Miss Aalia- Neelum, J--The appellant Muhammad Ramzan son of Saeed Ullah, caste Pauly , resident of Mustafa Colony Road Banglo near Chishtlia Sugar Mill, Farooqa, District Sargodha, was involved hi case F.I.R No.66 of,2002, dated 19.03,2002, offence under Sections 302 & 404 P.P.C, registered at Polio Station City, District Sargodha and was tried by the learned Add!, Sessions Judge, District Sargodha. The learned trial Court seized with the matter in terms of judgment dated 22.12.2003 convicted Muhammad Ramzun (the appellant ) under Section 302(b) PPC for committing 'Qatl-i-Amd' of Abdul Rauf-deceased and sentenc ed him to undergo imprisonment for life as Tazir. The appellant was also convicted under Section 404 PPC and sentenced to undergo 03-years rigorous imprisonment alongwith fine of Rs. 1000/- and in case of default in payment of fine, to further undergo S.I. for one month. Both the sentences awarded to the appellant would run concurrently . The benefit of Section 382-B Cr .P.0 was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial Court, Muhammad Ramzan, the appellant has assailed his conviction through filing instant jail appeal bearing Criminal Appeal No.154-J of 2014.
3. The prosecution story as alleged in the F.I.R (Ex.PG) lodged on the statement of Zahid Saeed (PW-8) is that Abdul Rauf (the deceased) was his (the complainant) close relative and was running business of vegetables and fruits in new Sabzi Mandi. On 19.03.2002 at about 02:30 p.m., he (the deceased) went to his house in Block No. 18 for meal and gave bananas to his niece namely Sabah Farooq (PW-11) and also asked her that some of his guest was coming. Sabah Farooq (PW-11) went to Bazar to purchase yogurt and on return she (PW-11) went on upper story through stairs. After sometime, Saba h Farooq (PW-11) came to call Abdul Rauf (the deceased) for lunch and found him dead on his cot and a piece of rope was also lying on the cot close to dead body . Sabah Farooq (PW-11) called her mother , who, also came from the upper story near Bao Abdul Rauf (the deceased) and found him dead.
On receiving information, the complainant (PW-8) also reached at the spot and came to know that Bao Abdul Rauf (the deceased) had some dispute with Abdul Latif (co-accused since acquitted) regarding property and Bao Ashraf alias Falinger (co-accused since acquitted) who is his agent and Bao Abdul Rauf (the deceased) had to take Rs.4,00,000/- from him. They had doub t that the aforesaid accused had strangulated Bao Abdul Rauf (the deceased) with a rope.
4. Later on during investigation, on 03.05.2002 Muhammad Ramzan (the appellant) and his co-accused Muhammad Shahzad (since convicted) were implicated in this case on the ground of alleged extra judicial confession made by them before Lutuf-ur-Rehman alias Lutfi (PW-7), Bhai Abdur Rehman (PW-12) and Muhammad Yousaf (PW -14).
5. After registration of case, investigation of this case was entrusted to Abdul Jabbar S.I-retired (PW-10), who being Investigating Officer proceeded to the place of occurrence, got recorded statement of complainant (PW-8) and sent the same to the police station for registration of case. He (PW-10) also inspected the dead body , prepared injury statement (Ex.PC), inquest report (Ex.PD) and dispatched the dead body of the deceased under the escort of Sikandar Hayat/C (PW-1) for its postmortem examination. He (PW-10) also took into possession rope (P-6) lying near the deceased through recovery memo (Ex.PH). The investigating officer (PW-10) took into possession two empty boxes of juices (P-7 & P-8) from the place of occurrence through recovery memo (Ex.PJ). He (PW-11) also prepared rough site-plan (Ex.PK) of the place of occurrence and recorded statements of witnesses u/S. 161 Cr.P.C.
After postmortem examination, the police official handed over the last worn clothes of the deceased i.e. Buniyan P- 1, Tehmid P-2 and five sealed parcels in the shape of boxes along with postmo rtem report to the Investigating Officer (PW-10), who took into possession vide recovery memo (Ex.P A). On 24.03.2002, the Investigating Officer (PW-10) summoned Muhammad Saleem draftsman (PW-6), who prepared the scaled site-plan of the place of occurrence (Ex.PF & Ex.PF/1) in the scale of one inch equal to 20 feet. On 03.05 .2002, investigation of this case was entrusted to Ghulam Murtaza S.I. (PW-13), who being the investigating officer of the case, recorded the statements of Abdur Rehman (PW-12) and Lutuf-ur-Rehman (PW-7) under Section 161 Cr.P.C. On 18.05.2002, the investigating officer (PW-13) came to know about the arrest of Shehzad (co-accused since convicted) and Muhammad Ramzan (the appellant) in murder case at P.S. Urban Area, upon which the investigating officer (PW- 13) joined, them in the investigation. On 18.05.2002, accused Muhammad Ramzan (the appellant) and Shahzad (co-accused since convicted) were arrested by the investigating officer (PW-13) in this case. During investigation, accused Muhammad Ramzan (the appellant) made disclosure and got recovered identity card of Abdul Rauf (P-3), wrist watch (P-4) and amount of Rs.4000/- (P-5/1-40), which was secured into possession by the investigating officer (PW-13) through recovery memo (Ex.PE). The investigating officer (PW-13) also prepared site-plan of the place of recovery (Ex.PL).
6. Having found the accused/appellant guilty , the Investigating Officer (PW-13) prepared report under Section 173, Cr.P.C. and sent the same to the Court of competent jurisdiction. On 27.02.2003, the learned trial Court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as fourteen (14) prosecution witnesses.
7. Evidence of last seen as well as extra judicial confession has come out from the statements of Zahid Saeed (PW-8)/complainant, Sabah Farooq (PW-11), Lutuf-ur-Rehman alias Lutfi (PW-7), Bhai Abdur Rehman (PTV -12) and Muhammad Yousaf (PW-14), whereas Dr. Toqeer Sajjad, Sr. Medical Officer (PW-3) who conducted postmortem examination of the dead body of the deceased-Abdur Rauf, observed following injuries on his person:-- 1) There was a ligature mark dark brown in colour measuring 30 cm x 1/2 cm present on the upper neck at the level of thyroid cartilage encircling the front and both sides of neck.
2) Whitish liquid coming out of external urethral orifice.
OPINION After conducting the postmortem examination, the doctor has opined that death was occurred due to injury No. 1, which was ligature around the neck, which produced asphyxia and blockage to the blood supply of the brain leading to cardio-respiratory failure and death. The probable time which elapsed between injury and death was 10 to 15 minutes, whereas between death and postmortem was about six hours.
The statements of remaining prosecution witnesses are formal in nature.
8. On 12.04.2003, the learned D.D.A gave up PW-Abdul Faheem and on 19.07.2003 gave up PWs Mst. Sabiah Begum and Muhammad Awais and closed the prosecution evidence.
9. The appellant was also examined in terms of Section 342 Cr.P.C, wherein he neither opted to appear as his own witness in terms of Section 340(2) Cr.P.C. nor opted to produce any evidence in defence. In response to a particular question that why this case was against him and why the PWs deposed against him, the appellant made the following deposition:-- "I am innocent ."
10. The learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution versio n proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
11. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
12. The prosecution case only relied upon 'the extra judicial confession, which Muhammad Ramzan, accused- appellant allegedly made before Muhammad Yousaf (PW-14), confessing that he and his co-accused-Muhammad Shehzad (co-accused since convicted) committed the murder of Bao Abdur Rauf (deceased). Muhammad Yousaf (PW-14) deposed in his examination-in-chief that on 14.04.2002 he was sitting in his house along with his friend Abdul Rashid at 09:00 p.m. when a person came to meet him and disclosed his name Muhammad Ramzan.
Thereafter , Muhammad Ramzan confessed that on 19.03.2002 he along with his friend Muhammad Shehzad (co- accused since convicted) committed murder of Bao Abdur Rauf. Whereas from the evidence produced by the prosecution on the record, it reveals that the prosecution witness concealed the fact that when he informed to the complainant-Zahid Saeed (PW-8) about the extra judicial confession made by the accused-appellant. The complainant Zahid Saeed (PW -8) deposed during examination-in-chief which reads as under:-- "Ramzan and Shehzad were the actual culprit in this case."
Contrary to the above, the complainant-Z ahid Saeed (PW-8) deposed during cross-examination which reads as under: "It is correct that I made no statement except Ex.PG. It is correct that I have not mentioned the name of Ramzan and Shehzad accused in Ex.PG."
Muhammad Yousaf (PW-14) was not related to the complainant as well as to the deceased and since no one had seen the appellant committing the occurr ence, therefore, appearance of the accus ed-Muhammad Ramzan before Muhammad Yousaf (PW-14) and making of voluntarily confession is note plausib le. Muhammad Yousaf (PW-14) during examination-in-chief deposed which reads as under:-- ----------------similarly you have relation with the deceased and legal heirs of Bao Abdul Rauf deceased and said you arrange a pardon from the legal heirs of both the deceased. I have committed a mistake. After this listen. I went inside the house to connect the police but I came back. Muhammad Ramzan accused fled away ."
Whereas, Muhammad Yousaf (PW -14) during cross-examination deposed which reads as under: "Sharif deceased was of my brotheri while Abdul Rauf, is not from my brotheri."
Allegedly , the accused-appellant confessed on 14.04.2002 before Muhammad Yousaf (PW-14) but the investigating officer after 18.05.2002 joined the accused-appellant in the investigation. Ghulam Murtaza, S.I. (PW-13)-the Investigating Of ficer, deposed during cross-examination which reads as under:-- "On 4.5.2002 I was on patrolling when a respectable man informed me about the accused. He was simply a spy. He told me that if the interrogation against the accused namely Shehz ad and Ramzan is conducted then you may be able to any clue about the murder of Bao Abdur Rauf. ..... I started search of the accused.
On 18.5.2002 I came to know that they are in police station Urban Area."
There was no reason for the appellants to confess about the offence entailing capital punishment. The deposition of Ghulam Murtaza, S.I. (PW-13)-the Investigating Officer, made extra judicial confession doubtful. Ghulam Murtaza, S.I. (PW -13) the Investigating Of ficer, deposed during examination-in-chief which reads as under:-- "On 18.5.2002 it had come to my notice that accused Shehzad and Ramzan were arrested in murder case at P.S. Urban Area. On this information I went to Urban Area Police Station and both the accused were interrogated by me in murder of Bao Abdul Rauf deceased."
13. The extra judicial confession made by the accused to a person, having no influence with the police is not inspiring confidence and the same cann ot be relied upon to prove the guilt of the accused. No reason was assigned by the prosecution as to why accused would confide to the PW with whom he had no intimate relation.
There was also no explanation by the PW as to why he did not inform the complainant and police soon after confession. The testimony of PW was doubtful. There is no doubt that conviction can be based on extra judicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact, and the value thereof depends upon the veracity of the witness, to whom it is made.
Whereas, the accused had no reason to go to the witness, and confess his guilt, by reposing confidence, in a person, who had no influence with the police or relative of the deceased. It is most dangerous to rely upon the same and convict the accused without corroboration. No valid reason was assigned, as to why the accused made confession before Muhammad Yousaf (PW-14). In these circumstances, the extra judicial confession, in the absence of corroboration through an independent evidence, was unreliable and unacceptable. It was thus, improbable and unnatural for the accu sed-appellant to make the alleged extra judicial confession, before Muhammad Yousaf (PW-14). The evidence of Lutuf-ur-Rehman (PW-7) and Bhai Abdur Rehman (PW-12) to the effect that Muhammad Shahzad (co-accused since convicted), made extra judicial confession before them regarding the commission of offence, along with Muhammad Ramzan (the appellant), is neither reliable nor creditworthy , and hardly inspires confidence in the mind of the Court. No extra judicial confession was made by the appellant-Muhammad Ramzan to Lutuf-ur-Rehman (PW -7) and Bhai Abdur Rehman (PW -12).
14. As far as alleged recoveries effected on the disclosure statement of appellant-Muhammad Ramzan i.e. identity card of deceased Abdur Rauf (P-3), a wrist watch (P-4) and amount of Rs;4,000/- (F-5/1-40) from a shop situated in street No.1, Block No.11 on 21.05.2002 are concerned, it was not prosecution case that unknown accused persons after committing murder of Abdur Rauf took away the above mentioned articles and money i.e. identity card of deceased Abdur Rauf (P-3), a wrist watch (P-4) and amount of. Rs.4,000/- (P-5/1-40). Even the identity of the wrist watch recovered was not established by the prosecution, as none of the material witnesses was able to identify the wrist watch recovered on pointing of the accused. Even Ghulam Murtaza, S.I. (PW-13)-the investigating officer deposed during cross-examination that, "They told me that occasionally two persons namely Ramzan and Shehzad who are vagabonds used to travel in this area." The prosecution case was that the accused-appellant is vagabond, then recovery of above said articles from his shop create a serious doubt regarding the truthfulness of a witness.
15. Upshot of the above discussion is that the prosecution has badly failed to bring home the guilt of the accused/appellant and conviction passed by the learned trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused/appella nt. In the case of "Muhammad Akram v.The State" (2009 SCMR 230), it is held as under:-- "Benefit of doubt....Principles--For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
16. I, therefore, accept in toto Criminal Appeal No.154-J of 2014 filed by Muhammad Ramzan-appellant, as a result whereof conviction and sentence recorded by the learned trial Court vide judgment dated 22.12.2003 is set aside and the appellant-Muhammad Azam is ordered to be acquitted of the charge in case F.I.R. No.66 of 2002, dated 19.03.2002, offence under Sections 302 & 404 P.P.C., registered at, Police Station City, District Sargodha and he (the appellant) is directed to be released forthwith if not required in any other case.