MUHAMMAD WAHEED KHAN, J.---This judgment shall dispose of Criminal Appeal No.33-J of 2016 filed by appellants Sagheer alias Billa and Mohsin Shah (against their convictions and sentences), PSLA No.211 of 2016 filed by the complainant Nadeem Asghar (against acquittal of respondents Nos.2 to 4/accused persons) and M.R. No.135 of 2016 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant Sagheer alias Billa or otherwise. As all these matters have arisen out of the same judgment, dated 23.12.2015 passed by the learned Addl. Sessions Judge, Sialkot in a private complaint filed under sections 302/148/ 149/109, P.P.C. regarding incident reported in case FIR No.688/2013 dated 28.10.2013 registered under sections 302/ 120-B/148/149, P.P.C. at Police Station Cantt, Sialkot, whereby appellants were convicted and sentenced as under;-
(i) Sagheer alias Billa Under section 302(b), P.P.C. awarded death sentence as Ta'zir. He was also directed to pay compensation of Rs.10,00,000/- to the legal heirs of deceased Noor Hussain under section 544-A, Cr.P.C. In case of default, he was ordered to further undergo six months' simple imprisonment.
(ii) Mohsin Shah Under section 302(b), P.P.C. awarded Imprisonment for life sentence as Ta'zir. He was also directed to pay compensation of Rs.10,00,000/- to the legal heirs of deceased Noor Hussain under section 544-A,Cr.P.C. In case of default, he was ordered to further undergo six months' simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended to him.
Whereas Hassan Raza, Tariq alias Tara and Aamir lqbal co-accused of the appellants were acquitted of the charge by the learned trial Court. Co-accused Ajmal Mithu was declared P.O. by the learned trial Court.
2. Brief facts as narrated by the complainant Nadeem Asghar in private complaint are as under:-- "On 28.10.2013 at about 7:30 p.m., he along with his father-in-law namely Noor Hussain, Talib Hussain and Muhammad Azeem were going after offering Isha prayer from Gulzar-e-Madina Masjid Barth to the house of his father-in-law Noor Hussain whereas Noor Hussain was leading them a few paces. When they reached near the house of Noor Hussain the accused, namely, Hassan Raza, Ajmal alias Mithu (since PO), Aamir lqbal and Tariq alias Tara all armed with pistols. .30 bore were already present there while constituting "Thara". Hassan Raw accused raised lalkara that Noor Hussain be taught a lesson by not effecting compromise. Accused Ajmal alias Mithu fired a shot with his pistol which landed on the back side just under left shoulder of Noor Hussain, second shot was fired by Hassan Raza with his Pistol at Noor Hussain which landed on his left shoulder on back side. The accused Hassan Raza again fired a shot which landed on left flank of Noor Hussain on back side. Then Aamir Hussain fired a shot which hit Noor Hussain on his back just above left flank. The accused Tariq alias Tara fired a shot with his pistol which landed at Noor Hussain on his left flank above left side then Tariq alias Tara fired a shot with his pistol which landed on the right thigh of Noor Hussain. Ajmal alias Mithu fired a shot with his pistol which landed on the back just above the right flank of Noor Hussain. Again Tariq alias Tara fired a shot with his pistol which landed on the right thigh of Noor Hussain. Accused Aamir lqbal fired a shot with his pistol which landed at right thigh of Noor Hussain. This occurrence was witnessed beside the complainant by Talib and Muhammad Azeem in the light of bulb installed at the house of Noor Hussain. Noor Hussain succumbed to the injuries at the spot. The accused managed to flee while abusing and threatening from the place of occurrence.
Motive behind the occurrence was that the son of deceased Noor Hussain namely Azhar Hussain had divorced the sister of accused Hassan Raza and Ajmal alias Mithu.
3. CW-9 Dr. Saddam Hussain who conducted postmortem examination of the deceased Noor Hussain on 28.10.2013 observed following injuries on his person;-.
Injuries
1. A lacerated wound on the back of the chest left side, lateral aspect of the scapular region size 1.5 x 1.5 cm.
(DNP) edges inverted blackening present.
2. A lacerated wound on the back of the chest left side, lateral aspect of the scapular region size 1.5 x 1.5 cm.
(DNP) edges inverted blackening present, 3 c. m. medial to injury No. 1.
3. A lacerated wound on the back of the abdomen left side hypochondrial region size 1.5 x 1.5 cm. (DNP) edges inverted blackening present.
4. A lacerated wound on the back of the abdomen left side lumbar region size 1.5 x 1.5 c.m. (DNP) edges inverted blackening present.
5. A lacerated wound on the back of the abdomen left side lumbar region size 1.5 c.m. x 1.5 c.m. (DNP) 4 cm below the injury No.4 edges inverted blackening present.
6. A lacerated wound on the back of the abdomen right side lumbar region size 1.5 c.m. x 1.5 c.m. (DNP) edges inverted blackening present.
7. A lacerated wound on the right thigh lateral aspect size 2 c.m. x 1 c.m. (DNP) edges inverted blackening present.
8.A lacerated wound on the right thigh lateral aspect 4 c.m below the injury No.7 size 1.5 c.m x 1.5 cm. (DNP) edges inverted blackening present.
9.A lacerated wound on the right thigh lateral aspect 3 c.m. below the injury No.8 size 1.5 c.m. x 1.5 cm. (DNP) edges inverted blackening present.
10.A lacerated wound on the left side of the chest 4 cm lateral to the left nipple size 2 c. m x 1 c.m
(DNP) edges everted.
11.A lacerated wound on the middle part of the chest size 5 c.m. medial to the left nipple size 2 c.m. x 1 c.m. (DNP) edges everted.
12.A lacerated wound on the right side of the chest size 3 c.m. medial to the. right nipple size 1 c.m x 1 c.m (DNP) edges everted.
13.A lacerated wound on the left iliac fossa size 2 c.m. x 1 c.m. (DNP) edges everted 4 c.m. lateral to umbilicus.
14.A lacerated wound on right thigh medial aspect size 1.5 c.m. x 1.5 c.m. edges everted (DNP).
15.A lacerated wound on right thigh medial aspect size 2 c.m. x 1 c.m. edges everted (DNP) 4 c.m. below the injury No. 14.
OPINION: In his opinion, all the injuries are ante mortem in nature and caused by firearm weapon leading to damage to vital organs such as heart and lung and causing excessive hemorrhagic shock which is main cause of death in ordinary course of nature. The probable time that elapsed between injury and death instantaneously and between death and postmortem 8 to 9 hours.
4. After registration of the case, investigation was carried out by the police, however, the complainant feeling dissatisfied with the police investigation filed private complaint and the learned trial Court after recording cursory evidence summoned the appellants along with their co-accused and framed charge which was denied by them, hence, trial commenced.
5. In order to prove its case, prosecution produced as many as seventeen witnesses. Ocular account was furnished by the complainant Nadeem Asghar and Talib Hussain, both appeared as PW-1 and PW-2 respectively. Medical evidence was furnished by Dr. Saddam Hussain, who conducted postmortem examination of the deceased appeared as CW-9. Gulzar Ahmad S.I.,Fiaz Hussain SI and Muhammad Riaz SI, they conducted investigation of the case appeared as CW-7, CW-10 and CW-13 respectively. Mr. Shafqat Shahbaz Raja, Magistrate Section 30, who recorded confessional statement under section 164, Cr.P.C. of accused Sagheer alias Billa appeared as CW-12, whereas remaining PWs were of formal in nature.
Thereafter, prosecution closed its evidence by producing certain documentary evidence.
6. After recording the prosecution evidence, appellants were examined under section 342, Cr.P.C., wherein they denied all the allegations levelled against them. They neither opted to record their statement under section 340(2), Cr.P.C. nor produced any evidence in their defence. It is pertinent to mention here that appellant Sagheer alias Billa while answering the question "Why this case was registered against you and why PWs deposed against you" replied as under;- "I was not nominated in the FIR though I was known to the complainant party being resident of the same area/village. I did not make any confessional statement under section 164, Cr.P.C., the same was planted in connivance with the complainant party."
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellants in the above mentioned terms, hence, this appeal, PSLA and Murder Reference.
8. Learned counsel for the appellants submit that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt; that both the appellants were not nominated in the FIR and that complainant (PW-1) has reported the matter qua the murder of his father-in-law Noor Hussain, wherein he has specifically named four accused persons while attributing them specific role of firing on person of deceased Noor Hussain; that although the appellants were nominated by the complainant through supplementary statement allegedly made on 16.12.2013, wherein present appellants were arrayed as accused in the instant case, by alleging that both the appellants were standing at the corner of the street where the alleged occurrence took place and it was further reiterated by the complainant that appellants were guarding the assailants, who had actually committed the murder of deceased Noor Hussain; that statement under section 164, Cr.P.C. allegedly made by appellant Sagheer alias Billa before the learned Magistrate during the course of investigation, wherein he had confessed his guilt and admitted that he and Mohsin Shah (co- appellant) were responsible of killing the deceased, is of no legal value as there is no other incriminating material available in support of this statement and the said appellant has also retracted from it during the course of trial, so, there was no occasion for the learned trial Court to rely upon the same; that motive part of the incident as alleged by the prosecution is not against the appellants rather it is alleged against co- accused persons Ajmal alias Mithu (since P.O.) and Hassan Raza (since acquitted), whose sister had allegedly been divorced by Azhar Hussain son of the deceased Noor Hussain; that recoveries of .30 bore pistols from the possession of appellants were planted on them and in absence of any direct allegation of murder by the eye-witnesses, mere recovery on their part is of no value and lastly pray that by accepting the instant appeal, appellants may be acquitted of the charge.
9. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant strongly controverted the arguments advanced by the learned counsel for the appellants and submits that although both the appellants are not named in FIR but soon after the occurrence, both of them have been specifically nominated by the complainant Nadeem Asghar while making his supplementary statement on 16.12.2013 in which it has been specifically stated that both the appellants are involved in the murder of deceased, as they were guarding the actual culprits while standing at the corner of the street and two persons, namely, Noman Ghafoor and Ali have informed the complainant about their role; that feeling dissatisfied with the police investigation, complainant (PW-1) had constrained to file a private complaint in which he had reiterated the role allegedly played by both the appellants which has been informed by him to the investigating agency while making supplementary statement as stated above; that during the course of trial both the eye-witnesses, namely, Nadeem Asghar and Talib Hussain remained firm qua the role played by both the appellants during the incident, So under the circumstances, learned trial Court has rightly convicted and sentenced the appellants and lastly prays that since the prosecution has ably proved its case up to the hilt, so, the instant appeal may be dismissed.
10. Learned counsel for the complainant in support of PSLA filed by the complainant against acquittal of accused persons/respondents Nos.2 to 4 submits that there is sufficient incriminating material available on record against the acquitted accused persons and the learned trial Court while convicting co-accused persons/appellants admitted the evidence adduced by the prosecution and has belied upon it, so under the circumstances, there was no occasion for the' learned trial Court to acquit the accused persons/respondents from the charge. Lastly, prays that the instant petition be converted into an appeal and the respondents/accused persons be convicted and punished accordingly.
11. We have heard the arguments of learned counsel for the parties and have perused the record with their assistance.
12. The unfortunate occurrence took place on 28.10.2013 at about 7.30 p.m. within the area of Mauza Bharath Police Station Cantt. District Sialkot, in which father-in-law of the complainant Noor Hussain was done to death. The matter was reported to the police by the complainant Nadeem Asghar on the same day at 8.15 p.m. in which four accused persons, namely, Hassan Raza, Muhammad Ajmal alias Mithu, Aamir and Tariq alias Tara had been nominated with specific roles of causing firearm injuries on person of the deceased Noor Hussain. The occurrence was allegedly happened in the backdrop of a motive that Azhar Hussain son of the deceased had divorced the sister of accused persons Muhammad Ajmal alias Mithu and Hassan Raza. During the course of investigation on 16.12.2013, complainant made a supplementary statement wherein he had nominated the present appellants as culprits, while giving them the roles of guarding the actual culprits by standing at the corner of the street. It is important to mention here that the complainant has nominated the present appellants on the information of two witnesses Noman Ghafoor (PW-4) and one Ali (not produced) and feeling dissatisfied with the police investigation, complainant had opted to file private complaint by citing six accused persons, four nominated in FIR and present appellants nominated through supplementary statement. It is also pertinent to mention here that co-accused Muhammad Ajmal alias Mithu had been declared P.O. and after conclusion of trial, learned trial Cburt while convicting present appellants proceeded to acquit three co-accused persons, namely, Hassan Raza, Tariq alias Tara and Aamir Iqbal.
13. In order to prove its case, the prosecution produced two eye-witnesses, namely, Nadeem Asghar complainant of the case as PW-1 and Talib Hussain as PW-2. Both of them throughout the investigation and trial testified that four accused persons nominated in FIR had actually fired upon the deceased Noor Hussain with their respective weapons and they are the persons who are responsible qua the murder of deceased but the learned trial Court on conclusion of trial while disbelieving their testimonies proceeded to acquit three accused persons out of four nominated accused persons and convicted the present appellants who have been nominated through supplementary statement by the complainant as stated above to whom the complainant and other PWs have not given any role of making fire shots on the person of the deceased rather it has categorically been stated by the complainant (PW-1) and Talib Hussain (PW-2) that present appellants were standing to guard the actual culprits at the corner of the street. We have observed that the learned trial Court has mainly relied upon the confessional statement made by appellant Sagheer alias Billa before the learned Magistrate, in which he had allegedly stated that he along with Mohsin Shah co-appellant are responsible of committing the murder of deceased Noor Hussain but we have observed that except this confessional statement, which has been retracted by the said appellant during the course of trial, there is no incriminating evidence available on record qua the guilt and role allegedly played by him during the alleged incident. Throughout the investigation process and during the trial not a single witness was produced by the prosecution who could corroborate this aspect of the case qua the culpability of the appellant Sagheer alias Billa.
14. We have gone through the proceedings and statement under section 164, Cr.P.C. allegedly made by the appellant Sagheer Ahmad Billa and also adverted to the evidence adduced by Mr. Shafqat Shahbaz Raja, learned Magistrate (CW-12) and found that though the said PW while recording the alleged confessional statement put usual questions to appellant Sagheer alias Billa before recording the said statement but he failed to admonish and put necessary question to the said appellant with respect that his custody shall not be handed over to the police after recording the confessional statement, and it is also found that while recording the alleged statement, handcuf fs of the said appellant have not been removed rather it is specifically written there that appellant "accused namely Sagheer alias Billa (handcuffs) in person" and only fifteen minutes had been given to him to think before recording confession.
15. So under the circumstances, we find that the learned Magistrate (CW-12) while recording the confessional statement of the appellant Sagheer alias Billa has not complied with the provisions of sections 164 and 364, Cr.P.C. and also violated the guidelines enumerated in Volume III, Chapter 13 of the High Court Rules and Orders. Assuming for the sake of arguments that confession was voluntary and as such admissible in evidence, yet the confession having been retracted, it is well established that a retracted judicial confession is seldom made the basis of conviction without being materially corroborated. It is well established that even if a confession is voluntary it must also be established that it was true and for the purpose of establishing its truth it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case. Reliance in this regard is placed on cases of "Nadir Hussain v. The Crown" (1969 SCMR 442), "Dhani Bakhsh v. The State" (PLD 1975 SC 187) and "Ghulam Muhammad v. The State" (1982 PCr.LJ 1217). After having done the above said exercise to compare the alleged confession with the rest of the prosecution evidence, it is established that the entire prosecution evidence right through the investigation and during the trial revolves around the accused persons nominated in FIR and not even a single word has been uttered regarding the culpability of the appellant Sagheer alias Billa as he allegedly claimed in his confessional statement before the learned Magistrate (CW-12).
16. As far as the other appellant Mohsin Shah is concerned, since he has not made any confessional statement, so, at the maximum the confession allegedly made by co-appellant Sagheer alias Billa can be taken into consideration as circumstantial evidence against appellant Mohsin Shah under Article 43 of the Qanun-e-Shahadat Order , 1984.
Therefore, under the given circumstances, since we have already disbelieved the confessional statement of appellant Sagheer alias Billa, hence, this piece of evidence cannot be read against both the appellants.
17. Other incriminating material available on file is the recovery of weapons of offence i.e. .30 bore pistols allegedly affected from both the appellants and its positive reports from the office of Punjab Forensic Science Agency. The crux of arguments of learned counsel for the appellants is that the recoveries have been planted upon the appellants. We have given anxious consideration on this aspect of the case and find that there is no allegation of firing on person of the deceased levelled by both the eye-witnesses against the appellants and their roles as ascribed in the instant crime report is of abetment, so, recoveries allegedly effected from the appellants and its positive reports are of no consequence and it hardly advanced the case of prosecution.
18. As far as motive part of the incident is concerned, it is alleged by the complainant while lodging the instant crime report that the occurrence took place in the backdrop of motive that Azhar Hussain son of the deceased had divorced the sister of accused persons Muhammad Ajmal alias Mithu, Hassan Raza (acquitted) and present appellants have no concern with the motive.
19. So under the circumstances, we find that since the trial was conducted in private complaint filed by the complainant and in whole evidence, there was no incriminating material available against both the appellants qua the fact that they had made any fire on the person of the deceased. The three culprits who had been nominated in FIR with specific roles have been acquitted by the learned trial Court, whereas , fourth accused has not surrendered so far and the only incriminating piece of evidence is left with the prosecution is the confessional statement of appellant Sagheer alias Billa allegedly made before the learned Magistrate and that is not believable for the reasons observed in paragraphs Nos.15 and 16.
20. In sequel to the above discussion, conclusion is irresistible that the prosecution has failed to prove its case beyond shadow of reasonable doubt against the appellants, namely, Sagheer alias Billa and Mohsin Shah, so, instant appeal is allowed and convictions and sentences awarded to them by the learned trial Court vide judgment dated 23.12.2015 are set aside and they are acquitted of the charge by extending them benefit of doubt. They are in jail, so, they be released forthwith if not required in any other case. Resultantly, Murder Reference No.135 of 2016 is answered in NEGATIVE and death sentence of the appellant Sagheer alias Billa is NOT CONFIRMED.
21. As far as PSLA filed by the petitioner/complainant against the acquittal of respondents Nos.2 to 4/ accused persons is concerned, it has also been told that during the pendency of this petition, Hassan Raza one of the respondents has been murdered, so, to his extent this petition has become infructuous.
Learned counsel for the petitioner has failed to identify any mis reading or non-reading of evidence on part of the learned trial Court while acquitting the respondents, so, we find that there is no force in the averments made by the complainant in the instant petition, therefore, the same being without merits is hereby dismissed and leave is refused.