MUHAMMAD WAHEED KHAN, J.---Through this appeal, the appellants Muhammad Asif and Ijaz have challenged their conviction and sentence awarded to them by learned Additional Session s Judge, Toba Tek Singh vide judgment dated 12.01.2015 in case FIR No,600/2018 dated 13.09.2013, registered under sections 302/34, P .P.C. at Police Station City Toba Tek Singh, whereby they were convicted and sentenced as under: Under section 302(b) read with section 34, P.P.C. awarded life imprisonment each. They were also directed to pay Rs,1,00,000/- each under section 544-A, Cr.P.C. as compensation to the legal heirs of deceased Ghulam Murtaza and in default thereof, they were ordered to further undergo six months' simple imprisonment each. Benefit of section 382-B, Cr .P.C. was also extended to both the convicts.
2. Feeling aggrieved by the judgment passed by the learned trial Court, both the appellants have assailed their conviction and sentence by filing the instant appeal.
3. Complainant Muhammad Ramzan while appearing as PW-6 before the learned trial Court narrated the story of prosecution as under;- "On 12.8.13 at about 10:00 a.m. 1 along with Sultan son of Nawab, Zafar Iqbal and Ghulam Murtaza was present in their house at Lahore. We lived there for labour and also residing with our family there. Asif and Ijaz came to us and Asif said to Ghulam Murtaza come with them to his in-laws at Pir Mahal for effecting compromise with his wife, his wife was annoyed with Ghulam Murtaza deceased. They after consultation sent Ghulam Murtaza deceased with ljaz and Asif accused. They (complainant side) contacted with Ghulam Murtaz a, Asif and Ijaz accused but did not contact with any of them. Then they contacted with father -in-law of Ghulam Murtaza, he informed that Ghulam Murtaza deceased, Asif and Ijaz did not come there at Pir Mahal. Thereafter he contacted with his mother in chak No,487 JB, who also said that deceased Ghulam Murtaza, accused Asif and Ijaz did not come their house. They worried about it then he along with Sultan and Zafar lqbal came at T. T. Singh and they were going to chak No, 487 JB on 13.8.2013 and on the way to Chowk Alhala, Liaqat son of Pannu and Haq Nawaz son of Ghulam Muhammad resident of chak No,487 JB met them and disclosed that Asif and Ijaz accused present in the court confessed before them that they had murdered Ghulam Murtaza deceased in the fields of chak No,299 GB for taking the revenge that sister of Muhammad Asif, Mst. Sumera contracted marriage with the brother of Ghulam Murtaza without their consent, due to this grudge they murdered Ghulam Murtaza. On this information he along with all the PWs Zafar Iqbal, Sultan, Haq Nawaz and Liaqat went to Chak No. 299 GB in Sq No, 18, killa No,3 of Rehmat Ali where dead body of Ghulam Murtaza was lying who was murdered by ljaz and Asif with firearms.
The motive behind this occurrence was that sister of Asif, Mst. Sumera Bibi contracted marriage with the brother of Ghulam Murtaza with her free consent, due to this grudge they committed the murder of Ghulam Murtaza deceased with their common intention. He informed the police, the police came at the spot, recorded his statement which was read over to him and he thumb marked the same in token of its correctness on Ex.P .K."
4. Dr. Zia Aziz SMO (PW-2), on 13.08.2013 conducted postmortem examination on the dead body of deceased Ghulam Murtaza. He observed following injuries on the person of deceased;-
1. A firearm wound of entry 3 cm x 1 cm with abraided collar and inverted edges on the outer end of left eye brow .
No burning, tattooing and blackening were present around the wounds, making an exit wound, measuring 6 cm x 4 cm on the right side of head, 3 cm above right ear with brain matter coming out of the wound, edges of the wounds were averted, left eye was damaged.
2. A firearm wound of entry 1 x 1 cm on the middle of left cheek 3 cm below left eye with abraided colar and averted edges, no burning, blackening were present and making an exit wound 2 x 2 cm through the right ear canal with clotted blood present in right ear .
3. A firearm wound of entry 1 cm in diam eter on the back of left chest at inferior angle of left scapula with inverted edges and abraided colar , no burning tattooing were present around the wound making an exit wound 3 cm in diameter at front of left shoulder with averted edges.
4. A firearm wound of entry 1 cm in diameter on the back of left chest at 2 cm outer to thoracic vertebral column area with abraided colar and inverted edges, no burning tattooing were present around the wound, making an exit wound 3 cm x 2 cm on the front of lower part of left chest. 10 cm below left nipple with inverted edges.
In his opinion the cause of death in this case was shock due to internal and external hemorrhage and injury to the vital organs brain spleen and stomach which was due to injuries Nos, 1 and 4. These injuries were sufficient to cause death of a person in ordinary course of nature, individually and collectively . These injuries were ante-mortem and caused by firearm weapon. The time elapsed between injuries and death was instantaneous and between death and post mortem was within 24 hours."
5. After registration of case police investigated the case and found the appellants as guilty and by placing their names in column No,3, separate reports under section 173, Cr.P.C. submitted before the learned trial Court for commencement of trial. Thereafter , formal charge against the appellants was framed, to which they pleaded not guilty and claimed trial.
6. Prosecution produced as many as fourteen witnesses. Complainant Muhamma d Ramzan himself appeared as PW-6, Sultan Ali appeared as PW-7, Haq Nawaz and Liaqat Ali witnesses of the extra judicial confession appeared as PW-12 and PW-13 respectively , where as remaining witnesses were of formal in nature. Thereafter , prosecution closed its evidence by producing certain documents.
7. After completion of prosecution evidence, statement of appellants were recorded under section 342, Cr.P.C., who opted not to appear as witness under section 340(2), Cr.P.C., however , while answering question (Why this case against you and why the PWs deposed against you?), appellant Ijaz replied as under;- "The brother of Muhammad Asif namely Allah Wasaya married with sister of Ramzan, namely Parveen Akthar and from their wedlock six children were born. Asif and Allah Wasaya were residing in one house and the said house was constructed by Muhammad Asif upon which Allah Wasaya and his wife forcibly possessed that house. Asif was married with my sister . Asif asked so many time through punchiat to vacate the house but Allah Wasaya and his wife did not vacate that house. I also supported the version of Asif accused due to this grudge, I was falsely involved in this case."
Appellant Muhammad Asif in his reply endorsed the above said reply given by Ijaz appellant.
8. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of reasonable doubt, which resulted into their convict ion and sentence as mentioned above.
9. Learned counsel for the appellants argues that admittedly there is no direct evidence available in the instant case and whole prosecution story consists of circumstantial evidence and in order to prove its case prosecution produced the witnesses of last seen, who saw the deceased while going with the appellants, evidence of extra judicial confession, evidence of motive and evidence of recovery in shape of 44 bore rifle allegedly affected from the possession of appellant Ijaz, that the story narrated by the complainant while lodging FIR and while appearing before the learned trial Court as PW-6 is not believable rather creates a lot of doubt regarding the veracity of his statement; that there was not an occasion for the deceased to go with the appellants in order to take back his wife, as there is no evidence on record that both the appellants were related or have any link with the in-laws of the deceased, so, story narrated by both the witnesses of last seen is not probable and plausible; that the next evidence available with the prosecution in the shape of extra judicial confession of both the appellants before Haq Nawaz and Liaqat Ali, who appeared before the learned trial Court as PW-12 and PW-13 respectively , is a weak type of evidence -arid as such is not believable; that the motive as alleged by the prosecution against the brother of the deceased as he had contracted love marriage with sister of the appellant Muhammad Asif is also not believable; that recovery allegedly affected from the appellant Ijaz is inconsequential and finally prayed that appellants be acquitted of the charge by accepting the instant appeal.
10. Learned District Public Prosecutor assisted by the learned counsel for the complainant controverted the arguments advanced by the learned counsel for the appellants and submits that the prosecution has ably proved its case by producing cogent, trustworthy and reliable evidence in shape of witnesses of last seen, evidence of extra judicial confession and medical evidence, recovery of weapon of offence from appellant Ijaz and evidence of motive part of the prosecution story , therefore, instant appeal having no merits is liable to be dismissed.
11. I have heard arguments and perused the record with the assistance of learned counsel for the parties.
12. Prosecution evidence consists of the evidence of last seen, extra judicial confession, motive and recovery . The case of prosecution in brief is that due to previous enmity and run away marriage of sister of the appellant Muhammad Asif with brother of deceased Ghulam Murtaza, the appellants had committed the murder of Ghulam Murtaza. Both the appellants while sharing common intention, went to Lahore to bring Ghulam Murtaza to Toba Tek Singh with them on the pretext to patch up the matter between him and his wife and thereafter committed his murder . This matter was allegedly disclos ed by the appellants through extra judicial confession before Haq Nawaz PW-12 and Liaqat Ali PW-13 and the said PWs disclosed the factum of murder of Ghulam Murtaza to complainant Muhammad Ramzan, real brother of the deceased. During search of Ghulam Murtaza deceased, his dead body was found at the place of occurrence.
13. Admittedly , instant case is a case of blind murder , as nobody claimed to be eye-witness and same is based on circumstantial evidence. The prosecution had relied on the testimony of PW-6 Muhammad Ramzan complainant and PW-7 Sultan Ali witness of the last seen, in whose presence appellants took the deceased Ghulam Murtaza with them from the house of complainant on the pretext to effect compromise with wife of the deceased as she was annoyed with the deceased. Both the witnesses while making their statements before the police and deposing before the learned trial Court have not explained the facts whether wife of the deceased was annoyed with the deceased or both the appellants had any link with the in laws of the deceased or they were related to his in laws in any manner or they have any influence upon the parents of wife of the deceased.
14. The other aspect of the case is that the stance of the prosecution before the learned trial Court was that the deceased was done to death by the appellants for taking the revenge that Mst. Sumera sister of appellant Muhammad Asif contracted marriage with the brother of deceased Ghulam Murtaza without their consent. If for the sake of arguments, this story advanced by the prosecution is believed then taking the deceased by the appellants with them for reconciliation with his wife collapsed automatically , as nobody dare to go or visit with the people who had already strained relations. So, keeping in view these circumstances of the case, this Court sees the stance of the witnesses of the last seen with suspic ion and strongly doubts their veracity . This evidence alone that deceased was lastly seen in the company of appellants was not sufficient to sustain charge of murder , as further evidence is required to link them with crime, such as incriminating recoveries at the stance of the appellants, strong motive or proximity of time and space. Reliance is placed in this regard on the dictum laid down by the august Supreme Court of Pakistan in cases of "Rehmat alias Rehman alias Waryam alias Badsha v. The State" (PLD 1977 SC 515) and "Abid v. The State" (PLD 2018 SC 813).
15 . The next piece of evidence available with the prosecution is in the shape of extra judicial confession, allegedly made by both the appellants before Haq Nawaz and Liaqat Ali, who appeared before the learned trial Court as PW- 12 and PW-13 respectively . While perusing their statements, it is observed that PW-12 Haq Nawaz in his examination in chief deposed as under:- "On 13.08.2013 at Azan time, accused Muhammad Asif and Ijaz came to me and said that we had committed the murder of Ghulam Murtaza and the deceased is your relative, so they be got pardoned for them."
Whereas PW -13 Liaqat Ali in his examination in chief deposed as under;- "At the morning time and Haq Nawaz awoke up then accused Ijaz and Asti accu sed present in the Court came there, before it I was not known to them. The accused made talk with Haq Nawaz and said that they had committed wrong and had taken the revenge of honour and committed the murder of Ghulam Murtaza."
It shows that both the appellants have made joint extra judicial confession before the witnesses and since joint extra judicial confession is not admissible in evidence, therefore, it would not be safe to maintain conviction of appellants on the basis of such type of evidence. Prosecution has not adduced any evidence to show that appellants were motivated by any particular event which compelled them to go and make confession. Reliance in this regard is placed on the judgments passed by the august Supreme Court of Pakistan in cases of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), "Sarfraz Khan v. State and 2 others" (1996 SCMR 188) and "Imran alias Dully and another v . The State and others" (2015 SCMR 155 ).
16. As far as medical evidence is concerned, it just demonstrates that deceased was done to death with firearm weapon and does not connect appellants in the alleged crime in any manner . The next evidence available with the prosecution is in the shape of motive. The complainant while lodging FIR stated that motive behind the occurrence was the marriage of Mst. Sumera sister of appellant Muhammad Asif with brother of Ghulam Murtaza with her free consent and due to this grudge appellants committed murder of Ghulam Murtaza with their common intention. It means that the appellants have no direct motive against the deceased rather it was the brother of deceased who had contracted marriage with sister of appellant Muhammad Asif. In this regard the defence plea is that sister of appellant has normal matrimonial relations with her husband since eight years. They are closely related inter se and sister of the deceased also married with brother of appellant Muhammad Asif. Under the circumstances, since appellant Muhammad Asif has no direct motive against the deceased and prosecution has also failed to prove the motive part of the incident against the appellants.
17. The last piece of evidence available with the prosecution is the recovery of 44 bore rifle alleged affected from the possession of appellant Ijaz. In this regard, there is no denial that report of Punjab Forensic Science Agency is in negative.
18. For what has been discussed above, I find that pieces of circumstantial evidence provided by the prosecution do not connect each other to make a chain which is necessary in such like cases, so it lead to only inference of guilt and nothing else. In dealing with the question of sufficiency of circumstantial evidence to record the conviction, it has to be borne in mind that if on the facts proved, no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be recorded. If, however , such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and conviction cannot be recorded. The august Supreme Court of Pakistan, while dealing with the case titled "Muhammad Hussain v . The State" (2011 SCMR 1 127), held as under;- "Admittedly , it is a case of circumstantial evidence, therefore, as rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall, by itself be sufficient to establish the guilt. However , each circum stance shall be so connected with each other that it shall make one complete chain, without there any broken link. As it has been discussed hereinabove, there are completely broken links of chain to connect the appellant with the commission of murder of deceased, therefore, he would be entitled to benefit of doubt."
19. In view of the above discussion, I am of firm view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, consequently , instant criminal appeal is accepted and conviction and sentence awarded by the learned trial Court to both the appellants Muhammad Asif and Ijaz, is set aside and they are acquitted of the charge. They are in jail, so, they are ordered to be released forthwith if not required to be detained in any other case.