Through this criminal appeal, the appellant has called in question the judgment dated 28.03.2009, passed in case/F.I.R. No, 93, dated 13.04.2008, offence under Section 302, PPC, registered at Police Station Karor, District Layyah, whereby, the appellant' has been convicted under Section 302(b), PPC and sentenced to life imprisonment along-with compensation of Rs,50,000/-under Section 544-A, Cr.P.C. payable to the legal heirs of the deceased and in default, whereof the convict will suffer six months simple imprisonment. Benefit- of Section 382-B, Cr.P.C. was extended to the convict/ appellant.
2. Precisely, the prosecution's case as set out in the FIR (Exh.PA) on the basis of complaint (Exh.PA/1) lodged by Azhar Iqbal, complainant (PW-10) is to the effect that his brother Athar Iqbal, an electrician by profession, was residing at Darbar Sawag Sharif. On 13.04.2018 he alongwith his maternal uncle Shahadat Ali came at Darbar Sawag Sharif to meet his brother Athar Iqbal.
Sahibzada Mehboob-ul-Hassan told him that on 12.04.2008, his brother Athar Iqbai went Layyah to purchase electronics and returned at about 10.00 p.m. After gossiping with Mumtaz Hussain, Ashiq Hussain and Gul Muhammad, at about 12.00 p.m. he slept on a cot in front of guest room whereas Ghulam Hussain and Mazhar Abbas slept, on their cots nearby at guest-room. On ,13.04.2018, at about 6.30 a.m., Zafar Iqbal, PW told him that someone had murdered his brother Athar Iqbal and his dead body was lying on a cot. On hue and cry of Zafar Iqbal Langari PW Mumtaz Hussain, Gul Muhammad, Sahibzada Noor-ul-Hassan and other people attracted at the spot and saw the dead body of Athar Iqbal soaked in blood. The motive behind the occurrence is that on 12.04.2018 at morning time, fight took place between the accused Sher -Zaman who is working at Darbar Sharif and Athar Iqbal, deceased.
3. On 14.04.2008, the complainant made supplementary statement before police and implicated the appellant for committing murder of his brother Athar Iqbal. Complainant further stated in his supplementary. statement that at about 8.00 a.m. Dost Muhammad alongwith Muhammad Jahangir and Hafiz Muhammad Hanif, came there and Dost Muhammad Khan informed him that, the appellant had confessed before them that he had committed the murder of Athar Iqbal.
4. The investigation encapsulated into submission of report under Section 173, Cr.P.C., the learned trial Judge took the cognizance, supplied the copies of the statements of witnesses recorded under Section 161, Cr.P.C. to the accused under Section 265(c), Cr.P.C., framed charge, which was denied by the accused while professing innocence and claimed trial. The learned trial Judge ordered the prosecution to produce evidence for establishing the charge.
5. In order to prove the charge against the accused/appellant, the prosecution has produced as many as 12 prosecution witnesses and after tendering report of Chemical Examiner and Seroligist (Exh.PL & Exh.PM) closed the prosecution evidence. Dr. Mehboob Hasnain Qureshi (PW-5), who conducted post-mortem on the dead body of the deceased has observed thebellowing injuries:
1. Depressed crushed injury right check, nose, teeth and mandible. Mandible crushed in three pieces on right side, maxillary bone crushed into pieces, depressed teeth in right side upper and lower jaw into pieces, nozel bone broken into pieces. Injury No, 1 also fractured right temporal bone, brain matter coming out. Teeth have crushed right angle of mouth, puncturing it on three places.
2. Lacerated wound on left side of back of skull, measuring 5 cm x 4 cm. Skull bone broken. Brain matter coming out. Membrane ruptured. Both cars filled with clotted blood.
3. Lacerated wound on right side of chin 6 cm x 1 cm into bone deep.
In my opinion; Injury No, 1 & 2 injured vital organs brain and brain matter was coming out. These injuries caused cardiopulmonal arrest and death. The time lapsed between death and post- mortem was about between 12 to 16 hours and the time between injury and death was 10 to 30 minutes about.
6. After closure of prosecution evidence, the convict/appellant was examined under Section 342, Cr.P.C. wherein he pleaded his innocence. In reply to the question that why this case and why the PWs deposed against him, the convict/appellant replied as under: "PWs deposed under the influence of Sahabzada Ahmad Hassan, as he had to pay labour amount valuing Rs,2,00,000/- of mine which was demanded by me from `Sahabzada Ahmad Hassan in presence of his "Mureedain" so many times but he was putting it off for the next day or the other.
One day prior to occurrence, I strictly demanded wages mentioned above from Sahabzada Ahmad Hassan in presence of PWs and "Mureedain" and he felt his disgrace and became inimical towards me. It was a blind murder committed by some unknown person but I was roped in it at the behest of Sahabzada Ahmad Hassan. I had never made any confessional statement before the PWs and was not having any enmity with the deceased rather he was on friendly terms with me. Motive alleged by the prosecution is absolutely false and has been introduced to strengthen the prosecution case. I was an outsider and was having no relative there due to which I have been falsely roped in this case."
The convict/appellant first opt to produce defence evidence but thereafter on 13.02.2009, he recorded his statement that he does not want to produce defence evidence and closed the same.
The convict/appellant did not . examine himself under Section 340(2), Cr.P.C. On conclusion of trial, learned trial Judge convicted and sentenced the appellant through the impugned judgment as alluded to in earlier Para No, 1 of the judgment.
7. Arguments heard and record of the case has been perused.
8. After hearing learned counsel for the petitioner, Deputy Prosecutor General and going through the record and reappraisal of evidence, it is observed that there is no direct evidence available against the appellant in this case and the prosecution's case rests upon circumstantial evidence.
The evidence, which was available against the appellant can be categorized into three type of evidence:-
(i) The extra judicial confession allegedly made by the appellant before Dost Muhammad (PW-8) and Hafi7 Muhammad Hanif (PW-9) on the intervening night of 13/14.4.2008 at about 11.00 p.m.
(night) at the Dera of Dost Muhammad.
(ii) Zafar Iqbal (PW-4), claims to have witnessed the recovery of weapon of offence i,e, wooden rod(P-9) and Seikp Wrist Watch (P-10) allegedly recovered on pointing out the complainant from the wheat crop field near Darbar Sharif Chak No, 102/TDA, which were taken into possession by the I.O. vide recovery memo Exh.PC, attested by him and Gul Muhammad PW.
(iii)The medical evidence coupled with Chemical Examiner report.
Therefore, in order to decide this appeal, suffice it to observe that after going through the evidence of PW-8 and PW-9, I am convinced that apart from being a weak type of evidence, the circumstances, in which it is claimed by the prosecution that the appellant had made extra judicial confession do not inspire confidence. Admittedly neither both the PWs are lumberdar or the prominent personalities of the area nor the relatives of the deceased. Furthermore, despite making of extra judicial confession by the appellant before them, they did not overpower him for producing before the police and allowed him to go escort free, hence making of extra judicial confession by the appellant before them is unbelievable. Even otherwise, it has been held by the apex Court in various judgments that extra judicial confession is weak type of evidence and such like confession can easily be procured whenever direct evidence of crime is not' available. Until and unless extra judicial confession is not corroborated by any other independent piece of evidence, no reliance can be placed thereon and it would not be safe to maintain conviction of appellant on basis of such type of evidence. Reliance is placed upon case titled "Sajid Mumtaz and others versus Basharat and others" (2006 SCM R 231), "Sarfraz Khan vs. State and 2 others" (1996 SCM R 188), "Nizam-ud-Din versus The State" (2010 PCr. L.J 1730) and "Imran alias Dully and another versus The State and others" (2015 SCM R 155).
9. So far as recovery of weapon of offence is concerned, as per prosecution case, the appellant on 25.4.2008, got recovered blood stained wooden rod (P-9) and Seiko wrist Watch (P-10) from the wheat crop field near Darbar Swag Sharif, Chak No, 102/TDA vide recovery memo (Exh.PC).
Admittedly, recovery of weapon of offence i,e, wooden rod (P-9) and Seiko wrist watch (P-10) was effected from an open place i.e: wheat crop field near Darbar Swag Sharif, which is accessible to every person. Furthermore, wooden rod (P-9) is of common pattern and easily available in market.
Keeping in view the above referred facts, the recoveries are of no help and support to the prosecution evidence and as such, of no consequence.
10. The medical evidence has been furnished by Dr. Mehboob Hasnain Qureshi (PW-5). The medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. Reliance is placed upon case titled "Mursal Kazmi alias Qamar Shah and another vs. The State" "(2009 SCM R 1410) and Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Furthermore, in absence of direct evidence, evidence of experts do not point finger towards the culprit, although the post-mortem report confirms the death of the deceased and report of Chemical Examiner suggests the possibility of human blood but cannot pinpoint the person who caused the incident. Azhar Iqbal, complainant (PW-10) is neither the eye-witness of the alleged occurrence nor had any first-hand knowledge about the occurrence from any other source. His supplementary statement is based upon extra judicial confession allegedly made by the appellant before PW-8 and PW-9, which is weak type of evidence.
11. For what has been discussed hereinabove, the instant appeal is accepted and conviction judgment dated 28.03.2009 is set aside. The appellant is on bail. His surety stands discharged from the liability of his bail bonds.