under Section 161 Cr.P.C., were intruded in the record in back dates to show that on arrival of the police at the place of occurrence the witnesses got recorded their statement at the spot but the witnesses could not prove their presence at relevant time at the place of occurrence. The first set of witnesses including the complainant, Aamir Sultan his companions, who went to search the deceased and on the way Muhammad Riaz and Sher Afzal met them, who disclosed that the deceased had been seen by them in the company of three unknown accused persons, seems more close to the reality as footprints of three persons were found available near the dead body but unfortunately the complainant including Aamir Sultan, Muhammad Riaz, Sher Afzal and Judicial Magistrate have been given up being won over and being unnecessary. The bicycle shown to be recovered from the appellant has not been proved and even positive report of Punjab Forensic Science Agency with regard to matching of the crime empty with the pistol shown to be recovered from the appellant could not get any support to the prosecution as the empty was sent to the aforesaid office after the arrest of the appellant, which means that the said empty was manovured before dispatching the same. It has been held by the apex Court in the plethora of judgments that in the cases involving circumstantial evidence, entailing the punishment of capital sentence, the nature of all circumstances must be interlinked making out a single unbroken chain, where one end of the same touches the dead body and the other the neck of the accused. Reliance is placed on case titled "HASHIM QASIM and another versus The STATE" (2017 SCMR 986) wherein it has been held as under:- " Keeping in view the above, the case of the prosecution appears to have been based entirely on circumstantial evidence. Placing reliance on circumstantial evidence, in cases involving capital punishment, the superior Courts since long have laid down stringent principles for accepting the same. It has been the consistent view that such evidence must be of the nature, where, all circumstances must be so inter-linked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. Any missing link in the chain would destroy the while and would render the same unreliable for recording a conviction on a capital charge. Reference is made to the cases of Muhammad Aslam v. The State (PLD 1992 SC 254) and Ch. Barkat Ali v. Major Karam Elahi Zia (1992 SCMR 1047 ).
I am not oblivious of the facts that in the cases of circumstantial evidence, there always remains the chance of fabrication, therefore, the Courts are required to take extra care and caution and examine the case narrowly and if the co-existing circumstances destroy the inference with regard to the accused' s guilt, the same cannot be relied upon. The relevant dictum laid down in the aforementioned judgment of august Supreme Court of Pakistan at page No.994 is as under:- " In cases of circumstantial evidence, there are chances of procuring and fabricating evidence, therefore, Courts are required to take extra case and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the Investigators. If there are apparent indications of designs on part of the investigating agency in the preparation of a case resting on circumstantial evidence, the court must be on its guard against the trap of being deliberately misled into a false inference. If the court fails to observe such care and caution and hastily relies on such evidence, there would be a failure of justice. Reference may be made to the case of Fazal Elahi v. Crown (PLD 1953 FC 214) and of Leizor v. The Queen (PLD 1952 PC 109)."
In view of the said settled principle of law, I am not in agreement with the observation made by the learned trial Court qua the reasons for conviction and sentence of the appellant on the basis of the available evidence. I have come to the irresistible conclusion that the prosecution has miserably failed to substantiate the charge leveled against the appellant through cogent and confidence inspiring evidence.
21. For what has been discussed above, criminal appeal filed by appellant Akhtar Nawaz is allowed , his conviction and sentence awarded by the learned trial Court are set aside and he is acquitted of the charge by giving him the benefit of doubt. He is directed to be released forthwith from jail, if not required to be detained in connection with any other case.
22. Criminal Revision No.395 of 2009 filed by Mst. Naseem Akhtar/complainant seeking enhancement of sentence of respondent No.1/appellant is dismissed for the reasons recorded in the aforesaid detailed judgment.